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What's going on in North Dakota?

North Dakota has passed an extremely strong abortion law, a law which quite obviously is incompatible with Roe v. Wade. The law bans abortion when a fetal heartbeat can be detected, though without specifying what detection method would be used. Good for North Dakota. Of course it will immediately go to a court challenge. My prediction is that a lower federal court will strike the law down in a Miami minute and that SCOTUS won't bother to hear it.

Governor Dalrymple has, shall we say, finessed the question of the law's relationship to Roe v. Wade. What he says is that the law is an attempt to "discover the boundaries" of Roe and that the court has never addressed the specific issue of fetal heartbeat. There is some excuse for the governor's wording if we consider the legal and logical chaos of the totality of the High Court's abortion rulings. After all, the trimester set-up in Roe didn't survive Webster, and Casey was a legal and logical mess from every perspective. But if we put the matter more straightforwardly, the North Dakota law is blatantly incompatible with the jurisprudence of Roe, and all the better for it.

So, a few practical questions:

--Will North Dakota arrest or prosecute any abortionists under this law, or will it be enjoined too quickly for this?

--Will abortionists be spooked by this law and stop operating (specifically, at the one abortion clinic in Fargo)? Will babies' lives be saved by it?

Lest there be any misunderstanding, I don't ask these questions in a carping or sarcastic vein. I think we need more such defiant acts by the states against Roe, and I applaud the unity of the North Dakota legislature and governor in passing the law. It will be even better if an abortionist spends even a day in jail as a result, with the cooperation of the state prosecutor and courts. Doctors are risk-averse people, and we can hope that the Fargo death clinic will find it ever-harder to find ideologue "doctors" willing to murder babies there.

The ND legislature also passed a law requiring doctors to have physician privileges at a hospital, which I suppose could close down the clinic for independent reasons, with the cooperation of the hospitals in refusing to give the abortionists physician privileges.

What do readers think? What point is there in state laws that are clearly incompatible with Roe? I don't think that North Dakota is willing to go quite as far as I do and defy the federal government to the hilt, prosecuting its own laws as though Roe didn't exist and defying federal court orders. This law is, rather, a shot across the bows. What good do readers believe it will do?

Comments (142)

How about this: carry out the punishment no matter what the federal courts declare. Simply ignore their rulings. Force the issue. Make armed federal agents have to actually hit the prison facility in North Dakota if they want a federal Habeus Corpus honored.

Good for North Dakota. Mike T is reading my mind. Make the feds show up in person and have a critical mass of local sheriffs on the side of governor.

Look, I'm inclined to agree with both of you, but I don't think that's what ND has in mind. Soooo, the question is, if they aren't going to go quite that far, what good can they still do with this law? Can we read their minds as to what they actually have in mind?

Make the feds show up in person and have a critical mass of local sheriffs on the side of governor.

Alternatively, they can riff on SCOTUS precedent and pass a law authorizing the same local sheriffs to simply deny abortion clinics law enforcement protection. The SCOTUS has explicitly denied an individual right to law enforcement protection. No ifs, ands or buts. It categorically does not exist.

Can we read their minds as to what they actually have in mind?

My guess is someone is polishing up his conservative bona fides for a Senate race.

The law was probably meant to be a court challenge. The federal courts will strike it down on some grounds and that will be that. Some babies may or may not be saved in the interim.

Strong conservatives such as these have two powerful religious motivations: the rights of the unborn and the continuation of conservative American politics. I don't think they yet understand that these are in tension. As Lawrence Auster has said, if conservatives acknowledged that the historic America has been completely taken over by the left, they'd have to stop being conservatives.

(Mike T and Andrew E, I actually advocated for something quite similar to that in a speech I gave in a contest last year).

I tend to take the cynical view, though, that this will come to absolutely nothing and is a purely political move to make themselves look good.

Why are you people so obsessed about abortion? At this point in time, abortion is eugenic. High IQ whites are very disproportionally underrepresented in abortions. Most abortions are (low IQ) blacks and mestizos. Ease up!

See:

Why are you people so obsessed about abortion? At this point in time, abortion is eugenic. High IQ whites are very disproportionally underrepresented in abortions. Most abortions are (low IQ) blacks and mestizos. Ease up!

See:


Maybe it's a mistake to respond, but morbid curiosity has gotten the better of me...and I have absolutely no idea what you're getting at here.

MarcAnthony, you do not want to know. You seriously do not want to know. But since you asked: This person is saying that it's not too bad to murder unborn babies so long as one disproportionately murders black unborn babies. This, he contends, has a eugenic effect on mankind; therefore, we shouldn't be opposed to abortion. He says this sort of disgusting stuff while daring to sign himself a Christian.

Darwinian (fake) "Christian," go away. Your vile ravings are not welcome here and will be deleted hereafter. The only reason I didn't delete the previous one is because someone asked a question about it, but I won't be continuing that.

Maybe the sponsors of the bill don't have too many specific ends in mind, after all, nobody knows how things will play out; the future is a blank page. it's a good law, so enacting it was a good thing to do, and it doesn't seem imprudent to me (setting up armed conflicts between sherriffs "loyal to the governor" and federal agents on the other hand doesn't seem prudent at all but as Lydia said that's probably not what the governor has in mind).

What good would a dockworker strike in communist Poland do? The government will put a stop to it and arrest the organizers and that will be that...

The thing is, even though the law will undoubtedly be struck down by the courts, it may be the beginning of something big, something historic. Ye cannot rule that out.

In other words, it's a positive and hopeful action. There doesn't have to be anything else behind it.

In other words, it's a positive and hopeful action. There doesn't have to be anything else behind it.

This is true. But I know people involved in politics. I know personally several of the past mayors, and the current mayor, of my town. My experience is that when passing controversial laws something is in it for them, except in very rare cases.

setting up armed conflicts between sherriffs "loyal to the governor" and federal agents on the other hand doesn't seem prudent at all but as Lydia said that's probably not what the governor has in mind

It would be more accurate to say setting the potential for one. Obama has already been forced by spending issues and public disapproval of marijuana prohibition in two states to back off with enforcement of federal law in those two states (if his public comments that they're "not priorities" right now are any indication). Several states are moving in this direction on gun control, but more boldly by saying that they are actually zones in which federal law simply doesn't apply on gun control. (Not very radical since the supremacy clause, no matter what the SCOTUS states, in light of the 10th amendment only applies to matters of overlap which are few and far between).

My guess is that Obama would actually go after the elected state government instead. You'd see Marshals or the FBI hit them in a massive SWAT raid at their homes in the middle of the night since SWAT is the preferred method of forcing compliance with the law these days. A state government that wanted to go this route would need to have the loyalty of its state police agency and an understanding that they would need to be willing to fire on federal agents attempting to arrest the state legislature and/or executive officials.

Mike, I suspect you are right but I am not sure of the mechanism. The FBI won't send in their SWAT team without a veneer of a federal law being broken. A SCOTUS decision is not a law, there is no federal law on abortion (except the partial birth abortion). If the governor gets the state attorney general to opine that no state law has been violated, you have to locate some federal law that is at issue. And the FBI would have to bring in outside agents and completely bypass the local offices (keep them completely out of the loop) so there was no prospect of the locals warning the state officials.

