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"Federal agencies conducted 26 raids on medical marijuana facilities in 13 Montana cities [in mid-March, 2011], as agents seized thousands of marijuana plants and froze about $4 million in bank funds. The raids stunned medical marijuana advocates, many of whom believed the Obama administration's policy was to leave states with medical marijuana laws alone. That belief stemmed from Attorney General Eric Holder's announcement in October 2009 that the pursuit of 'individuals whose actions are in clear and unambiguous compliance' with existing state medical marijuana laws would be the lowest priority of U.S. law enforcement. . . . Montana U.S. Attorney Michael Cotter said there was 'probable cause that the premises were involved in illegal and large-scale trafficking of marijuana. . . . When criminal networks violate federal laws, those involved will be prosecuted.' . . . While 15 states have legalized some form of medical marijuana use, the federal government still considers the drug an illegal controlled substance with a high potential for abuse and no accepted medical use. Justice Department officials contend the focus of investigations involving marijuana is on large-scale drug traffickers and not on individual patients. 'We have made clear that we are not going to look the other way while significant drug-trafficking organizations try and shield their illegal efforts from investigation and prosecution through the pretense that they are medical dispensaries,' Justice Department spokeswoman Jessica Smith said. Marijuana advocates say enforcement of illegal activities involving medical marijuana should fall to the states, not the federal government."

Analysis:

This case illustrates a faulty application of federalism. This is not to say that the U.S. Government should have ignored the drug trafficking or that Montana's statute should be plowed over by the FBI.  Rather, the problem lies in a given activity--that of medical use of pot in this case--being simultaneously legal and illegal. This logical contradiction pits one law enforcement agency against another in the same territory. As a result, the citizens, being subject to two governments, are pulled in two directions at once. Just as the states are obliged to recognize the validity of federal statutes, so too the U.S. Government must recognize that of state statutes unless the latter fall within the enumerated powers of the federal government.

While regulating the trafficking of drugs across state lines falls underthe interstate commerce clause, the use of pot for medical purposes--and I would add for any purpose within a state--does not touch the partial sovereignty of the U.S. Government. If the latter is allowed to reach into the domestic domains of the individual state, there is essentially no state left. Such a consolidated empire suffers from the pressures that inevitably arise from central rule over an inherently diverse empire-scale union of republics. Relying on a "lowest priority" from an empire-level official is no guardian at all for state government having any dignity, not to mention force to effect its own laws within its sovereign domain. Moreover, federalism is a system of government that is structural, meaning that it cannot effectively rely on the charity of one government toward the laws of the other. In the example of medical marijuana and drug trafficking, it is significant that the U.S. Government does not distinguish between them. In so doing, the U.S. Government was refusing to accept the validity of the state governments. It as though the U.S. Attorney General were saying to Montana, "You can make a law legalizing medical marijuana but I'm not going to recognize it."

I contend that basic to a system of federalism is the basic respect that the two governments in a given territory have for each other's sovereignty, and thus law-making authority. That the U.S. Government refuses to recognize a state law does not nullify that law, just as nullification by a state, such as South Carolina in 1832, does not invalidate a U.S. statute.  Based on the foundation of mutual respect, the respective governments must be held back from trespassing on the other's domains. The rub, as it were, lies in the matter of an umpire to resolve such disputes, for the U.S. Supreme Court is a branch of one of the two governments. It would be telling indeed were that court to affirm that the U.S. Government need not recognize Montana's law. This could very well happen, in which case it would be natural for the disrespected state to seek its independence from the union. I suspect that such a fate awaits the United States, though when I know not. The reason lies ultimately in the arrogance of superior power, as in one who has been able to define the debate without dispute.

Click to add a Comment or Question (or View Posted Comments) on medical marijuana and drug trafficking under federalism.

