Steve Benen over at the MaddowBlog came back for round two after apparently realizing some things he didn’t know that he didn’t know.

After his last post on nullification, North Carolina Tenth Amendment Center state chapter coordinator William Kennedy roughed him up pretty good. And a post by Jonathan Adler over at the Volokh Conspiracy schooled him too. That got Benen’s attention, so he brought in “big gun”  law professor extraordinaire David Gans, the director of the Human Rights, Civil Rights, and Citizenship Program at the Constitutional Accountability Center.

Of course, big guns don’t do much more than make noise when loaded with duds.

Benen  rolls out a strategy typically used by keepers of approved opinion. First they try to make the unapproved idea go away with some conventional wisdom spoon-fed with a healthy dose of ridicule. If that fails, they bring in some guy with impressive credentials to couch the same fallacious conventional wisdom  in academic language.

So, let’s take a look at a few of Gans’ assertions.

“Nullification was a 19th century theory, identified most closely with South Carolina Senator John C. Calhoun…”

True, but only because people like Gans, Benen and other so-called experts keep associating nullification with Calhoun. Have you ever noticed every time they post anything about nullification over at MaddowBlog, they include a photo of the infamous South Carolina senator? Milner over at Think Progress does it too. If these guys were intellectually honest, they would include photos of Thomas Jefferson and James Madison with their nullification tomes. After all, the author of the Declaration of Independence and the “Father of the Constitution” first formalized the principles of nullification in 1798 in response to the Alien and Sedition Acts. But of course, allowing an association between nullification and two of the most revered founding fathers doesn’t play well into the “nullification is a crackpot idea nobody with an ounce of common sense or a shred of humanity could possibly embrace.” So, they fixate on Calhoun instead. The whole “evil slaver” association works for them. So they spin history to suit their messaging and then perpetuate their own meme. I have to admit, it’s a pretty good racket.

This theory has been universally rejected throughout the course of American history by the courts as inconsistent with the Constitution. As the Constitution’s preamble makes clear, ‘We the People,’ not the states, ‘ordain[ed] and establish[ed] th[e] Constitution.’

I’m shocked team fed rules for team fed when it comes to defining the powers of team fed.

More on that in a minute. First, let’s take a quick look at the second part of Gans’ statement.

Yes – “We the people” are sovereign in the American system, and it was the people who established the Constitution. But Gans grossly oversimplifies things. The people first established 13 sovereign political societies – states. It was through those states that the people agreed to form a Union. In doing so, they delegated limited, enumerated powers to the new general government, retaining all other powers within the pre-existing political societies. As Alexander Hamilton explained in Federalist 32, “the State governments would clearly retain all rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.”

So, while the states did not establish the Constitution, the people did establish it THROUGH those existing political societies. Madison explained the nature of ratification in Federalist 39.

That this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a national, but a federal act.

Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act.

Simply put: the people of the states delegated the powers. The people of the states retain the authority to determine the extent of the powers delegated.

“The Constitution’s Supremacy Clause provides that federal law is the ‘supreme Law of the Land,’ and Article III of the Constitution gives to the federal judiciary the power to decide ‘all cases arising under the Constitution.'”

Here we have the heart of the fallacy federal supremacists like Gans want us to buy. They would have us believe the people of the states created a federal government with limited, enumerated powers, insisted on a Bill of Rights further limiting power, and then left it to that government to decide the extent of its own power. In other words, we must accept the founders believed a government could exist as a self-limiting institution.


True, the Constitution vests the power to decide cases in the federal judiciary. A vast gulf exists between deciding cases and determining the extent of the powers delegated to the federal government. The courts certainly play a role, but as Jefferson points out, the government created “was not made the exclusive or final judge of the extent of the powers delegated to itself.” Madison expounded on this in the Report of 1800.

Furthermore: dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution (the people of the states), to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another; by the judiciary, as well as by the executive, or the legislature.

However true, therefore, it may be, that the judicial department, is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts.

For a more in-depth look at this issue, read my article Nullification for Lawyers.

“Under the Commerce Clause, Congress has the power to enact nationwide gun laws.”

Gans seems to think the commerce clause trumps the Second Amendment. Sorry buddy, other way around.

Even without the Second Amendment, the federal government lacks general authority to regulate firearms. The Constitution delegates no firearms regulating power to the feds, so that authority remains with the states and the people. But the people of the states insisted that “further declaratory and restrictive clauses should be added” to “prevent misconstruction or abuse of its powers.” The Bill of Rights, including the Second Amendment, further restrict federal power. Even while exercising legitimate constitutional authority, the federal government may not violate the provisions of the Bill of Rights. So even while regulating commerce, the feds cannot infringe on the right to keep and bear arms.

“This does not mean that states always have to enforce federal law, but they cannot ignore the Constitution’s command that federal law is supreme and trumps conflicting state law.”

Federal supremacists say it over and over again. “Supremacy clause, supremacy clause, supremacy clause.”   In truth, federal supremacy has limits. Hamilton made this clear before the Constitution was even ratified.

But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.

These federal supremacists actually believe that the supremacy clause means that the federal government can do whatever it wants, whenever it wants, with no interference. They may tell you that isn’t the case, but what other result can you expect when the federal government itself determines what is and isn’t pursuant to its constitutional powers? In essence, federal supremacists peddle a notion that obliterates the constitutional system, making the courts the de facto sovereign.

Even Abraham Lincoln, a staunch nationalist, acknowledged the insanity of this position.

If the policy of government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court…the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal.

Nullification flows from the delegation of powers in the American system. It provides a vertical check on federal authority. As Jefferson said, the states “are not united on the principle of unlimited submission to their general government.” When the federal government oversteps its bound, nullification remains the rightful remedy, the opinion of “big gun” lawyers not-withstanding.

Mike Maharrey

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