A federal court could drum up U.S. Marshals and send them after the prison warden and/or the governor for failure to obey court orders, but I suspect that would be pretty troublesome to do, and the Marshals don't generally operate in huge groups. If the governor calls out the state militia units, the Marshals aren't going to fire on them. In the meantime if the governor gets the ND senators to propose a bill to defund all federal enforcement agency actions in pursuit of ND state officials carrying out state laws except by extradition and the like, the publicity problems for Obama would mount.

That's best case scenario, of course. There are lots of ways things could fall apart for the ND officials. But then again, there are lots of ways things could fall apart for Obama, like one stray FBI bullet killing an innocent bystander and getting the ND police agencies in a raging battle with them.

Tony,

Remember, there is a framework for quickly deputizing other law enforcement officers as US Marshals. Obama could, in theory, reach out to a few liberal cities and turn several hundred volunteers into US Marshals. I'm not saying it would happen, but the US Marshals' deputization framework provides a basis for Obama and his allies to quickly overpower a small state like North Dakota.

Obviously the courts won't allow this, but it serves a useful purpose in demonstrating and escalating outrage over the issue and over the imperial judiciary. It sets the stage for another escalation---perhaps the use of wholesale jury nullification backstopped by pardons from the governor? What would the federal government do if someone held impromptu trials and immediate executions for some of their precious abortionists, and the governor immediately pardoned the 'court'?

...the US Marshals' deputization framework provides a basis for Obama and his allies to quickly overpower a small state like North Dakota.

Imagine how that would look, though. The federal government would be humiliated.

It sets the stage for another escalation---perhaps the use of wholesale jury nullification backstopped by pardons from the governor?

That's rather confused. The law is against abortions. If anything would be "jury nullified" and "pardoned" it would be the abortions. Which is obviously not what one wants.

No one is breaking a state law, and arguably not a federal law either, by _enforcing_ a state law against abortions.

Lydia,
I don't think you get it. The escalation would be ignoring the usual rules of the system after the system declared the law to be invalid. The 'trial' would be by a private citizen or two. The nullification would be for the homicide prosecution that would be demanded as a result. The pardon would be in case the nullification by jury didn't work.

Well, no, nobody should be advocating lynchings followed by the law turning a blind eye.

I'm sure the ND law has penalties built in for the abortionists. Obviously, the best route would be for the ND system to carry those out in a normal, orderly fashion within the ND criminal justice system.

Lydia,
The ND system won't be allowed to carry out their law by the federal government. Both of us know this. I wouldn't convict anyone as a juror for in any way impeding an abortionist from their trade, by means up to and including the lethal.

But Jehu, that's a completely different argument. I mean, that's an argument for vigilantism and jury nullification (of laws against assault or trespass or even murder) unrelated to ND's attempt to pass actual, orderly, state laws against abortion.

For the record, I'm fine with non-violent civil disobedience such as blocking clinic entrances if people are willing and able to pay the price (which with FACE means federal prison), but I am not fine with violent vigilantism. In any event, I'm going to rule a debate about vigilantism OT here for the reason I just gave.

Mike, I think the prospect of the Obama administration deputizing a large number of local sheriffs and deputies to arrest their own state's officials is pretty remote. And deputizing police in a different state to come into ND to do so is a whole nother ball of wax. It's not that they CAN'T find enough marshals to do the job, it's that (I think) the marshals don't operate as a large body like the FBI SWAT teams and such, still less as taking on another large armed force of law enforcement officers.

So we would still have to locate a federal law being violated to see this play out with Feds sending a massive force in to mop up. I would be interested to see it play out where the FBI tried this, because I think that the US attorney general would find it very difficult indeed to get the FBI men on the ground to shoot at state militia obeying apparently legal orders of a state governor.

As you might expect, I take exception to the idea that North Dakota should attempt to enforce such a law. That would amount to nullification by a single state, which is indeed a step toward vigilantism. On the other hand, I wonder whether those who are screaming about the ND law are also screaming about the defiance of federal supremacy by states that have allowed medical (and non-medical) marijuana, granting benefits such as in-state tuition to illegal aliens, etc. because all I hear are crickets.

"Nullification" of what, Perseus? Of Roe v. Wade? Roe v. Wade is not a law passed by a legislature--any legislature. It is a court ruling. Same for Doe v. Bolton, Casey, Webster, and on and on.

The thing is, to even talk about nullification in this context is tacitly to admit that the judges in the SCOTUS are a super-legislature. Even a kind of meta-legislature that gets to tell the states, in microscopic detail, exactly what abortion laws they may and may not pass. If one objects to such "nullification," moreover, one is saying that we--all of us, including duly elected state agents passing and enforcing state laws--are obligated to _submit_ to such patently judge-made meta-legislation at the federal level (trimester system, oh, oops, not trimester system, health exceptions, etc., etc.) in all its micromanaging detail, even though such a micromanaging function is in no way authorized by our country's Constitution.

As, for the most part, a person sympathetic to the rule of law, I have to ask: How did such an obligation come upon us? Because it certainly didn't happen *by law*. It seems to have come upon us by osmosis. Or maybe by Marbury. Could one ruling really confer such enormous power upon the SCOTUS to be a super-meta-legislature over all state legislation? And confer an obligation on the whole country to accept that power? I rather doubt that any of these are convincing sources for that sort of power in our legal system.

Certainly Marbury was part of it. I think that the whole idea of judicial oversight of law has been taken too far, but I don't know (other than Marbury) what other factors have led to what we have now.

Perseus, I think that conceptually the system of checks and balances is consistent with other arms of government could tell the courts (a la Andy J) "OK, you've said your piece, now let's see you enforce it." The fact that the courts are not the police and cannot tell the police to arrest someone, and they are not the legislature and cannot say "X is now against the law by our fiat" is supposed to be important. For example, a president has the constitutional right to refuse to enforce a law that HE is sure is unconstitutional, even if the courts disagree: the Constitution doesn't place the president's relationship to the Constitution subservient to the Congress's. Likewise, if a president is certain that the court has erred in declaring new "case law" that violates the Constitution, he could refuse to honor that case law. All three arms of the federal government are co-equal in that sense, none of them were erected "over" the others.

As to state nullification: No, they are not nullifying a federal law. They are telling the federal court "You've overstepped the bounds of your authority under the Constitution and the 10th amendment." Especially with respect to the 10th, the states are PRECISELY the correct body to check the judicial overreach here.

There is admittedly some obscurity in the way that check is envisioned (under the Constitution) to be carried into practice. But to simply ASSUME that the states carry it into practice solely by amending the Constitution is to nullify the 10th amendment itself: it would mean in effect that only those specific powers eventually described in later amendments as not belonging to the federal government are forbidden to it, because the only way to actually ESTABLISH that such powers are forbidden is to find them restricted in an amendment the states force through. That's topsy turvy. So, theoretically, then, the inherent "check" that the 10th amendment implies rests in the states somehow not giving way to a power grab by one of the federal branches, not bending the knee in obedience.