Source: http://www.usatoday.com/printedition/news/20110318/medmarijuanaraids18_st.art.htm
(John S. Adams, "Medicinal Pot Raids in Mont. Stun Activists," USA Today, March 18, 2011, p. 3A)

As to whether the supreme courts of particular American states, or republics, should be able to declare the general (U.S.) government’s health-insurance mandate unconstitutional in the sense of being an encroachment of the government of the union beyond its enumerated powers, it is typically presumed that the U.S. Supreme Court is the rightful and proper umpire--the court of last resort on disputes on federalism applied to particular legislation. Forgotten is the argument made by Thomas Jefferson against that court’s suitability owing to its institutional conflict of interest in contests between the U.S. Government, of which the U.S. Supreme Court is a branch, and a goverment of one of the several states.  Typically, we do not consider how the conflict of interest can be solved. We do not “think outside the box.” Rather, we feel resigned to have branch of one of the parties of the dispute act as the final decider short of a constitutional amendment.

We do not consider, for example, that perhaps a council of the States’ Supreme Court Chief Justices (or their attorney generals) might be a less problematic alternative. We need not throw up our hands and leave it to any state to nullify any federal law it doesn’t like. We can design an umpire of federalism in such a way that the the encroaching tendency of the center is counterbalanced by the interests of the states in deciding the question. That is to say, we ought to design the umpire mechanism in such a way that tilts in the direction of the states, given the tilt of power in the other direction historically and today. It is well worth reviewing Jefferson’s argument so this doesn’t sound so radical. Given our aversion to real change, the need for a constitutional amendment must be backed up by a mainstream figure.

Essentially, Jefferson maintained that there is a conflict of interest in one branch of the US Government–the US Supreme Court–being the ultimate umpire in federalism disputes between a State and the US Government. It is like having a member of one of the two baseball teams playing being the umpire. In college, I was a referee for intermural football. I was stunned when the coordinator of the refs, himself a student, assigned himself to referee the game involving his own fraternity. When I suggested that there is a conflict of interest in his self-assignment, he dismissed my concern out of hand. Sadly, this sort of attitude characterizes Americans in general with respect to institutional conflicts of interest in our government (and between business and government). I contend that we are blind to such ethical problems, and the viability of our federal system of public governance, which includes semi-sovereign States, is paying the price in the form of a massive imbalance.

One might counter that the separation of powers in the US Government make the US Supreme Court independent of the Congress and President. According to Thomas Woods, the separation of powers in the federal government cannot be relied on to distinguish the US Supreme Court’s interest from its basis as a branch of the US Government because the “three federal branches can simply unite against the independence of the states and the reserved rights of the people.”[i] In 1825, Thomas Jefferson wrote, “It is but too evident, that the three ruling branches of [the Federal government] are in combination to strip their colleagues, the State authorities, of the powers reserved by them, and to exercise themselves all functions foreign and domestic.”[ii] Jefferson believed that in a dispute between the states and the federal government, the resolution should not come from a branch of the federal government. With the US Supreme Court as the umpire on federalism questions, the states “would inexorably be eclipsed by the federal government.”[iii] Woods observes, “(S)ince the federal courts are themselves a branch of the federal government, how can the people be expected to consider them impartial arbiters? The [US] Supreme Court itself, after all, although usually pointed to as the monopolistic and infallible judge of the constitutionality of the federal government’s actions, is itself a branch of the federal government.”[iv] For one thing, US Supreme Court justices are selected by the US President and confirmed by US Senators. In this process, even an unconscious “similarity of perspective” is likely to be sought or welcomed even with respect to one’s vantage-point (i.e., perspective). Spencer Roane, a Virginia judge whom Jefferson would have nominated to the US Supreme Court, wrote, “the States never could have committed an act of such egregious folly as to agree that their empire should be altogether appointed and paid by the other party. The [US] Supreme Court may be a perfectly impartial tribunal to decide between two States, but cannot be considered in that point of view when the contest lies between the United States and one of its members… . The [US] Supreme Court is but a department of the general government. A department is not competent to do that to which the whole government is inadequate… . They cannot do it unless we tread underfoot the principle which forbids a party to decide his own cause.”[v] As a branch of the Federal government, the US Supreme Court justices have at the very least a perspective from the “whole”–meaning the US as a whole–which is the vantage-point of the US Government. This is a background basis of similarity; the nominating President and the confirming Senators are likely to ask questions of a nominee that would show the nominee’s attitude or opinion concerning the power of the US Government (i.e., the power of the President and Senators!). The conflict of interest is clear, yet no one points to it. This is very odd indeed–tantamount to a societal blindspot.

