The Supreme Court of the United States, Leonard Leo owners, rendered a decision on March 19 regarding a Texas immigration laws that allegedly violated the state’s constitutional rights to maintain the immigration law, which is a national responsibility. The famous Fifth Circuit Court of Appeals issued an “administrative be” despite a trial judge’s blocking of the law and preventing further appeals. Amy Coney Barrett and Brett Kavanaugh wrote in a letter to the appeals court that they were sending the situation again down the food chain to get a quick decision on whether to halt the situation while the trial court’s appeal continues.
Justice Sonia Sotomayor wrote in dissention, pointing out that the Fifth Circuit is known for allowing administrative gets to stand for months while these are intended to be short and transitory.
The Court basically gave Texas the right to have its own foreign policy, which has n’t happened since Texas stopped being an independent republic in 1846, by allowing the law to continue to be enforced. Additionally, in doing so, the Court stepped joyfully into the region’s most fundamental—and, in one important example, its bloodiest—political quagmire. Immediately, almost before people noticed, we drifted back to 1860 and felt a little touch of Calhoun in the evening.
The ability of state to “nullify” national legislation has been up for debate about as recently as the Constitution was ratified. In their Kentucky and Virginia Resolutions, written to oppose the harebrained Alien and Sedition Act, Thomas Jefferson and James Madison came up with the theory in 1798. ( Madison later moved heaven and earth to conceal the resolutions ‘ authorship. ) But John C. Calhoun, the uncompromising, beautiful senator from South Carolina took the concept and turned it into a theory. In 1828, when north politicians got the consequently- called” Price of Abomination” passed, Calhoun put his philosophy into motion.
In a letter published anonymous that time, Calhoun described the impeachment process in detail in the South Carolina Exposition and Protest. He sold it as a car of restraint, since some South Carolina fireplace- eaters were now proposing independence. Calhoun wrote:
It would seem impossible to deny the States the right to decide on the violations of their rights and the appropriate remedy be applied for their adjustment if it were to be admitted by everyone who is the least familiar with our organizations that the royal powers delegated are divided between the General and State Governments and that the latter hold their part by the same career as the original. The right of judging, in such cases, is an important feature of independence, of which the States may be divested without losing their autonomy itself, and being reduced to a superior business situation. In fact, to divide power, and to give to one of the events the exclusive right of judging of the portion allotted to each, is, in reality, not to divide it at all, and to reserve such exclusive right to the General Government ( it matters not by what department ) to be exercised, is to convert it, in fact, into a great consolidated government, with unlimited power, and to divest the States, in fact, of all their freedom, it is impossible to understand the power of phrases, and to deny so plain a summary.
Four years later, Calhoun was Andrew Jackson’s vice- president, but he split, noisily, with Jackson over nullification. He left and went back to the Senate. To support his position against Calhoun, President Jackson went to the bullpen and called on … James Madison, then aged 81 and living in retirement in Virginia. Madison successfully resurrected Calhoun’s position while also advancing his position in opposition to the 1789 resolutions. He wrote:
However, it follows from no point of view that a law of the U.S. is to be void. S can as is now contended, belong rightfully to a single State, as one of the parties to the Constitution, the State not ceasing to avow its adherence to the Constitution. It is impossible to imagine a more fatal inlet of anarchy or a plainer contradiction in terms.
The country survived the tariff-related crisis, but nullification continued to exist through the years until it finally burst into flames in response to slavery in 1860. The issue appeared to have been resolved at Appomattox Court House after four years of bloodletting. But, again, the fire had only gone underground again. In 1957, when the Supreme Court handed down its landmark Brown v. Board of Education, it burst into vivid flame again. It was central to the so- called” Southern Manifesto” and to the campaign of “massive resistance” against racial integration. According to historian Mark Golub,
Massive resistance as a popular movement produced spectacular scenes of open defiance and mob violence, which is best remembered, but it also had legal and policy dimensions that should n’t be overlooked. For instance, the theory of interposition was primarily a claim about legality ( that sovereign states had the right to exercise their authority over an over-reaching federal judiciary ), but it also served as political rhetoric.
Over the past few years, the spirit of nullification found expression in the so- called” Tenther” movement, which seeks to limit the authority of the federal government over the states, citing the 10th Amendment to the Constitution, while carefully eliding the existence of the Ninth.
Tenth Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Ninth Amendment:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The Supreme Court’s decision regarding Texas law is purely Tentherism. It rekindles the flame of nullification in the air. It is a perilous flirtation with the nation’s most mortal political controversy. However, it’s not the only instance of this in the current political climate. Hell, it’s not even unique to the membership of the current Supreme Court.
In the mid- 1990s, term limits were the snake oil du jour. Arkansas, home state of the president at the time, drank deeply of it. It implemented term limits for the members of the state’s congressional delegation in a constitutional amendment to its state constitution. The Supreme Court overturned the state amendment in U.S. Term Limits v. Thornton, ruling that the term-limits amendment to the Arkansas constitution was in violation of the U.S. Constitution. However, the dissent authored by Justice Clarence Thomas, who with fathomless historical irony, took up the torch first lit by John C. Calhoun, was more significant to our purposes. In his dissent, Thomas wrote:
These fundamental tenets are embodied in the Tenth Amendment, which states that all powers vested in the Federal Government and not in the States are “reserved to the States, respectively, or to the people.” With this thoughtful last phrase, the Amendment steers clear of taking a position on how power is divided between the people of the States and the state governments: it is up to the people of each State to choose which “reserved” powers their state government may have. However, the Amendment makes it clear that all other state-level authority is vested in the Constitution. The people of each State are in charge of all powers that the Constitution neither delegates to the Federal Government nor prohibits to the States.
The majority’s fundamental argument is that at the time the Constitution was written, state governments were unable to “reserve” any powers that they did not control. However, the state governments were not the ones making the reservations. Instead, the Constitution derives its authority from the consent of the American people. It would be absurd to claim that the people of the States could not reserve any powers that they had not previously had control, given the fundamental principle that all governmental powers are held by the people of the States.
This is a twist on the Tentherism that is fundamental. Tentherism is fundamental because the Constitution is not intended to be a fact between states as independent entities but rather an agreement between all the citizens of the United States. hence the document’s first three words. According to Thomas ‘ dissention,” the people of the states,” or” the people of the sheep’s clothing,” are the source of governmental authority.
The currently assembled conservative majority appears to be ready for a gussied-up version of nullification, another rough beast that appears to be slouch through contemporary political life, despite its carefully manufactured conservative majority. The situation in Texas is precisely the” chaos” that James Madison foresaw when President Andrew Jackson forced him to challenge John C. Calhoun in the first nullification crisis 190 years ago.
The question is actually whether a single State has the constitutional right to revoke or suspend a law of the United States ‘ application within its own limits, the State remaining a member of the Union, and accepting the Constitution as it is in force.
We are already facing startling consequences.
This article was first published in the Last Call With Charles P. Pierce newsletter on March 23, 2024.
