by Daniel Horwitz
 |
| Daniel Horwitz |
In response to Representative
Joe Carr’s decision to introduce
legislation criminalizing any attempts by Federal agents to enforce Federal bans on semiautomatic weapons or ammunition, Rod Williams offered
a polite yet pointed criticism.
“I understand
Joe Carr's fear that . . . the Second Amendment may be trampled upon, but I
think his approach for dealing with this fear is the wrong [one].”
Williams wrote.
“I do not think we can ignore the ‘Supremacy
Clause’ . . . and if I were in the State Legislature, I would not support Joe
Carr’s legislation.”
For this apparent
transgression, Mr. Williams – an ardent conservative – has come under fire from
some of the less-informed members of his party.
Said
Glen Hughes,
President of the Tennessee Republican Assembly: “He is being the happy democrat
[sic] not letting facts and data stand in the way.”
Added Tami Kilmarx, former head of the
Tennessee Tea Party: “That is what he does.
He works so hard keep everyone ‘informed’ with
his dis-information campaign.”
To be clear, the fact that
Mr. Williams was entirely correct in his critique of Representative Carr is not
subject to debate.
As he properly noted
in his post, the Supremacy Clause of the U.S. Constitution plainly states that
“the Laws of the United States . . . shall be the supreme law of the land . .
.
laws of any state to the contrary
notwithstanding.”
In so many words, this
provision of the Constitution (found in Article VI, Clause 2) means that
whenever a state law conflicts with a Federal law, the Federal law takes
precedence.
A provision of this kind, of
course, is essential to a functioning Republic— if states had the power to
decide whether or not Federal laws applied within their borders, there would be
no reason to have Federal laws in the first place.
This would effectively render the
Constitution “a solemn mockery,” Chief Justice Taney once wrote for a unanimous
Supreme Court.
Moreover, as Stanford Law
Professor and constitutional law scholar Jeffrey Fisher recently observed in
response to
asimilar bill that was introduced in Wyoming,
the notion that Federal law trumps state law is one of the simplest principles in
the entire Constitution.
“[T]hat a state
cannot pass a statute that blocks enforcement of an otherwise enforceable
Federal law,”
notes Fisher, “is elementary.”
Believing today that a state
official can arrest a Federal agent for enforcing what the state’s legislators
perceive to be an unconstitutional Federal law is every bit as dim as believing
that a state court can overrule a decision of the Supreme Court of the United
States.
This controversial theory –
known in the literature as “nullification” – has a long and consistently
unsuccessful history dating back to at least 1798, and has been rejected as a
matter of constitutional law since 1809.
Crucially, attempting to nullify a Federal law is much different than simply
refusing to assist Federal officials in its enforcement.
Pursuant to the “anti-commandeering” doctrine
of state sovereignty, states have every right to stand on the sidelines and
require that Federal officials do all the heavy lifting of enforcement
themselves.
This is precisely the reason
why
states are permitted to legalize marijuana as a matter of state law, for example,
and why
this
Oregon Sherriff’s refusal to enforce “[a]ny federal regulation enacted by
Congress or by executive order of the President offending the constitutional
rights of my citizens” is constitutionally permissible.
Actively obstructing a Federal agent from
enforcing Federal law, on the other hand, is an excellent way to earn
8-20 years in Federal prison.
For anyone interested in the
history of nullification, states’ alleged power to nullify Federal laws that they
deem to be unconstitutional was first suggested by James Madison and Thomas
Jefferson in the
Virginia and Kentucky Resolutions of 1798 and 1799— only to be formally repudiated by
ten other states at the time (and then Madison himself shortly thereafter, both
as President and in
his scholarly writings).
Vermont, for
example, resolved that
“[i]t belongs not to the state legislature to decide on the constitutionality of laws made by the general government; this power being exclusively vested in the judiciary courts of the Union,” and
this has remained the accepted view throughout all of constitutional
history.
The theory of nullification was
also rejected by Federalist Papers 33, 39, 44, 78, 80 and 82, which stand for
the general proposition that Federal laws take precedence over state laws, and
that the power to declare Federal laws unconstitutional is vested exclusively
within Federal courts.
Additionally, viewed
from the perspective of the Supreme Court, “judicial review” of Federal laws
has officially been the law of the land since
Marbury v. Madison was
decided in 1803, states’ powerlessness to invalidate Federal decrees has been
accepted doctrine since
United States v. Peters was decided in 1809, and
the fact that states cannot lawfully interfere with Federal agents while they
are performing their official duties has been settled law since 1858, when in
Ableman
v. Booth a unanimous Supreme Court explained as follows:
>“If
the authority of a State, in the form of judicial process or otherwise, should
attempt to control [a] marshal or other authorized officer or agent of the
United States, in any respect, in the [course of his duty], it would be his
duty to resist it, and to call to his aid any force that might be necessary to
maintain the authority of law against illegal interference.”
Since these decisions, the
only other genuine attempts at nullification that I can recall were southern
states’ attempts to prevent school desegregation in the 1950s and 1960s (fail),
and the Civil War.
No state’s attempt to
nullify a Federal law has ever been successful, and in some instances – as in
the
Peters case, for example – the attempts have ended with the arrest
of state officials.
Both today and
throughout American history, it has consistently been understood 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.
As such, you can be
sure that the only practical effect of Representative Carr’s proposal – if it ultimately
passes –
will be the hefty litigation
bill charged to Tennessee
taxpayers when the constitutional validity of the law is successfully challenged
in court by the Obama Administration.
While Glen Hughes and Tami
Kilmarx can be forgiven for their ignorance of the Supremacy Clause and of judicial
review (they’re merely citizen-activists), Joe Carr cannot.
As an elected Representative, Carr took an
oath to uphold the Constitution— and if I were one of his constituents, I would
consider his refusal to comply with that oath to be every bit as disqualifying
as
his
belief that women who have been violently raped can’t become pregnant.
Though I’m not unsympathetic to Carr’s zeal
to protect the constitutional rights of Tennesseans, and though I'm something
less than certain myself that all of the Obama Administration’s proposals will reduce
gun violence (I’m not personally a gun owner, but I find
concerns like these to be quite persuasive,
for example), there is absolutely no excuse for disregarding the Constitution
in order to score a few cheap political points.
As I have
exclaimed
repeatedly, constitutional governance is the essential foundation upon
which our Republic is based, and at least to me, an elected Representative’s
decision to disregard the force of the Constitution is unforgivable.
Daniel Horwitz is a third year law student at Vanderbilt University
Law School, where he is the Vice President of Law Students for Social
Justice. He can be contacted at daniel.a.horwitz@vanderbilt.edu.
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