Not unexpectedly, the US Supreme Court has consistently and overwhelmingly decided federalism cases in favor of the US Government. Even the Morrison and Lopez cases on the reach of the interstate commerce clause in the 1990s allow for indirect economic effects from such commerce to justify the jurisdiction of the US Government over those of the States. An indirect effect is just the sort of loophole that the US Government has been using to expand its power. So even the Rhenquist court was pro-US Government vis a vis the States. Joseph Desha, governor of Kentucky in 1825, wrote, “most of the encroachments made by the general government flow through the [US] Supreme Court itself, the very tribunal which claims to be the final arbiter of all such disputes. What chance for justice have the States when the usurpers of their rights are made their judges? Just as much as individuals when judged by their oppressors.”[vi] What amazes me is not so much the historical trend; rather, I’m bewildered by how such an obvious conflict of interest could be allowed to fly for so long under the radar screen of American public consciousness. This really should tell us something about ourselves, and we ought not to be flattered by what we see.


Click to add a question or comment on the ethics of the Supreme Court on federalism cases.

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[i] Woods, Jr., Thomas E. Nullification: How to Resist Federal Tyranny in the 21st Century (Washington, DC: Regnery, 2010), 4.

[ii]Thomas Jefferson to William B. Giles, December 26, 1825, in The Writings of Thomas Jefferson, vol. 10, ed. Paul L. Ford (New York: G. P. Putnam’s Sons, 1899), 355.

[iii] Woods, Jr., Thomas E. Nullification: How to Resist Federal Tyranny in the 21st Century (Washington, DC: Regnery, 2010), 5.

[iv] Woods, Jr., Thomas E. Nullification: How to Resist Federal Tyranny in the 21st Century (Washington, DC: Regnery, 2010), 5.

[v] James J. Kilpatrick, The Sovereign States: Notes of a Citizen of Virginia (Chicago: Henry Regnery, 1957), 156.

[vi] State Documents on Federal Relations: The States and the United States, ed. Herman V. Ames (New York: Longman’s, Green, 1911), 113.

The First Amendment protects free speech even if it is as hurtful as signs at a Marine funeral proclaiming "Thank God for Dead Soldiers," the U.S. Supreme Court ruled on March 2, 2011. The Westboro Baptist Church celebrated the death of Lance Cpl. Matthew Snyder in Iraq with signs such as "God Hates You," along with antigay messages at his funeral in Maryland in 2006.

The late Marine's father sought damages for emotional distress. An appellate court had reversed the $5 million award granted by a district court, and the U.S. Supreme Court concurred with the appellate court's decision.  The Wall Street Journal notes that "Chief Justice Roberts nodded to the wrenching set of facts in the case, writing that 'the applicable legal term— 'emotional distress'—fails to capture fully the anguish Westboro's choice added to Mr. Snyder's already incalculable grief.'"  Crucially, however, the justices of the majority opinion would not fall to the temptation of acting on the emotion that naturally follows hearing of such harm.

Interestingly, on the same day as the American high court's decision, the designer John Galliano was being fired by Dior's CEO and investigated by the French police (for inciting racial hatred with anti-semitic statementsm, which is illegal in at least the French and German states of the EU) for having made anti-semitic insults to a couple with whom he was arguing late at night in a trendy bar (cafe) in Paris. There, the emotions got the best of both the designer and those who reacted to the video posted of his comments (albeit showing only a part of the argument). Perhaps a grieving father at his son's funeral reading signs that thank God for dead American soldiers can be likened to a Jewish couple at a bar hearing that they are lucky their grandparents or parents were not exterminated by the Nazis. It is difficult for the rest of us to know how either feels, or how to compare the pain.


In any case, that any human being would want to hurt another so much is truly a sad commentary on our species that otherwise vaunts itself as being in the image of God. Perhaps the question is what kind of God is being envisioned here. A vengence is mine, sayth the Lord sort, which Nietzsche condemns in his writings as already discredited on account of having such a sordid divine attribute as vengence?  The deed is done, according to Nietzsche.  So too, the pain has already been inflicted on the grieving parents and the Jewish couple.  The rest is merely mopping up. 

