The New York Times published on September 3, 2013 an article written by Robert Levy, chairman of the Cato Institute, on the “limitations of nullification”. I have had the honor of having personal discussions with Mr. Levy on several issues and even had the opportunity to debate him on the issue of nullification in a forum in South Florida. It will be no surprise to Mr. Levy that I disagree with his opinion. Opinions aside, I would like to have the opportunity to present the facts.
Mr. Levy’s main premise is that the States have the option to not agree and not enforce federal law, but they do not have the ability to prevent the federal government from enforcing its laws within the States.
“That’s because federal officials are authorized to enforce their own laws, even if they cannot compel the states to do so. Thus, on the second point, the nullifiers are wrong: states cannot impede federal enforcement of a federal law merely because the state deems it unconstitutional. That is up to the federal courts.”
Mr. Levy’s premise is flawed and a mere review of the facts makes that clear. This country was built upon the foundation of free, independent, and sovereign States.
“Resolved, That these United Colonies are, and of right ought to be, free and independent States…” Lee Resolution June 7, 1776
“We, therefore, the Representatives of the united States of America, in General Congress, Assembled,…solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.” Declaration of Independence July 4, 1776 (emphasis added)
The fundamental foundation of this country is built upon the understanding that our States are free, independent and sovereign in the same manner that Great Britain, Spain, France and Germany are free, independent, and sovereign (e.g the State of Great Britain). Because the States are free, independent, and sovereign countries they had the authority to come together in a contractual agreement, otherwise termed as a “compact” that created the Union and the federal government. The federal government is the creation of the States and the Constitution. The formation of the constitutional compact did not alter that free, independent, sovereign nature.
I find it ironic that Mr. Levy quotes Justice Scalia in Printz v. United States to make his point. Levy’s use of Scalia’s language in this case is legally inaccurate. Justice Scalia takes great effort in this case to maintain the sovereignty of the States over the federal government, citing many examples of how the States are a vital check in the federal power balance. See the multitude of ways Scalia reasserts the sovereignty of the States in this case:
“…[the States] they retained “a residuary and inviolable sovereignty,” (citing The Federalist No. 39, at 245).
“…the Guarantee Clause, Art. IV, §4, which “presupposes the continued existence of the states and . . . those means and instrumentalities which are the creation of their sovereign and reserved rights,” (citing Helvering v. Gerhardt, 304 U.S. 405, 414-415 (1938)).
“Residual state sovereignty was also implicit, of course, in the Constitution’s conferral upon Congress of not all governmental powers, but only discrete, enumerated ones, Art. I, §8, which implication was rendered express by the Tenth Amendment’s assertion.”
“It is the very principle of separate state sovereignty that such a law offends, and no comparative assessment of the various interests can overcome that fundamental defect.” (citing by comparison Bowsher v. Synar – 478 U.S. 714, 736 (1986))
“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.” (citing The Federalist No. 51, at 323)
Nothing Scalia said in Printz ever asserted that the States must just sit back and take federal enforcement of unconstitutional law. As a matter of fact this case says exactly the opposite.
Levy claims James Madison supports the premise that the Supreme Court has a type of Supremacy over the States, quoting The Virginia Assembly Report 1800. This could not be a more inaccurate statement of James Madison’s view of the States and the Supreme Court. A complete reading of the document Levy cites, shows Madison’s point actually contradicts Mr. Levy’s assertion.
“If the decision of the judiciary be raised above the authority of the sovereign parties to the Constitution (i.e. the States)… 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…” Virginia Assembly Report 1800, James Madison (emphasis added)
By this statement it is clear that Madison never meant to assign the Supreme Court supremacy over the sovereignty of the States. As if to punctuate his point, Madison continues;
“consequently, that the ultimate right of the parties to the Constitution (i.e. 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.” Virginia Assembly Report 1800, James Madison. (emphasis added)
With all due respect to the Cato Institute, Mr. Levy’s confidence in the Supreme Court is misplaced, not founded by fact or history, and is contrary to the very foundation of this nation; the sovereignty of the States. We must remember that the Supreme Court is yet the third branch of the federal government; it is not an independent governmental body. For Mr. Levy’s “limits on nullification” to be true, the States are no longer free, independent, and sovereign entities, but merely subjects to the federal government with no recourse to limit or control the power the States themselves delegated to it. For Mr. Levy’s opinion to be true, the only limit upon the federal government’s power is its own will. A central government’s whose only limitation is its own will is a Kingdom and not a Republic.
“for the federal government to enlarge its powers by forced construction of the constitutional charter which defines them…so as to destroy the meaning and effect of the particular enumeration…the obvious tendency and inevitable result… would be, to transform the present republican system of the United States into an absolute, or, at best, a mixed monarchy.” Virginia Resolutions of 1798, James Madison
Mr. Levy is not asserting that the Cato Institute supports the premise that this country is to operate as a Kingdom?