Like Lydia, I am a pretty strong "rule of law" type. But there is a case to be made that according to the original sense of the law of separation of powers and shared sovereignty, the ND may be on the right track in pursuing something like refusing to submit to the SC. Doing so should NOT be referred to as vigilantism, precisely because the states hold all those powers not ceded to the federal government, and the Roe (et sequia) determination that the states may not declare "life begins at conception" was one of them not ceded.

If you're talking about the U.S. Supreme Court asserting the authority to strike down state laws, the precedent was set in Fletcher v. Peck (and subsequent cases "micromanage" what states are allowed to do in that area). The scope of the federal judiciary's power over the states in matters like this one will depend on one's interpretation of the 14th Amendment. So is your beef with the scope of federal judiciary's power over the states that has been asserted or is your beef with the federal judiciary's power over the states itself? And why do you think it's a proper constitutional remedy for a state simply to ignore a ruling by the U.S. Supreme Court (even Madison thought that the states collectively should be the ones to "interpose" because they were collectively, not individually, parties to the ratification of the Constitution)?

So is your beef with the scope of federal judiciary's power over the states that has been asserted or is your beef with the federal judiciary's power over the states itself?

As asserted. I agree with the Constitutional provision of US courts over states with respect to all properly federal powers.

And why do you think it's a proper constitutional remedy for a state simply to ignore a ruling by the U.S. Supreme Court (even Madison thought that the states collectively should be the ones to "interpose" because they were collectively, not individually, parties to the ratification of the Constitution)?

I don't think it necessarily "proper" for one state to do so precisely in virtue of being one state. And as I said, the Constitution is vague about this. I assert that the 10th Amendment implies the states' capacity to assert states' reserved rights WITHOUT having to do so in concert via a Constitutional amendment. What mechanism to you think would satisfy a 10th amendment states' assertion of rights short of an amendment? Because the Constitution is silent, I don't think any specific mechanism is going to win the field as "THE" only right mechanism, so I am willing to see a number of proposals. If you think there is one out there that rests with states (plural) acting together but not relying on amendment, what would it be? (Though even a proper assertion of state authority has to be asserted somewhere specific FIRST, in one state.)

Tony: My response was directed at Lydia (you posted while I was composing), but, of course, I don't object to others jumping in.

So your beef is with the scope of the federal judiciary's power over the states and you concede that a single state ignoring a ruling by the federal judiciary isn't exactly proper, which is not too far from my position. I don't know off hand what more states can do because the states do not have the same sort of formal checks that the 3 federal branches have against each other. The unwillingness of Congress and president to reign in the judiciary is a critical problem, and it would seem that any movement strong enough to get a lot of states on board is apt to produce some action by federal elected officials as well.

I don't know off hand what more states can do because the states do not have the same sort of formal checks that the 3 federal branches have against each other.

Well, there was one formal check intended to help the states rein in the federal power, but I guess it never worked even from the beginning: the senate was originally chosen by the state legislators. Theoretically, this was supposed to mean that the senate would better look out for the interests that the states as corporate entities had, including their reserved powers. In practice the mechanism was apparently useless (at least perceived so), and it was given away in the 17th amendment.

Maybe that's the sole check on federal aggrandizement of power the Constitution envisioned, but seems to me that the Founders usually worked in multiple layers. In any case, it seems to me that regardless of how the Founders thought of the arrangement of powers and checks to begin with, the corrective passage of the Bill of Rights and the 10th amendment especially implies that they were concerned with the possibility of the federal power being exercised in ways not intended, and those amendments were supposed to establish the wherewithal to fence it in. If the 10th is just an expression of theory without practical value, it was a waste of effort. I don't think they thought it was supposed to be just a theoretical concept - none of the other provisions or amendments were.

As you might expect, I take exception to the idea that North Dakota should attempt to enforce such a law. That would amount to nullification by a single state, which is indeed a step toward vigilantism.

Any reasonable person can look at the 10th amendment and concede that the Supreme Court has simply ignored both the enumerated powers and the 10th amendment. The majority of what the federal government does to the states is worse than vigilantism, it is usurpation by an imperial government.

If you wish to appeal to the US Constitution to restrain North Dakota, that's perfectly fine. However, to be consistent you would need to gut the federal legal code and abolish the majority of the federal departments to be consistent. If North Dakota cannot nullify a ruling that is so obviously unconstitutional that even most intelligent liberals concede it was very bad case law even if they like its outcome, then neither can the federal government do virtually any regulation within a state's borders.

Ironically, despite your outrage over marijuana legalization by the states, it is perfectly constitutional. The Congress stated in its prohibition statute that it was the sense of Congress that it could outlaw completely intrastate marijuana production, sales and consumption because cultivated marijuana is often sold across state boundaries. Simply put, the mere possibility of interstate commerce was enough to "give" the DEA jurisdiction over marijuana grown in someone's back yard and smoked in their basement despite the fact that this is transparently unconstitutional usurpation of the state's near plenary powers over economic regulation within its borders.

Perseus, in the case of a ruling as obviously insane as Roe, I consider it completely appropriate for a single state to ignore it. It is not a law and has no actual binding authority.

As for checks and balances, the state itself has a full three branches of government--legislative, judicial, and executive. It is a fully functioning governmental entity, fully capable of governing itself in matters such as abortion. If the three branches of its government work together to outlaw, arrest, try, sentence, and jail abortionists, this is about as far as possible from vigilantism but is, rather, the perfectly normal and orderly working of law. That SCOTUS made up something out of the back of its head that, legally speaking, might as well have been written while on hallucinogenic drugs, stating that such laws are unconstitutional, is irrelevant.

You know, speaking as somebody currently taking a Civil War class, this whole conversation is reminding me strikingly of the build-up to the war, and that's rather frightening. Riots in Massachusetts come to mind (where they spirited away former slaves to Canada).

The thing is, I started the class with strong Northern sympathies. So did my ultra-liberal Professor. I still have strong Northern sympathies, but my thoughts have changed. I'm no longer quite so sure of how unconstitutional it was *in theory* for the South to secede.

I still find that I can't support the South, because I think everything they did was motivated, either directly or indirectly, by slavery. And the way they handled things on the path to war was questionable. But my thoughts on the matter of secession *in theory* might be changing.

I still don't think I support the idea of actually leaving the country, but I do think that not obeying unjust laws, in principle, using Jeffersonian principles, makes more sense than I originally thought. Non-violent non-compliance may be the answer.

Well, this little visit to right-wing crazytown has been entertaining. I mean, mad fantasies from militia nutjobs about starting another Civil War are what I came here to see, but you really know it's pure crazy when the state which is supposed to rebel is...North Dakota, with its 0.23% of the population. At least the South had a good 30% of the population. Well, 20% if you exclude the slaves.