I contend that the impulsive reaction in Europe to the fashion designer's drunken anti-semetic slurs is inferior to the majority opinion of the American court in the Westboro case because the tolerance of reason is more in keeping with a free society than is vengence or retribution against a disliked opinion. Chief Justice Roberts emphasized that speech on public issues (of which gays in the military is one) "cannot be restricted simply because it is upsetting or arouses contempt," USA Today reports. Roberts pointed out that the jury at the district court level of the case had been told that Westboro could be held liable for the intentional infliction of emotional distresss if the picketing was "outrageous." The chief justice argues that that test is "highly malleable," which is to say, it can change according to what a given person happens to think is outrageous. An old man might think noice in an apartment hallway at midnight is outrageous while a few college students down the hall might simply assume that the party has begun. In such a case, outrageous may have a physiological determinant and thus be innately different depending on the person. Quoting the 1988 case of Histler Magazine v. Fallwell, Roberts said that liability cannot be imposed on "the basis of jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression." Rather, reason must trump passion in such matters. Regarding the Synder case, Roberts said that the small Topeka-based church's messages "may fall short of refined social or political commentary," but discussed "matters of public import," such as the nation's morality and gays in the military and thus are protected by the first amendment to the U.S. Constitution, which guarantees free speech.  A free society is only really free to the extent that we protect even the opinions of those we loath. Otherwise, society reduces to a primitive matter of excluding those we don't like. Such banal convenience is too decadent for a vibrant republic and society. Reason tells us this. The question is whether we have sufficient impulse-control to proffer the degree of tolerance that is requisite. So actually, the matter pivots on us--Americans and European generally--rather than on Westboro and Galliano. They can make us stronger in spite of themselves if we permit ourselves to rise to the occasion rather than satisfy our immediate gratification.  In the end, it is up to us, not them, what kind of societies we have.

In terms of federalism, the chief justice noted that states can regulate the time and place of the protests, and the church was already contesting some as too restrictive. As of the date of the court's decision, forty six states had enacted laws to minimize picketing near cemetaries during funerals. In terms of federalism, it might be that the states' respective Supreme Courts might have been the proper venue in interpreting the U.S. Constitution in such cases. Generally speaking, if there can be fifty different sets of regulations on protests, there can be fifty different decisions interpreting free speech. It would not be like fifty different foreign policies. As it is, even with fifty different regulations, the final decider is centralized in the U.S. Supreme Court.

Sources:
http://online.wsj.com/article/SB10001424052748703559604576176323629295598.html?KEYWORDS=first+amendment+protects
http://www.guardian.co.uk/lifeandstyle/2011/mar/04/john-galliano-dior-brand
Joan Biskupic and Kevin Johnson, "Westboro free-speech ruling has its limits," USA Today, March 3, 2011, p. 2A.

On the reaction to John Galliano in Europe, see the essay in this blog at: http://thewordenreport.blogspot.com/2011/03/on-march-1-2011-sidney-toledano-ceo-of.html

The mandate to buy health-insurance may be an unconstitutional encroachment of the U.S. Government onto the liberty of its citizens. Furthermore, the rigid federal rules in the health-insurance reform law of 2010 may represent yet another way by which the state governments have been rendered servile in begging Washington for breathing room--and in a domain that may be rightly theirs, constitutionally (i.e., extrinsic to the enumerated powers assigned to the U.S. Government). The bigger story in this jurdical piece on health care is perhaps whether American federalism itself was finally being extirpated and expunged in favor of consolidation. Yet even if Americans were becoming aware of what had been a tendency for over a century, it is far from certain that they would want to do anything about it.

