Law Professors Sternly Lecture Nullifiers, Who Ignore Them

From the Kansas City Star:

“The states can’t simply choose to defy and override a valid federal law,” said Allen Rostron, a professor of constitutional law at the University of Missouri-Kansas City.

The U.S. Constitution deems federal statutes “the supreme law of the land,” Rostron said, a fact that was tested and confirmed by the Civil War. Attempts to invoke state supremacy have been shot down over the years by generations of U.S. Supreme Court decisions.

The Constitution deems any old federal statutes at all to be the supreme law of the land? That’s not what the state conventions were told. But this is the level of analysis we can expect from law professors.

The Missouri [nullification] bills were “patently unconstitutional,” “60 Minutes” legal analyst Andrew Cohen said in a column last year. But they were also “remarkably candid in expressing the seditious level of dissent circulating through some state legislatures.”

Oooh, sedition! So siding with Thomas Jefferson is sedition now. I guess it wouldn’t be the first time.

Of course, the “sedition” talk begs all the relevant questions and assumes federal supremacy as we know it today to be the correct position. It pretends the compact theory of the Union doesn’t exist, or that violence could have reversed it.

State Rep. Brett Hildabrand, a Shawnee Republican, proudly displays his support for state rights on his desk with a small flag with the snake reading, “Don’t tread on me.”

He concedes that the supremacy clause in the U.S. Constitution means that federal law trumps state law.

He shouldn’t make any such concession. “Federal law trumps state law” is an absurd rendering of the Supremacy Clause.

Time and again, U.S. Supreme Court rulings “made it indisputably clear that if there is a conflict between valid federal law and a state constitution, the federal law prevails,” Stephen McCallister wrote in a recent article for the University of Kansas Law Review.

Again, this begs the question. The point nullification addresses is what to do about invalid laws. And telling us that the Supreme Court doesn’t like the idea misses the point entirely. The peoples of the states are the sovereigns in the American system. As Madison explained, they are therefore superior to all branches of the federal government, including the judiciary, in the last resort.

“One of the great dangers these days is that the legitimacy of government action becomes highly suspect,” [Professor Loomis] said. “I don’t think we’re at a crisis, nothing like the Civil War or the fight over civil rights, but I do think it is potentially dangerous.”

The legitimacy of the government’s actions might be in question — that’s a refreshingly candid acknowledgment of what really bothers the establishment about all this nullification talk: the idea that we might question the looters and sociopaths who rule over us, and who operate by a moral code the rest of us would be in jail for.

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  • Joshua Cloud

    Dr. Woods,

    Have you addressed the Dick Act of 1902 anywhere? Specifically, does it invalidate all subsequent gun control legislation? I’ve seen a lot of buzz on the web about that lately, and just wondered if you had a comment as an American historian.


  • Anonymous

    Wow! Finally somebody that can use the phrase “beg the question” correctly. And twice, no less!

  • kirk

    is it a requirement that one know absolutely nothing about the Constitution to be known as a ‘constitutional law professor’?

  • DjangoFreeman

    It is so frustrating, depressing and sad to see the so-called ‘experts’ in many fields simply lie to get what they want. That’s the case here with law professors. They simply ignore the troubling “in Pursuance thereof” language in Art. VI.

    As law students, we simply did NOT study the Constitution itself. We studied the CASE LAW interpreting the Constitution. Inasmuch as Marbury was decided in 1803, that pretty much tells you all you need to know about which branch thinks it gets the final word on EVERY SINGLE ISSUE. If all you read are USSC opinions, you’ll get a VERY wrong idea of what the Constitution actually says. If these opinions tell you that your profession is King of the Universe, you’re likely to agree without much critical thought.

    To me, the Constitution is best interpreted by Historians…