MarcAnthony, as your Massachusetts example shows, civil disobedience or refusal to recognize some particular legal authority can cut in any direction. That is to say, people who ran the Underground Railroad were engaging in civil disobedience (by defying the Fugitive Slave Act) as much as or even more than those who voted to secede from the Union. These various concepts, including the concept of a state enforcing its own law while ignoring a Supreme Court ruling, are per se topic neutral.

If SCOTUS ruled that Mickey Mouse is President, everyone wouldn't be obligated to try to make some sense out of that declaration and follow it in letter and spirit.

The ND law is perfectly sensible and does lie within the state's legal scope, and I would like to see them enforce it.

What I think is probably the best we can actually hope is that there will be fewer abortionists willing to practice there.

in the case of a ruling as obviously insane as Roe, I consider it completely appropriate for a single state to ignore it.

That is a recipe for disunion and anarchy, and no, it is not really any different from vigilantism because if any one state that is party to a collective agreement can do whatever it wills, then following the same logic, any one individual person can do likewise. So why don't you at least be candid like Garrison and admit that you'd sooner dissolve the Union rather than continue an agreement with Hell.

Ironically, despite your outrage over marijuana legalization by the states, it is perfectly constitutional.

Straw man. My point was about people's inconsistency in defending federal supremacy, not whether I happen to agree with any particular decision of the Court (I happen to disagree with Roe and Raich).

Any reasonable person can look at the 10th amendment and concede that the Supreme Court has simply ignored both the enumerated powers and the 10th amendment. The majority of what the federal government does to the states is worse than vigilantism, it is usurpation by an imperial government.

Then the proper remedy is either constitutional amendment or revolution, not nullification by a single state.

if any one state that is party to a collective agreement can do whatever it wills, then following the same logic, any one individual person can do likewise.

Perseus, I really don't think that follows. What we're talking about here is whether law exists or not. In the case of a private individual who, say, hunts down someone he considers a murderer, because he does not think the law is going to punish the person justly, this person is quite evidently acting outside of law. He is being, as we say, a "law unto himself."

When a state uses the normal procedure of its judicial, legislative, and executive systems to try and punish someone for breaking its duly passed laws, that is quintessentially the operation of law.

In any event, I have not stated that the state can "do whatever it wills." I have stated that the state is not obligated to tailor its laws to obviously insane and usurpatious federal court rulings. Deciding when that line has been crossed is, obviously, a judgement call.

But it would also be a judgement call in the opposite direction. If Congress were to pass a blatantly unconstitutional law, such as a law directing that everyone who attends Catholic mass should be beheaded, and if some crazy Supreme Court were to make up insane, specious grounds on which to say that that law is constitutional, it would be a judgement call by the executive branch to speak out and say, "I swore when I was elected to uphold the Constitution. Our Supreme Court is telling a lie when it says that this law is constitutional. It is blatantly unconstitutional and therefore unlawful. I therefore absolutely refuse to enforce this federal law, and I will instruct all federal prosecutors to refuse to enforce it. We are constitutional officers and bound by our oath to the Constitution, not to the Supreme Court's obviously false statements about the Constitution."

It is always a judgement call as to when some statement about the Constitution, whoever happens to have made it, including a man in a black robe, is so obviously false that various legal officers, bound to the actual Constitution by their positions (Presidents, governors, prosecutors, etc.), are not bound to regard it as tantamount to the actual Constitution. But I, for one, do not regard it as an abrogation of the very existence of the Union or of a state's ontologically real obligations to the United States merely to assert that there can be such situations and that the blatantly usurpatious Roe ruling created one of them.

I also consider the term "nullification" as applied to SCOTUS rulings to be somewhat tendentious. Nullification is what Roe v. Wade did! It attempted to nullify all the state laws it bore upon. For a state to enforce its own laws in the face of Roe is not for the state to nullify even a federal _law_. It is, rather, to refuse to acknowledge the constitutional authority of the Roe decision, based on its self-evidently constitutionally false content.

When a state uses the normal procedure of its judicial, legislative, and executive systems to try and punish someone for breaking its duly passed laws, that is quintessentially the operation of law.

Especially (if I may add) because state powers do not derive from the federal authority, so when a state legislates in an area truly and properly within its own sphere, it is TRUE law, and the federal attempt to marginalize it is the improper or invalid law.

Then the proper remedy is either constitutional amendment or revolution, not nullification by a single state.

But that nullifies the 10th amendment altogether, makes it empty verbiage. No, the constitutional order is supposed to be more nuanced than that. As with the primary text of the Constitution, amendments are supposed to be about truly basic, truly critical matters, in keeping with expressing the fundamental "law of the land", not for each picayune matter that Congress or the SC just happened to get wrong. And (again) if the states' sole ordinary recourse for the feds grabbing powers that aren't really federal is an amendment, then that implies 2 (bad) things: (1) that the states really wrote an infinitely large check to the federal power when they generated the federal power out of their own powers, they set up a sovereignty that hollows their own to nothing (instead of the shared sovereignty concept), because every assertion of federal power become a valid assertion by that very fact until the states "take back" that power by an amendment; and (2) the federal authority isn't really federal at all but national, effectually eradicating states as independent entities in their own right whose existence is logically prior to the larger. Both of these conclusions are utterly contrary to the understanding of the constitutional order put forth in The Federalist Papers.

I am not generally recommending that a single state take on all 49 others in terms of disagreeing with the whole rest of the country about a single issue and just plain not complying with a SC decision. But with abortion numerous states have attempted numerous avenues to unravel the nonsense of the SC's decisions in an orderly, legal manner and have been rebuffed at every turn with an SC bent on regurgitating their initial fallacy ad nauseum. It isn't, in this case, just one state. In the very recent past, Indiana, Mississippi, and Missouri have attempted various things, and since Roe a pretty significant share have made attempts. So if each different state sees the failure of the other states before it, and tries something slightly different, the fact that what it is trying is different from all the others isn't in the least evidence that it is "acting alone", for cryin' out loud.

I still insist, the 10th amendment harbors within itself the implicit concept of states (acting somehow either in small groups or large, I don't know) resisting wrongful invasions of their powers by the federal branches, NOT via amendment but otherwise through less onerous and less formal means. Otherwise the amendment is a dead provision altogether.

When a state uses the normal procedure of its judicial, legislative, and executive systems to try and punish someone for breaking its duly passed laws, that is quintessentially the operation of law.

Only if the acts of that state are not subject to federal review. The federal judiciary's power over the lawmaking process in states is in effect a kind of veto, and just like if a state legislature simply ignored rather than overrode a governor's veto would prevent a bill from becoming a duly enacted law, so the same applies when the federal judiciary exercises its power over the states.

I have stated that the state is not obligated to tailor its laws to obviously insane and usurpatious federal court rulings.

How exactly do you ground such an enormous authority of an individual state to take exception to federal court rulings (I'm unaware of Marshall or others recognizing such thing)? And who gets to decide its limits--each individual state?

If Congress were to pass a blatantly unconstitutional law, such as a law directing that everyone who attends Catholic mass should be beheaded, and if some crazy Supreme Court were to make up insane, specious grounds on which to say that that law is constitutional, it would be a judgement call by the executive branch to speak out...

