The below is a response to an article written by Tracy Tatum critiquing a previous post of Daniel Horwitz's in which he supporting my position critical of a bill sponsored by Representative Joe Carr which would require local Tennessee law enforcement officers to arrest Federal agents enforcing new federal gun control laws in Tennessee. At this link you will find the most recent article in this series which links to the previous post on the topic. Rod
Danial Horwitz's responds to Tracy Tarum's critique of his defense of federal supremacy
by Daniel Horwitz
Dear Mr. Tarum,
I fear that you have misread much of my post, or at least
failed to understand it. My defense of
Mr. Williams was not borne out of my own “thoughts” or “conclusions” about the
Supremacy Clause. Nor was it based on my
own personal opinion about the proper role of the Federal government. The primary points I made were objective statements
of the law as I understand it, and they can be summarized as follows:
(1) Pursuant to the Supremacy
Clause of the Constitution of the United States, whenever a state law
conflicts with a Federal law, the Federal law takes precedence;
(2) The power to strike down
Federal laws as unconstitutional is vested exclusively within the Federal
judiciary; and
(3) Obstructing Federal agents in
their official capacity is in fact a crime punishable by 8-20 years in prison
(see 18 USC § 111).
Attacking the claims above on the basis that I am merely a law
student is completely reasonable, and doesn’t bother me a bit. Dismissing the identical views of people like
Professor Fisher, Chief Justice Taney and Father of the Constitution James
Madison (along with, quite frankly, every legal practitioner alive today) is obviously
much less reasonable, but ultimately that doesn't matter, either. Your response to my post betrays a
fundamental misunderstanding of judicial review (point #2, above), and this is
ultimately what makes your aggressive critique of me appear so silly.
As you note, what you find “most disturbing” about my
defense of Mr. Williams is that I “assume that the Federal government has power
over the sovereignty of the States on domestic matters not enumerated.” Of course, a thorough reading of my post
reveals that I never actually suggested anything of the sort. What I did say – and what I will repeat here now
– is that “the power to declare Federal laws unconstitutional is vested
exclusively within Federal courts.” Similarly,
I explained that “there is one and only one mechanism for invalidating a
Federal law: appeal to the Federal judiciary for relief, and convince a Federal
judge to strike the law down as unconstitutional.” These are accurate statements of the law. Thus, even
assuming that citizens do have a constitutional right to own “high-capacity” magazines,
and even assuming that the Obama
Administration's recent initiatives are indeed unconstitutional (and just to
be clear, we probably don’t, and they probably aren’t),
your position that Representative Carr’s bill can pass constitutional muster would
still be wrong. Only
Federal judges have the power to nullify Federal law.
Whatever you and Representative Carr may think or want, the
state of Tennessee
may not usurp the authority of the Federal judiciary, nor take steps to nullify
Federal law in the judiciary’s place.
Your belief that our state may lawfully claim such authority has
effectively turned the concept of judicial review – a bedrock of our
constitutional system – on its head, and it is completely and utterly
wrong. Unlike the Federal judiciary, the
state of Tennessee simply cannot nullify a Federal law. Period.
You are certainly welcome to disrespect titles like “Chief Justice,” and
to condemn the Supreme Court’s rulings as “intentional misinterpretation[s] for personal
or political agendas.” But the Justices
of the Supreme Court have spoken with one voice on this issue since our
nation’s founding, and one thing that you cannot do is overrule them.
Taking as an example your hypothetical about a Federal law
restricting couples to a maximum of two children, here is how such a situation
would likely play out in reality. The
moment that any such law was enacted, it would immediately be challenged in Federal District Court. An injunction prohibiting enforcement of the
law would be granted immediately (indeed, it would be granted long before the
bill was scheduled to go into effect), and the law would be struck down shortly
thereafter for violating the Fourteenth Amendment rights of citizens pursuant
to Skinner v. State of Okl.
ex rel. Williamson (which held that procreation is protected as “one of the
basic civil rights of man”). Simultaneously,
I suppose it’s possible that an enterprising state legislator would introduce a
bill calling for the arrest of Federal agents in order to gin up support from
his base in anticipation of a primary challenge to a Congressman beleaguered by
a recent abortion scandal. Such a bill, however,
like Representative Carr’s bill today, would violate the Supremacy Clause, and
would be an unconstitutional attempt to usurp the power of the Federal
judiciary— the fact that it was premised upon the perceived unconstitutionality
of a Federal bill notwithstanding. Once
again, just to make the point crystal clear: the fact that a Federal bill itself is unconstitutional is not what
matters. What matters is that the
Federal judiciary is the one and only body vested with the power to make that
determination.
On a final note, with regard to the many personal attacks that
you’ve celebrated as having been dripping with “condescension, arrogance [and]
sarcasm”: I don’t know the origin of your intense hatred for Vanderbilt (which
makes you come across a bit crazy, by the way), but allow me a moment to
respond to a few of the things that you appear to hate most about both my
school and about me personally. First, at
least based on my own experience, Vandy isn’t anything like the ivory-tower law
school that you envision. I don’t
perceive it that way, and I honestly don’t think that anyone else does,
either. Second, Vanderbilt Law is not in
the liberal “indoctrination” business; I was taught constitutional law by one
of the most respected and effective conservative legal scholars of the last
century, and unsurprisingly I don’t hold even a single one of the views that
you have erroneously attributed to me. (There
isn’t a Liberal alive who holds those views either, by the way. You’re attacking straw men.) In particular, I found your accusation that I
“believe that subjection to government is the duty of mankind” to be especially
entertaining. Suffice it to say that
such nonsense detracts enormously from your credibility, and makes you seem slightly
unhinged.
Lastly, being so rudely dismissive of someone whom you’ve
never met solely on the basis of your own unsubstantiated belief that they don't
have “skin in the game” and have never “actually achieved something” is fairly childish. In addition to paying taxes here in Tennessee
that I'd much rather see spent on something more worthwhile than litigating
over a bill that all thinking people realize is unconstitutional (which is
really all the justification I need), I actually take great pride in advocating
for the limited-government causes that are near and dear to my heart.
When asked, I also do my very best to provide an objective analysis of
constitutional law for this blog so that its readers can understand the issues
of the day from a purely constitutional (rather than political) perspective. If you find that offensive, sir, I make no
apologies.
In sum, rather than resorting to petty insults in an effort
to support the views you hold, next time it would probably be beneficial to take
the time to read and actually understand
whatever it is that you’re critiquing, then take Representative Faison’s advice and join the rest of us “in
the land of reality.”
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