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On the US Supreme Court being the decider of last resort, Madison’s Report of 1800 reads in part, “this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts.”  The government being referred to is the US Government—that is, the federal, or general, government. The parties to the compact are the states.  So the theory here is that the US Supreme Court can have its say after the US President and the Congress, but not as binding on the States.  John Breckinridge, who sponsored the Kentucky Resolutions in the Kentucky House, wrote, “Who are the judiciary? Who are they, but a part of the servants of the people created by the Federal compact?” (James J. Kilpatrick, The Sovereign States: Notes of a Citizen of Virginia (Chicago: Henry Regnery, 1957), 75) The Federal Courts are part of the US Government that was created by the states, so those courts can’t be the final deciders with respect to the states.

Historically, nullification of US Law by a State has been urged by some (such as by South Carolina in 1831). In his book, Nullification, Thomas Woods argues that the VA and Kentucky Resolutions of 1798, the Report of 1800, and the Kentucky Resolutions of 1799 hold that the federal government had been created when sovereign states granted it a few enumerated powers. Also, should the federal (general) government exercise a power it had not been delegated, the states ought to interpose. The Virginia Resolutions of 1798 read in part, “the powers of the federal government, as resulting from the compact, to which the states are parties.” The Kentucky Resolutions of 1799 read in part, “that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy” (Woods, p. 50).

It seems to me that there is indeed a conflict of interest in having the US Supreme Court be the umpire of conflicts between the federal and state governments.  However, nullification presumes that the states did not cede part of their sovereignty.  In other words, were nullification to be allowed, there would be no compact, as any state could exempt itself from any federal law it didn’t like under the claim that the law exceeds the enumerated powers. The states are semi-sovereign, so there must be a means of holding them against their will. I contend that the final decider of contests between the US Government and any of the states should be composed of judges selected from the state supreme courts. That way, the conflict of interest would be eliminated and an individual state could still be held against its will. In other words, we need not succumb to either the hegemony of the US Supreme Court whose members are selected and paid by the US Government, or to the destructive effects of nullification on the federal compact itself.

Source: Thomas Woods, Nullification: How to Resist Tyranny in the 21st Century (Regency, 2010).