The distinction I'd make is that an individual state is not a co-equal branch of the U.S. government like the president and therefore does not have comparable authority to interpret the U.S. Constitution differently from the other branches of the federal government and act accordingly.

But that nullifies the 10th amendment altogether, makes it empty verbiage.

Yes, and Madison more or less designed it that way. As far as he was concerned, the language was redundant (his strongest Anti-Federalist opponents agreed and thus were very dissatisfied). And much to his chagrin, he later recognized how few constitutional checks that the states (particularly an individual state) have against the federal government.

These various concepts, including the concept of a state enforcing its own law while ignoring a Supreme Court ruling, are per se topic neutral.

That's what I'm thinking. Like I said, my sympathies still lie generally with the North in the Civil War and at least in my mind have a hard time justifying secession, but civil disobedience of the type we're discussing here seems to be more than justified with something as serious as abortion.

Yes, and Madison more or less designed it that way.

I'm sorry, but I think that turns Madison's intentions on their head. Some time ago I found and copied into the record here (I don't have time to look them up again now and want to try to herd the discussion at least a little bit) _lengthy_ comments by Madison that say that *of course* the federal powers are strictly limited. The only reason he would have said that the 10th amendment was otiose was precisely because he believed everyone already understood from the very nature of the union that the powers of the federal govt. are strictly limited. Not, I repeat, not, because the states were writing the federal government a blank check to take whatever power it wanted, to exercise a veto over any laws of the state it pleased through specious constitutional claims, and to rule with absolute power. It was just exactly the opposite. He thought the 10th amendment shouldn't need to be stated because it should be so clearly understood that the federal powers were so greatly limited. He certainly didn't design it to be empty verbiage in the sense that Tony meant that phrase. Absolutely to the contrary.

In any event, Perseus, as far as your notion that this is a mere invitation to anarchy, I suppose someone could say the same of the widely understood military principle that an individual soldier need not obey a specific immoral order. If his superior orders him to systematically shoot every woman and child in a village, he isn't obligated to obey that.

One could then say in annoyance, as you have said about my claim here, "Well, if you're going to say that every soldier can just decide for himself what order he is and isn't going to obey, what's left of the military?" But obviously, that isn't what the principle is stating. It's talking about exceptional cases.

The fact is that human society cannot operate like a computer. You can't just take inputs and give outputs. Rational, prudential decision-making is going to be required at some point. What has happened in the United States of America is that we are allowing SCOTUS to operate all-too-humanly, to ad lib, to make stuff up, to say whatever crazy nonsense comes into their heads and dub it "the meaning of the Constitution," and then everybody *else* is supposed to operate like a computer and not exercise any judgement or human powers of decision as to whether this is too crazy to be followed. The states are just meekly supposed to tailor their laws to whatever the Robed Masters have said this week. In this way we get the worst of both worlds. Perhaps it wouldn't be so bad if the SCOTUS felt itself obligated to operate a little more, shall we say, robotically--that is to say, to stick to the letter of the law cautiously and not to get so doggoned creative. But when one branch is allowed to be as wildly creative in its faux interpretations as it wants to be and all the little fellows from there on down, including all the governments of all the states, are just supposed to churn out the outputs of whatever inputs the first branch feeds them, we have a true combination of tyranny and anarchy which is not even remotely what the Founding Fathers intended nor sold to the states when inviting them to form the Union.

The distinction I'd make is that an individual state is not a co-equal branch of the U.S. government like the president and therefore does not have comparable authority to interpret the U.S. Constitution differently from the other branches of the federal government and act accordingly.

The states severally and united chose to cede certain limited powers to the federal government. With respect to THOSE powers, the states are not co-equal to the US government, not at all: the federal government reigns over them. The states also severally and by concert chose to NOT cede plenary, general, or "the rest" of the powers not specified, to the federal government. Thus, with respect to those unspecified powers and the plenary power of government in general, the states are sovereign and the federal government is not. With respect to those latter powers, then, the federal government cannot be the unrestrained and absolute final authority to decide whether an exercise of power is state or federal - to say so would be to simply do away with the state plenary authority altogether, in the end the states would have only those powers granted to them by federal "interpretation".

What we are looking at, here, is not merely WHO is the final authority (the people are, under this constitution), but HOW the people are constituted to exercise the determination of powers of government in matters where some question whether an exercise of power is a state matter or federal, (or neither because the Constitution forbids it to both). It is not immediately clear that the federal authority is, or even can be, the designed "final arbiter" of an act in pursuit of the 10th Amendment. Having it so would turn the amendment on its head in effect.

MarcAnthony, I think your intuitions are right: the North deserves our sympathies on account of the cause they were pursuing. On the other hand, the South did not have it entirely wrong either.

After watching my wife teach US history 4 or 5 years now, I am more convinced than ever that the Civil War can be described as BOTH parties being in the wrong, both the Confederacy and the Union. (Nothing impossible about that). Certainly the South should not have pursued their goals by way of maintaining slavery as a permanent institution. And there are various ways in which the Union should not have pursued its goals the way they did, (Sherman's march to the sea is just one example, but there are others).

For this discussion, though, I would point out that the South seceded over an anticipated future situation where slavery was made illegal or nearly so, they did not even WAIT to see the first laws passed to make it illegal. So at that point, there was nothing ACTUAL for the South to be in civil disobedience about. This is one of the ways I think the South erred in its chosen course. There was some possibility of their being able to defeat any such laws in Congress, and if they lost there they could have pursued a court solution, before civil disobedience would become critical.

He thought the 10th amendment shouldn't need to be stated because it should be so clearly understood that the federal powers were so greatly limited.

He did indeed think that the powers of the federal government were limited but because at that time he and other Federalists were more concerned about usurpation by the states and empowering the federal government, he didn't give much thought to giving the states more formal checks on the federal government (the 10th amendment includes none). That was precisely why the Anti-Federalists wanted substantive changes in the structure of the Constitution. So he was at a loss when he thought that the Federalist Party had gone too far in asserting federal power.

In any event, Perseus, as far as your notion that this is a mere invitation to anarchy, I suppose someone could say the same of the widely understood military principle that an individual soldier need not obey a specific immoral order.

An individual solider, like an individual state, is not the head of a co-equal branch of the federal government. He will be subject to a higher authority--a court martial--and be punished by that authority if found guilty of disobeying a lawful order. Are the officials of North Dakota prepared to submit themselves to federal authorities for judgment and possible punishment for such acts of defiance?

Perseus, I'll say quite honestly that even if we were in some sort of odd situation where the possibility of a court martial were remote or non-existent, the soldier would still have the right and duty to resist an unlawful order. It isn't the existence of some formal system for judging his decision that makes his decision right and necessary. The same for the state officials.

