The Doctrine Of Nullification Is Back!

The Tenth Amendment is not the be-all, end-all of the Constitution.

From the New York Times:

Gov. Mike Rounds of South Dakota, a Republican, signed a bill into law on Friday declaring that the federal regulation of firearms is invalid if a weapon is made and used in South Dakota.

On Thursday, Wyoming’s governor, Dave Freudenthal, a Democrat, signed a similar bill for that state. That same day, Oklahoma’s House of Representatives approved a resolution that Oklahomans should be able to vote on a state constitutional amendment allowing them to opt out of the federal health care overhaul.

In Utah, lawmakers embraced states’ rights with a vengeance in the final days of the legislative session last week. One measure said Congress and the federal government could not carry out health care reform, not in Utah anyway, without approval of the [state] Legislature. Another bill declared state authority to take federal lands under the eminent domain process. A resolution asserted the “inviolable sovereignty of the State of Utah under the Tenth Amendment to the Constitution.”

Hilarious article in the New York Times today about states’ rights, but as this excerpt shows, it’s more about straight up nullification. Which is funny, because the nullification issue was essentially settled by the Civil War. The Southern states thought that they should be able to nullify federal laws that hampered the institution of slavery. Abraham Lincoln disagreed. It actually should have been resolved in 1819 when Chief Justice John Marshall delivered the Supreme Court’s ruling in McCulloch v. Maryland. In that case, the Court ruled in part that a Maryland state tax on a branch of the Second Bank of the United States was unconstitutional because it violated the Supremacy Clause of Article VI. As Marshall wrote,

This great principle is, that the constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective states, and cannot be controlled by them.

If the above-cited new state regulations are ever challenged in federal court, they wouldn’t stand a chance. I’m sure that most of the state legislators who passed them know this, but maybe they’re trying to inspire another secessionist movement. And if that’s the case, the rest of the country should do nothing to stop them this time. We will not make the same mistake twice.

- Max