Arizona Hates The Constitution, Loves Nullification
The State of Arizona appears to be the latest state to try to revive the discredited, foolish doctrine of nullification:
Members of the state Legislature, including Arizona’s de facto governor, Senate President Russell Pearce, have introduced a bill that essentially would have Arizona secede from the union without having to do so officially.
It’s called SB1433, It creates a 12-member committee within the legislature that could “vote by simple majority to nullify in its entirety a specific federal law or regulation that is outside the scope of the powers delegated by the people to the federal government…”
Committee members themselves would decide this, then pass along their recommendation to the full Legislature. If, in turn, a majority of state lawmakers go along with the committee then, according to the bill, “this state and its citizens shall not recognize or be obligated to live under the statute, mandate or executive order.”
The nullification committee also would be permitted to review all existing federal laws to see if our legislative geniuses want to toss them out as well.
You can read the bill here, and it’s “Legislative Intent” section is about what you’d expect:
5. At the time the United States Constitution was ratified on June 21, 1788, the sole and sovereign power to regulate the state business and affairs rested in the state legislature and has always been a compelling state concern and central to state sovereignty. Accordingly, the public meaning and understanding of Article I, section 8, the “establishment clause” of the First Amendment and the Tenth Amendment of the United States Constitution, is a matter of compact between this state and the United States as of the time Arizona was admitted to statehood in 1912. Further, the power to regulate commerce among the several states as delegated to the Congress in Article I, section 8, clause 3, United States Constitution, as understood at the time of the founding, was meant to empower Congress to regulate the buying and selling of products made by others, and sometimes land, associated finance and financial instruments and navigation and other carriage across state jurisdictional lines. This power to regulate commerce does not include agriculture, manufacturing, mining, major crimes or land use, and does not include activities that merely substantially affect commerce.
6. At the time the United States Constitution was ratified on June 21, 1788, the commerce clause was not meant or understood to authorize Congress or the federal judiciary to regulate the state courts in the matter of state substantive law or state judicial procedure. This meaning and understanding of Article I, section 8, the Establishment Clause of the First Amendment and the Tenth Amendment of the United States Constitution, as they pertain to the validity of religious sectarian or foreign law as being controlling or influential precedent, has never been modified by any duly ratified amendment to the United States Constitution. Accordingly, the public meaning and understanding of Article I, section 8 and the Tenth Amendment of the United States Constitution is a matter of compact between this state and the United States as of the time Arizona was admitted to statehood in 1912. Additionally, Article I, section 8, clause 18 of the United States Constitution, the “necessary and proper clause,” is not a blank check that empowers the federal government to do anything it deems necessary or proper. It is instead a limitation of power under the common law doctrine of principals and incidents that allows the Congress to exercise incidental powers. There are two main conditions required for something to be incidental, and therefore, “necessary and proper”, the law or power exercised must be directly applicable to the main, enumerated power and it must be “lesser” than the main power.
7. At the time the United States Constitution was ratified on June 21, 1788, Article I, section 8, clause 1 of the United States Constitution, the “general welfare clause,” did not empower the federal government with the ability to do anything it deems good. It is instead a general introduction explaining the exercise of the enumerated powers of Congress that are prescribed in Article I, section 8 of the Constitution of the United States. When James Madison was asked if this clause was a grant of power, he replied, “If not only the means but the objects are unlimited, the parchment (the Constitution) should be thrown into the fire at once.” Thus, this clause is a limitation on the power of the federal government to act in the welfare of all when passing laws in pursuance of the powers delegated to the United States. The Commerce Clause was not meant or understood to authorize Congress or the federal judiciary to establish religious sectarian or foreign statute or case law as controlling or influential precedent. This meaning and understanding of Article I, section 8, the establishment clause of the First Amendment and the Tenth Amendment of the United States Constitution, as they pertain to controlling or influential legal authority, has never been modified by any duly ratified amendment to the United States constitution. Accordingly, the public meaning and understanding of Article I, section 8, the Establishment Clause of the First Amendment and the Tenth Amendment of the United States Constitution, is a matter of compact between this state and the United States as of the time Arizona was admitted to statehood in 1912.
8. Accordingly, we affirm that neither the “Commerce Clause,” the “general welfare clause” or the “necessary and proper clause” of the United States Constitution have ever been expanded, modified or amended and therefore, this state specifically rejects and denies any expanded authority that the federal government may attempt to enforce.
9. The Congress and the federal government are denied the power to establish laws within this state that are repugnant and obtrusive to state law and to the people in this state. They are restrained and confined in authority by the eighteen items as prescribed in Article I, section 8 of the United States Constitution.
10. Congress and the federal government are denied the power to bind the states under foreign statute or case law other than those provisions duly ratified by the Congress as a treaty, so long as the treaty does not violate this state or the United States Constitution.
11. Further, no authority has ever been given to the legislative branch, the executive branch or the judicial branch of the federal government to preempt state legislation.
12. This act serves as a notice and demand to the Congress and the federal government to cease and desist all activities outside the scope of their constitutionally designated powers.
To the extent that this act is merely an effort by the State of Arizona to express its displeasure with Congressional overreach under Article I, Section 8 of the Constitution, it isn’t necesarilly objectionable, and its not much different from the Virginia and Kentucky Resolutions penned by Thomas Jefferson and James Madison in response to The Alien and Sedition Acts in 1798. Where the effort falls apart, though, is that the authors of the Act clearly don’t just view this is a “petition” to Congress, but as an argument that the states have some kind of legal authority to nullify Federal Law.
This is an argument that James Madison explicitly rejected at the time he was helping draft the Resolutions:
Nor can the declarations of either [the citizens or the legislature of Virginia], whether affirming or denying the constitutionality of measures of the Federal Government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge. The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, whilst that will and that opinion continue unchanged.
And if there be no impropriety in declaring the unconstitutionality of proceedings in the Federal Government, where can be the impropriety of communicating the declaration to other states, and inviting their concurrence in a like declaration? What is allowable for one, must be allowable for all; and a free communication among the states, where the Constitution imposes no restraint, is as allowable among the state governments as among other public bodies or private citizens. This consideration derives a weight, that cannot be denied to it, from the relation of the state legislatures to the federal legislature, as the immediate constituents of one of its branches. . . .
Madison clearly saw the Resolutions as a petition to Congress, not a legal act. The doctrine of nullification, though, still came into existence thanks largely to the arguments of slaveholders who believed it was a viable route to challenge Federal authority, and it eventually led them to secession and a disastrous Civil War. One would have thought that the doctrine would have died among the bloody fields of Gettysburg and Antietam, but it came back during the Civil Rights Era when Southern states tried to use it to resist the Supreme Court’s decision in Brown v. Board of Education. In Cooper v. Aaron, the Supreme Court held that such efforts were unconstitutional:
Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, “to support this Constitution.” Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers’ “anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . .” Ableman v. Booth, 21 How. 506, 524.
No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . .” United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a [358 U.S. 1, 19] power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, “it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . .” Sterling v. Constantin, 287 U.S. 378, 397 -398.
Arizona is going down a road that has been thoroughly discredited by history, and was even rejected by the man who is known as “The Father of the Constitution.” Why they hate the Constitution so much baffles me.