As a matter of fact, I'm far less sanguine than some of the others on this thread about the outcome if the state officials of North Dakota _did_ engage in full-fledged acts of defiance. I think they would lose. I have a deep-seated feeling that the federal government, especially under the present administration, would indeed call their bluff and send in federal marshals with guns. You can call that, if you will, facing "possible punishment." As in, "You could get shot, and if anybody gets shot, you will be demonized for the next two hundred years, and the penalties you will face are so dire that we haven't even figured them out yet." In fact, it would be so serious a situation that the officials of North Dakota will not, I predict, even _consider_ any actual "acts of defiance" such as locking up abortionists under the law and defying the federal govt. to get them out. They are sending the law up as a trial balloon and will tamely submit to any court orders given. Perhaps they are simply hoping to out-bluff some abortionists and scare them off.

It makes me shake my head a bit that you are so solicitously concerned about the possibility that state officials will lock up abortionists as an act of defiance and will not "submit themselves" to any formal judgement and reprisals, while in fact this is so far from being an actual concern as not to lie anywhere (I predict) within the mental horizon of Governor Dalrymple & co. Our real danger in this county lies, as it has for decades, in precisely the opposite direction--namely, that our elites will continue by undemocratic means and the power of the courts to transform the country into something utterly unrecognizable, and that the states will go along with this at every single point, dotting every i and crossing every t, in the name of the rule of law.

Just exactly, in fact, what you recommend and prefer, apparently. There, I cannot agree with you.

Certainly the South should not have pursued their goals by way of maintaining slavery as a permanent institution. And there are various ways in which the Union should not have pursued its goals the way they did, (Sherman's march to the sea is just one example, but there are others).

Exactly. I've talked to some ultra-conservative Catholics that refuse to see the South in anything but a positive light-what James McPherson calls the "Lost Cause" theory of the Civil War. They are, to put it bluntly, delusional. They go head over heels defending the South, and when you point out slavery to them they always respond with, "Well, except slavery." But it doesn't work like that.

On the flip side, I find that I can't justify the march to the sea (or the destruction of South Carolina). And the North pretty much controlled the federal government. I consider the greatest tragedy of the entire war the South's reaction to Lincoln. He was the best the South could have possibly hoped for, and the best the country could have hoped for.

Lincoln, of course, had flaws. A lot of them. But I am still convinced, having looked at the incident now in more detail, that nobody would have been able to perform his duty better. Davis, on the other hand...

Back to how this relates to ND. I'm not advocating rallying to start a new Civil War (God knows we don't want to see anything like that again). I certainly don't advocate getting the state militia to rally against the federal government.

But yes, I would LOVE to see ND defy the federal government's orders and jail abortionists. Then when the federal marshals step in, well, they back down-but they've certainly made their point.

Think of how it would look-a state votes in a law through normal democratic means that is overturned by the federal government through a bogus Supreme Court decision. The state determines the decision bogus and chooses to enforce its own laws. The government sends in federal marshals to stop a state from enforcing its *own laws* that were only overturned because of a *bogus* Supreme Court decision. If nothing else, you have a massive victory for the pro-life movement.

But, it will never happen, because no state today has the guts that Massachusetts had back in the 1860s-or, heck, the guts that South Carolina had, honestly.

It isn't the existence of some formal system for judging his decision that makes his decision right and necessary. The same for the state officials.

My point is that the existence of such an authority prevents the legitimate exception from degenerating anarchy where soldiers or state officials end up doing as they please. You will, of course, say that I'm denigrating the moral issue, but this is yet another example of a disagreement I frequently have with moral philosophers and theologians like you, which reflects the different outlook on the proper relationship between morality and politics that I have as a political scientist.

Our real danger in this county lies, as it has for decades, in precisely the opposite direction--namely, that our elites will continue by undemocratic means and the power of the courts to transform the country into something utterly unrecognizable, and that the states will go along with this at every single point, dotting every i and crossing every t, in the name of the rule of law.

The problem, I think, is much broader and deeper than corrupt elites. Popular resistance (locally or nationally) to these power grabs by the feds is fairly rare and usually unprincipled (including among conservatives), so, as the saying goes, "we've met the enemy and he is us."

The problem, I think, is much broader and deeper than corrupt elites. Popular resistance (locally or nationally) to these power grabs by the feds is fairly rare and usually unprincipled (including among conservatives), so, as the saying goes, "we've met the enemy and he is us."

But that doesn't mean that it's necessarily wrong in principle. It's *usually* unprincipled, but in the instances where it isn't it can be a good thing-again, I go back to the example of Massachusetts in the civil war era spiriting away blacks to Canada.

yet another example of a disagreement I frequently have with moral philosophers and theologians like you, which reflects the different outlook on the proper relationship between morality and politics that I have as a political scientist.

Well, I don't know what "proper relationship" you believe ought to exist, but I am a natural law supporter. In that realm of political-moral theory, a law that violates natural law or divine law is no law, and cannot bind in principle. In that situation we are bound to ask a further question: which way (compliance or non-compliance) will cause the least disruption to the common good given that it is no law. For attempted but invalid laws that merely attempt to remove from me (as a private individual) a right to act which I hold naturally, my compliance with the "law" will often be the better course, for a variety of causes (that way I won't tie up court and penal resources, I won't get put in jail, I won't be a bad example to those who don't understand that the "law" is invalid, etc.) But if I find that after weighing all the competing goods that it is not better for me to obey the apparent but invalid law, it's not a matter of anarchy - the not-law is, itself, AN-archic in principle - though it may appear so to the unreflective.

But it's much more difficult issue when the invalid law is that of the federal authority trying to supplant a valid state law on a matter that is not ceded to the federal powers, especially a state law that pursues an obligatory state good. In that case, the state authority has an even more difficult evaluation of whether to submit to the invalid federal attempt. Giving the appearance of consent to the federal authority's mis-application of the division of powers itself is one of the prudential problems that must be sorted. But in any case, a state's choosing to disobey the apparent but invalid federal attempt to exercise authority it doesn't have can't be anarchic, as a matter of definition, that's a misplacement of the problem. What is anarchic is the federal authority's extra-legal attempt. It may lead to other anarchic problems (like civil unrest or even civil war), but the "leads to" must also be laid at the door of the federal mistake, not the state's act in pursuit of proper law and proper state powers.

The obligation to obey valid authority is an obligation that rests on ALL intelligent creatures, including derivative creatures such as the state or the federal government. But all LOWER authorities receive their power from a higher authority, eventually that means from God. So there can be no valid exercise of authority by a lower power that is contrary to that of the Divine authority. Thus, for all intelligent agents, the very notion of being obedient to a power includes within it the rational assessment that (a) this is a command that bears on me; (b) this command is within the scope of authority of the ruler who gave it; and (c) this command is not contrary to all higher laws as I perceive them. Items (b) and (c) are irrelevant if the command comes directly from God, otherwise they apply to all received orders. To knowingly obey a "law" from a lower power that runs directly contrary to the law of a higher power is not obedience properly understood, it is something else altogether. Such false obedience is anarchic, because it defies the reality that lower law-givers receive their authority in virtue of a higher power and only within the limits of that higher power's grant of authority.

But in any case, a state's choosing to disobey the apparent but invalid federal attempt to exercise authority it doesn't have can't be anarchic, as a matter of definition, that's a misplacement of the problem. What is anarchic is the federal authority's extra-legal attempt.

