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Herbert Snyder, Published February 02 2013

Letter: ‘Simple’ misread of history

Concerning a commentary in The Forum on Jan. 30 written by Reps. Bette Grande, R-Fargo, and Roscoe Streyle, R-Minot: They assert they are merely “simple legislators” and then go on to further assert their opinion as constitutional scholars, by interpreting the Supremacy Clause and invoking Alexander Hamilton and the Federalist Papers as a defense.

The Federalist Papers, despite their influence on American thought, are not law. But even if they were, they do not advocate the right of states to overturn or ignore federal law. Federalist No. 39, in fact, states that federal courts are supreme in matters of dispute between federal and state law. More importantly, the rights of states to declare federal laws unconstitutional (nullification) have never been legally upheld in the United States.

I draw the legislators’ attention to the Civil War as the most striking example of nullification’s failure. If they are interested in a less extreme instance, I also draw their attention to the last 200 years of Supreme Court rulings. Among these is Ableman v. Booth (1859), in which the court overruled a Wisconsin Supreme Court decision that attempted (for praiseworthy and humane reasons) to find the Fugitive Slave Act unconstitutional. In it, the court found that “… it was felt by the statesmen who framed the Constitution and by the people who adopted it that it was necessary that many of the rights of sovereignty which the States then possessed should be ceded to the General Government, and that, in the sphere of action assigned to it, it should be supreme, and strong enough to execute its own laws by its own tribunals, without interruption from a State or from State authorities.” Further, the court noted that ratifying the Constitution, including the Supremacy Clause, “… was the voluntary act of the people of the several states, deliberately done for their own protection.”

More recently we have the case of Brown v. Board of Education (1954), in which the Supreme Court declared segregation unconstitutional. In its wake, 10 Southern states passed laws nullifying Brown in an attempt to maintain their right to segregate the races. Although there were a number of legal decisions concerning these attempts to overturn federal law by the Southern states, among the most important was Cooper v. Aaron (1958), in which the justices declared unanimously that states may not nullify federal law.

Without agreeing with the legislators, I applaud their desire to protest what they perceive is an unconstitutional stretch of authority by Congress and the president. I hope, however, that cooler and better informed heads prevail in this matter.

Snyder lives in Fargo.