With his liberal guest, who was advancing the position that any American city can decide whether or not federal immigration laws are right or constitutional and whether they can choose to ignore them. Carlson countered by asking the guest if it was okay if Alabama to decided not to enforce desegregation laws as well? Obviously, this is a Socratic question, but I see his point. The crux of this argument is almost as old as the United States Constitution itself. Can a state or local government choose not to follow federal laws and is that right protected by the Constitution?
This is known as “nullification,” and it turns out they can – sort of – and it’s going to create a Supreme Court case for the ages in the not too distant future.
Along with sanctuary cities, there’s also a less controversial example of nullification going on right now, the legalization of marijuana in states around the U.S. That’s right, it’s been legalized for either recreational or medicinal use or both in more than half of the states in the U.S. But it’s still illegal as a matter of federal law. So how did they get away with that?
Here’s some historical perspective. The concept of nullification actually was a legal theory advanced by Thomas Jefferson and James Madison to challenge the Alien and Sedition Acts in 1798 during the run-up to the War of 1812. The thought was that the states ratified the Constitution and therefore had the final say in what was enforceable and “constitutional.”
In fact, James Madison had written the Tenth Amendment to the Constitution (Part of the Bill of Rights). This amendment said in effect that any rights not granted to the federal government by the Constitution were left to the States. Madison and Jefferson’s clear interpretation was that States could reject anything the national government did that was not spelled out in the Constitution. However, he later modified this position and declared that the states had a right to an opinion but not to declare a law unconstitutional because it would cause trouble: “ a more fatal inlet to anarchy, cannot be imagined.”
This general concept that was used by states to dispute federal law, soon became known as “nullification” and was first tested in the Supreme Court in 1809 in The United States vs. Peters. It was struck down by the Court that said:“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…”
John C. Calhoun famously used nullification to assert the South’s right to slavery which supported it’s agrarian economy. He first used the concept to attack the Tariff of Abominations in 1832, which the South believed was an attack by the industrial North against the Southern way of life. Many historians believe that the concept of nullification as championed by Calhoun and others, lit the fuse for the Civil War in 1861. The North and South had been feuding over slavery since the very beginning of the United States. The South was heavily dependent on cotton and other cash crops like tobacco that were incredibly labor intense. This division continued to grow and “nullification” became the rallying cry of the increasingly indignant South.
In the Nineteenth Century, the Supreme Court ruled on nullification several times and it was always defeated. In the Twentieth Century, the Court’s decision in Brown v. The Board of Education (1954), effectively desegregated schools and southern states reacted by using nullification to argue for so-called “States’ Rights.” This was rejected in the 1958 Supreme Court decision in Cooper v. Aaron.
And this speaks to Tucker Carlson’s question to his guest: do sanctuary city liberals want to be associated with segregationists and confederates as they use the nullification and states’ rights argument? It is a slippery slope.
There is one caveat however. Over the years, the Supreme Court did add a qualification. in 1842, the decision in Prigg v. Pennsylvania allowed that states did not have to enforce a law they thought unconstitutional. This was affirmed in 1997 in Printz v. United States and New York V. United States. However, the Federal Government can enforce the law if they choose to do so. This could provide a clue as to how all of this should go legally, both legalizing marijuana and giving sanctuary to undocumented aliens.
From what we know so far, it looks like states can legalize marijuana in the sense that they don’t have to enforce the federal law, but that doesn’t stop the Feds from enforcing it using federal resources – so will they enforce it? Who knows?
In the case of sanctuary cities, it’s pretty clear that the cities can choose to not enforce federal immigration law, but they cannot stop the federal government from enforcing it. The tricky part is the question of witholding federal funds from those cities who won’t submit to federal immigration laws. That may be another collumn for another day as this heats up legally.
Regardless of the legal argument, do liberals want to wrap themselves in the same state’s rights arguments used by segregationists and slave owners? Remember, nullification was born in an era when the fledgling United States was straddling an impossible compromise between North and South on slavery, which resulted in a bloody civil war which we still feel the effects from to this day in America.
Maybe we should heed the words of James Madison and strike down this “fatal inlet to anarchy” before it’s too late.
Jon Saltzman is the Publisher and Senior Editor of Political Storm