Tony, I couldn't have put it better.

Popular resistance (locally or nationally) to these power grabs by the feds is fairly rare and usually unprincipled (including among conservatives), so, as the saying goes, "we've met the enemy and he is us."

Perseus, I must say I find this a rather astonishing comment. It is no small matter to pass either a state or (in the case of the federal BPA ban) a federal law. It takes a good deal of organization and work. Yet it is _precisely_ those careful, orderly, lawful processes that you say should *not* be carried out if they are contrary to the letter and spirit of some insane court ruling--a power grab by the feds.

The only recourses you allow to "popular resistance" are constitutional amendments and revolution, though I doubt you actually would prefer full-scale revolution to the small-level resistance of locking up an abortionist or two. As for constitutional amendments, several points:

a) The very operation of a constitutional republic assumes some degree of good faith effort by the relevant branches of government to interpret the founding documents. With the concept of the "living constitution" such good faith effort came to be considered unnecessary. When no such good faith effort has been made, it is ludicrous to say that each new, anarchic, usurpatious, and insane "ruling" from the federal judiciary must either be slavishly followed by the states or else overruled by the cumbersome mechanism of a constitutional amendment. We can perhaps see this most clearly if we imagine the court ruling (which could of course happen) that the Constitution says ~A where it expressly says A. For example, if the Court ruled that the Constitution's deeper or living meaning is that Congress _may_ make a law forbidding a hitherto permitted religious service such as a Catholic Mass. It should not be necessary to pass repeated constitutional amendments saying "A" _again_ because the Court has seen fit to interpret the Constitution in a way that betrays all good faith attempts to read the document.

b) Moreover, once the doctrine of slavish obedience to all court whims disguised as interpretations is in place, there is no reason to assume that such an amendment would be effective. The court could, for example, be appealed to by opponents of the amendment to "rule" that the amendment procedure had not been followed, and once the postmodern court is allowed, the court could "rule" this even if the amendment procedure had indeed been followed. At which point we would be expected either to break out in armed rebellion full-scale (by you) or else meekly to accept that no amendment had been passed. Or, the court could simply wait until the amendment was passed and was hence part of the "living Constitution" and could then rule that it meant the opposite of what it said. Why not? Once good faith in constitutional interpretation has been abandoned and quodlibetal court power has been put in place, presumably the people who worked to pass the amendment will be told what you have just told the people who work to pass a law: "Sorry, guys, your only options are revolution or passing another amendment. Better luck next time."

In short, I find it a little outrageous that you make criticisms such as lack of principle and the like against conservatives when you make up such restrictive rules--rules which ultimately tie the hands of principled conservatives in the realm of non-violent opposition to what you concede are federal power grabs. In the context of your other remarks, such criticisms have inevitably the character of a taunt.

My point is that the existence of such an authority prevents the legitimate exception from degenerating anarchy

In case my answer to this was not clear, the very threat of a constitutional crisis is quite sufficient to keep the legitimate exception from degenerating into anarchy. No governor _wants_ a showdown with federal marshals. Indeed, as I pointed out, all governors now in existence fear that to such an extent that they will never, never actually do anything that will court it. The fact that the federal government can and perhaps will send armed marshals to carry out a federal court order over the objections of state officials, creating a severe constitutional crisis, is quite sufficient to prevent anarchy from the states upward. What we don't have right now is any willingness to prevent anarchy (such as Tony so aptly explained it to be) from the federal judiciary downwards. For a state quietly to go about its own business of passing a law against abortion and arresting and convicting abortionists under that law seems an extremely _minimal_, orderly, and peaceful sort of check and balance against otherwise unrestrained judicial anarchy. Should the federal government choose to react with force, the initiation of aggression and physical threat (to anyone but the abortionist at the time of his arrest) would be solidly on the side of the federal government.

There really is not the slightest danger of anarchy caused by state defiance. If every governor and state legislature and state judiciary in the country thought just like Lydia McGrew and Tony M., state laws in defiance of crazy federal court rulings, prompting possible constitutional crises, would not be an everyday occurrence. Unless, of course, the federal courts decided to start making _more_ crazy rulings. That, of course, is their choice. And even in some of those cases, what would happen would simply be that the states would _refuse_ to take some _new_ action that the courts were ordering. For example, if SCOTUS decides to re-define marriage, all a state would need to do to "defy" such a ruling would be to do nothing, not to rewrite its marriage laws, not to rewrite its forms and so forth, and to instruct its local justices of the peace to carry on as before. No new laws would need to be passed, and nobody would need to be arrested, unless, of course, there were riots or trespasses (protests involving refusing to leave state buildings) or something, which would be just enforcing standard laws against riot and trespass.

Tony: In that realm of political-moral theory, a law that violates natural law or divine law is no law, and cannot bind in principle. In that situation we are bound to ask a further question: which way (compliance or non-compliance) will cause the least disruption to the common good given that it is no law.

I reject that view of natural law, and the idea that individuals should be their own interpreters of natural law and retain the full right to violate any positive law when they don't think that the advantages outweigh the disadvantages of compliance is to all but return to a state of nature. Now perhaps you think like MLK Jr. that people need to accept the legal penalty when violating the law, but the point is that there must be an enforceable limiting principle to prevent anarchy.

Lydia: It should not be necessary to pass repeated constitutional amendments saying "A" _again_ because the Court has seen fit to interpret the Constitution in a way that betrays all good faith attempts to read the document.

Then pass an amendment to strip or limit the federal judiciary's power of judicial review. Our strong form of judicial review--virtually unlimited in scope and relatively difficult to overturn--isn't that common among democratic regimes. One could also lower the super-majority requirements for proposing and ratifying amendments.

The only recourses you allow to "popular resistance" are constitutional amendments and revolution.

The most obvious other recourse is in the other elected branches of the federal government, which have constitutional means to check the judicial branch short of constitutional amendment. Madison said that if the vigilant spirit of the American people "shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate anything but liberty." The people, of course, did tolerate such a thing for several decades, and they tolerate comparable acts of overreach by the federal judiciary, so, once again, I think that the people appear prepared to tolerate anything but liberty.

If every governor and state legislature and state judiciary in the country thought just like Lydia McGrew and Tony M., state laws in defiance of crazy federal court rulings, prompting possible constitutional crises, would not be an everyday occurrence.

I'm not so sure about that given the range of things that you seem to think warrants disobedience, and it would amount to de facto regime change into something more like a confederacy.

If every governor and state legislature and state judiciary in the country thought just like Lydia McGrew and Tony M., state laws in defiance of crazy federal court rulings, prompting possible constitutional crises, would not be an everyday occurrence.

Every other week would still be bad.

For example, if SCOTUS decides to re-define marriage, all a state would need to do to "defy" such a ruling would be to do nothing, not to rewrite its marriage laws, not to rewrite its forms and so forth, and to instruct its local justices of the peace to carry on as before.

...and pay the fines and court costs for all the federal lawsuits against local officials.