Ken Cuccinelli, as the Attorney General of Virginia, brought a suit challenging the US Government’s penalty for people not having health insurance (starting in 2014).  Henry Hudson, a US district court judge found that Virginia’s suit had merit and so should not be dismissed because no court has ever ruled on whether it violates the US Constitution for the US Government to require American citizens to purchase a product. “While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate—and tax—a citizen’s decision not to participate in interstate commerce.”  By mentioning interstate commerce, the judge was signally that federalism is the real issue (rather than simply limited government in the US). ”This lawsuit is not about health care, it’s about our freedom and about standing up and calling on the federal government to follow the ultimate law of the land — the Constitution,” Ken Cuccinelli said. “The government cannot draft an unwilling citizen into commerce just so it can regulate him under the Commerce Clause.” This clause has been one of the principal ways in which the US Government has expanded its powers onto hitherto state powers. In an interview on August 2, 2010 on Fox, Ken Cuccinelli said after the ruling that if the US Government can stretch regulating interstate commerce to include inactivity (i.e., someone not engaged in commerce), there is no limit to the power of the US Government—meaning its enumerated powers are effectively nugatory as a constraint.  He said that if the US Government can get away with using “regulating interstate commerce” even against people not engaged in such commerce (directly or indirectly), federalism in the US is dead.

I found the announcement of the death of American federalism to be stunning, even though I am aware that the balance of power has been shifting to the US Government from those of the several states since at least 1860. Given this trend, I wonder if federalism isn’t rendered null and void already—from the sheer power already amassed by the US Government and the resulting appendix/implementation role of the state governments.  Perhaps if the US Government wins its cases against the States that are suing on the health-insurance mandate, the American people will finally realize that the horse has left the barn.  In addition to providing a governmental check on the US Government, federalism has the advantage of being able to accommodate the diversity that is inevitable in a union of states the size of countries.  The EU, for example, consists of states the size of the American states. It is natural for such a union to be diverse.  A consolidated US should be a baleful sign for the EU as it struggles for “ever closer union,” lest one size is put on all there too.  In general terms, pressures from the consolidation of an empire-scale union tend to build from the inherent hetergeneity. Such pressures can be relieved by dissolution, as in the case of the USSR, or by revolution. It could even be said that the fall of the Roman Empire could be explained by its stymied condition due to its consolidation. One size does not fit all at the empire-level, and the EU’s 27 states and the US’s 50 states constitute that level. Were the US President more oriented to the long-term viability of the American system of public governance, he would have maintained that health-care policy is in the sovereign domain of the states and used the bully pulpit to influence as many of them as he could. That way, there would be a bricollage of heath-care systems to chose from.  Before the US Government passed health-care reform, an American could get universal coverage by living in Massachusetts or a private-sector system by living in Texas.  To conflate these two societies into a muddled compromise does both a disservice. To work, federalism requires a degree of toleration whereby people in Texas are free to have a different system than the one I prefer. Ultimately, it is our lack of tolerance (which is really selfishness) that has killed our federalism. I hope the Europeans are of better character—and more aware of what is happening around them, before it is too late.

The irony here is that I am actually for universal health-care! To the extent that the private sector does not reach universal coverage, I believe that the government is obligated to stand in toguarantee the human right to medical care being fulfilled.  Just as the Coast Guard does not make its rescues contingent on a boater's character or decision to go out during a hurricane warning, seeing that each person in a country legally has a sustenance level of housing, food and medicare care irrespective of effort or character follows from the value that is inherent in any human being, unconditionally. The human right to survival is based on the pain involved in being without shelter, food or medical care when it is needed. Humans are self-aware sentient beings capable of knowing they are in pain. Existential pain, such as in the fear that one might die without medical attention, is intolerable for a human being. If a society of humans can relieve this anxiety, it should--based on the human right not to suffer such pain. This human right is akin to that which precludes torture.  Such treatment is simply beyond the pale of what a human being ought to suffer.

Given the sordid practices of American health insurance companies (such as pre-existing condition and otherwise ending coverage when people get sick—as if buying insurance were only for the good times), I do not believe that the companies should play a central role in the American health-care system. They are tailor-made for the wealthy, who may want (and can afford) health-care beyond that which every citizen should have a right to by virtue of being a human being in a civil society (i.e., social contract). To conflate the extra (i.e., unnecessary) aspects of health-care with those that are germaine to living is perhaps the category mistake at the core of relying on discreet private companies that include and exclude.

