March 11, 2011

JOSEPH R. REISERT: Individual states have no right to nullify or thwart federal law

Joseph R. Reisert

Some Republicans in the Legislature have introduced a measure to nullify the new federal health care law. That measure, L.D. 58, contends that the federal health care law violates the U.S. Constitution by interfering with the rights of the states to govern themselves, and proceed to declare the law "null and void in Maine."

In truth, I can neither reflect on the substance of the Affordable Care Act nor recollect the low procedural chicanery employed to pass it in defiance of the obvious will of the people without being filled with anger and disgust such as I have never felt at any action of our national government.

That federal district court judges in Florida and Virginia have invalidated the law demonstrate that the constitutional objections to it are serious and weighty -- something the Obama administration had been far too slow to acknowledge.

Nevertheless, individual states have no right to nullify federal law or to use state law to thwart the operation or enforcement of federal laws.

The argument for nullification is superficially appealing. It starts from the idea that the Constitution entrusts the federal government with a set of limited powers -- a fact that is evident from even a cursory glance at the Constitution's text.

The next step is to observe that, though federal government is limited on paper, those limits are meaningless unless there is some way of making the federal government respect them.

The controversial question is the next one: Who decides? Who has the right to declare a federal law unconstitutional and void? Does the U.S. Supreme Court alone have that right? Or do the state governments somehow share that right?

In the 19th century, when arguments for nullification were first introduced, profound statesmen debated whether the Constitution arose as a compact among the states, or whether it truly derived its powers from the people.

Thomas Jefferson was the most illustrious defender of the "compact among the states" theory, and John C. Calhoun, who served as vice president of the United States and as senator from South Carolina was its ablest advocate.

They argued that, because the Union was made by the states, it was the state governments that retained the right to judge the federal government.

That argument was rejected decisively every time it was raised. When the state of Maryland sought to use its taxing power to attack the Bank of the United States -- which it insisted was unconstitutional -- the Supreme Court unanimously ruled against the state.

Chief John Marshall's logic was unassailable. The Constitution, he argued, was ratified by the people, not by their governments; its preamble begins, "We the people of the United States," not "We the states."

The federal government represents the whole people of the United States, and when it acts, it acts in the name of the whole people of the United States, and those acts bind us as individuals who comprise the people of the United States.

Each state is only a part of the whole, and the government of any state represents only the people of that state, not the whole people of the United States. To allow a part to veto or override the judgment of the whole is absurd. The Maryland Legislature had no right decide for the rest of the United States that the national bank was unconstitutional.

When South Carolina Sen. Robert Hayne defended his state's efforts to nullify the Tariff of 1828, his arguments were destroyed by Massachusetts Sen. Daniel Webster, who reminded his colleague that U.S. government was "made for the people, made by the people, and answerable to the people" -- not by, for, and answerable to the states.

If it could be argued in the early decades of the 19th century that the states made the Union, that argument surely cannot be made seriously after the Civil War and the ratification of the 14th Amendment.

Have our Republican state legislators forgotten the history of their own party? It was Democrats, going all the way back to the founder of the Democratic Party, Thomas Jefferson, who defended state sovereignty against the Union. Calhoun and Hayne? Democrats both. It was Democrats who treasonously made war against the Union 150 years ago.

And it was the Republican Party's greatest president who saved the Union, and who, in his greatest speech echoed Webster's words when he reminded us that our government, our federal government, is a government "of the people, by the people, for the people."

Joseph R. Reisert is associate professor of American Constitutional Law and chairman of the Department of Government at Colby College in Waterville.

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