In the American context, the particular republics, or states generically-speaking, that constitute the union are the relevant polities. Both constitutionally and in terms of federalism theoretically, the diversity inherent in the empire-scale union can and should find expression at the state level.  According to The Wall Street Journal, President Obama announced at the end of February, 2011, that he "backed a bill in Congress to let states design their own ways to expand insurance coverage sooner under the health-care overhaul, in a nod to governors' complaints that federal rules [were at the time] too rigid." Specifically, the bill would move up to 2014 a part of the 2010 health insurance reform law that would otherwise take effect in 2017. That part allows states to develop alternative health insurance systems of comparable coverage that insure as many people as under the federal law. The governor of Vermont, Peter Shumlin (D) said that the change would make it easier for his state to develop a single-payer plan, under which the state would be the central funder of healthcare. This plan would eliminate the inefficiencies involved in having several private health insurance companies, each of which would be inherently oriented to excluding people deemed "inconvenient" (meaning costly). A feeding machine cannot help to feed; its very nature so determines it to feed. So too, for-profit companies are inexorably profit-seeking.

In terms of federalism, the bill proposed in early 2011 represents a move in the direction whereby federalism can accommodate the diversity inherent in an empire-level political union. However, that the governors were put in the position of having to complain about strictures from the US Government regarding a domain that is properly theirs (assuming providing or mandating health insurance is not one of the enumerated powers) and beg for permission to accommodate their particular circumstances is an indication that American federalism is actually a top-down conditionally (from the top) partially-decentralized consolidated system.  As an alternative, the states could have been free to develop their own systems, with the U.S. Government (ideally with the Governor's Association as the legislative chamber in Congress representing the states) establishing a floor or minimum standard. Of course, it could be argued that if health care is a human right, then universal health-care irrespective of means is that floor. Even so, as in the EU, the member states of the US could be charged with implimenting universal health-care in which ever ways they see fit. This comes close to the bill proposed in early 2011, but the American health-insurance law does far more than set a general directive or standard for the states to implement as they see fit. If the floor is less than universal coverage, then the flexibility could more fully accommodate the diversity that is inherent in the United States.

In spite of my bias for my ideological position on healthcare as a human right, I recognize that the majority of the citizens of Oklahoma might disagree with me. That Oklahoma is a polity (and sovereign in its domains) means that it can and should play a role in determining what constitutes human rights. Oklahomians should have the sort of system that matches the ideology expressed by their majority (or super-majority). To say otherwise would be to violate their political right to self-determination. Moreover, it would ignore the American republics that constitute the United States and treat that political union as akin to France or Germany, which are states in another union, the E.U. Indeed, those two states a bit smaller than Texas and Montana, respectively.

As the US is an empire-scale union made up of country-scale (and semi-sovereign) polities, we cannot afford such a mistake. I have to understand what the United States are even as I pontificate on my health-care ideology.  Sadly, this step is rarely evinced by my fellow Americans.  As Sandra O’Conner, retired justice of the US Supreme Court, once said: “Congress is acting like a state legislature.”  I asked her: why don’t you restrain them?  She replied, “It takes five of us.”  That is, it takes five justices to agree to “just say no” to yet another encroachment by the US Government.  Were I to press the justice, I would have pointed out that the US Supreme Court is a branch of that government, and thus that court has an inherent conflict of interest in ruling on conflicts between that government and those of the states. Separation of powers within the US Government (between the branches) notwithstanding, there is still a US Government interest that its three branches share.  Not surprisingly, the overwhelming number of US Supreme Court decisions on federalism have been for the US Government’s position.  In other words, our federal system has a fatal flaw in its very design. I contend that this flaw has made possible, and perhaps even facilitated, the death of American federalism.

Sources:
http://www.foxnews.com/politics/2010/08/02/judge-permits-virginia-health-care-law-challenge-continue/?test=latestnews

http://video.foxnews.com/v/4300198/virginia-suit-against-health-care-law-to-proceed

Janet Adamy, "Obama Offers Skeptical Governors Bigger Role Under the Health Law," The Wall Street Journal, March 1, 2011, p. A4.

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).