The most obvious other recourse is in the other elected branches of the federal government, which have constitutional means to check the judicial branch short of constitutional amendment.

Perhaps you would explain exactly how you envisage this as working in the case of Roe v. Wade.

I am not closed in principle to the idea of Congress's passing legislation limiting federal judicial powers of review over abortion cases, but I have yet to be convinced that the text of the Constitution actually gives Congress the power to do this w.r.t. specific topics or types of state and federal laws.

As far as the executive branch, I have myself suggested in an earlier post that a sympathetic President could work *in concert with* a state willing to ignore an outrageous court case. The President would order that no federal marshals be sent to enforce federal court orders against the state. But this can't be what you have in mind, so I'm at a loss to see where the federal executive branch could, in your view, legitimately counteract such court overreach in a situation like Roe.

I have yet to be convinced that the text of the Constitution actually gives Congress the power to do this w.r.t. specific topics or types of state and federal laws.

The traditional view is that Congress has plenary power over the jurisdiction of federal courts save for the few areas specifically mentioned, so it may do pretty much as it pleases. Why do you disagree?

As I recall from the time when I investigated the option, because the text says that the courts exist as established/set up by Congress, not that Congress can establish a court but then say, "You have no jurisdiction over cases relating to x topic." Also because, as I recall, certain very relevant types of cases for these issues would have SCOTUS as having immediate rather than appellate jurisdiction, and it did not appear that Congress could limit SCOTUS's immediate jurisdiction, since it was set up not by act of Congress but by the Constitution itself.

But look, Perseus, as Tony points out, in the case of abortion we are talking about a federal court telling state officials that they may not carry out the core functions of any legitimate government--the protection of its innocent citizens against violence. Yet you come along saying that unless there are enough people in the country to amend the Constitution in this way or another, or unless there are enough members of the federal Congress who interpret the Constitution in such a way that they can limit the federal courts and who want to do so, and so forth, then somehow "the people" are to be blamed for what is manifestly being done by a small oligarchy--namely the federal courts. Moreover, you are saying that unless "the people" on some wider and more cumbersome scale do what you dictate, the state officials cannot simply *get on with* protecting their own citizens but must leave them unprotected! In fact, that they have a duty to refuse to protect them unless some _federal_ remedy can be found. This is, to my mind, outrageous. Imagine applying every single word you have said, mutatis mutandis, if the courts "found" in the Constitution tomorrow a parental right to take any child under the age of twelve to a clinic and have him beheaded by contract. It would be outrageous carping and sniping to sit about and say that Governor Dalrymple, or any other state governor, and the entire state apparatus that currently protects pre-pubescent children, must come to a halt, must not protect them, until and unless some federal remedy can be found in the form of either a Constitutional amendment limiting judicial oversight or a Congressional rule doing the same, and that if none of those are done the blame lies not chiefly with the judges but with "the people," not including, of course, "the people" in North Dakota who _do_ want to protect their children, but whom you have just said may not do so!! This gets simply crazy. Nor is this merely a reductio, for as far as I am concerned the Roe decision is *exactly like that*--it is an order from the court that an entire class of citizens must be unprotected from naked murder, based solely on age and location. We have, moreover, always walked on something of a knife edge concerning the question of whether this right actively to kill will be formally extended to newborn babies (or "neonates" as our bioethicist friends might call them) and it is not beyond the realm of possibility that within my lifetime state officials will be ordered not to protect them, either, and that resistance to such an outrage will as in this case be clumped by *state* rather than emerging in the federal ways you wish to dictate. That such considerations do not move you, that your position of required state passivity before federal action appears to require you to take such reductios with a ho-hum, should tell anyone all he needs to know about your position.

Moreover, _any_ federal amendment, including one limiting judicial review, is subject to the corrosive effects of postmodern judicial interpretation. Why should opponents of the amendment (knowing its likely effect on their pet issues) not appeal to the federal courts anyway in some case, the federal courts accept the suit, defying the plain meaning of the amendment, and rule as they want? Again, when you have a lawless court applying postmodern interpretation, as we currently do, I see nothing actually stopping them from doing so. And for that matter the same would apply to a Congressional law limiting their jurisdiction. They could simply declare it unconstitutional, and for that matter with more excuse than many other declarations of unconstitutionality they have already made!

Step2, your solicitude for the state coffers in the face of lawsuits against state officials is touching. And frivolous. If SCOTUS were to rule that all state officials must attend a yearly Pride parade, and many refused and were sued, your concern would also apply. And be just as frivolous.

Let the supreme court rule.

Then, let them enforce it.

The problem is our politicians are so weak they will not stand against a court that is just that: a court. Rulings that are plainly boloney should not need to be obeyed.

Congress could limit the courts' power of review, but there is nothing to stop a court from declaring that any federal law passed to enable a state to violate the 14th amendment in any way is itself unconstitutional. In the current system, the courts always win unless Congress impeaches a judge. That has almost never happened, and it would likely be politically impossible to pull off, say, the impeachment of all 5 Supreme Court judges who ruled in favor of the city in Kelo v. New London or the majority in Roe. In fact, it remains to be seen if its even legally possible to remove a judge who makes bad constitutional rulings, especially one on the Supreme Court.

Mike T., I agree that it is both practically impossible and legally questionable as to whether justices can be impeached for crazy rulings. For this reason I have always been somewhat frustrated almost to the point of being angered when people (sometimes including very fierce pro-lifers) themselves express anger at "the American people" because Roe was not instantly followed by impeachment of all the necessary justices. Seriously? The House was going to vote for articles of impeachment against five justices all at once and the Senate was going to convict and remove them? They seem to me not to have the slightest idea how difficult to the point of impossible that would have been. The blame lies squarely with the justices who author the rulings. Blaming "the people" for not doing something unprecedented, radical, not to mention questionably legal to "kick the bad judges out of there" is simply irascible and unfair. Indeed, if it comes to that, the Founders did not intend that the court have the power that it presently has to rule, but they did intend it to be difficult to simply "get rid of" justices, which is the famed "independence of the court" and is the reason they are appointed and not elected.

But we must remember, that the Supreme Court has no enforcement mechanism. In theory congress and the presidency could just ignore the rulings they did not like, although that could lead to retaliation in the next administration...

And so, too, and more plausibly, could state governments, which is what we are arguing should take place in North Dakota. (By "more plausibly," I mean that a smaller and more local group would have to agree on the legislation and also that it makes sense for abortion legislation to be state legislation.)

Now, the federal court does in a sense have an enforcement mechanism, which is the use of federal marshals to enforce court orders--e.g., a court order that an abortionist be released from prison.

What I have discussed before on a different post is the cooperation of a pro-life president with a pro-life state to order that no federal marshals be sent. At that time we had an interesting discussion of the authority structure for federal marshals: Are they directly under the orders of the federal courts (having in effect been turned into an "army" or an executive power residing in the judicial branch), or can their action be stopped by the federal executive branch? Evidently there is some ambiguity on that question at this time.

Seriously? The House was going to vote for articles of impeachment against five justices all at once and the Senate was going to convict and remove them? They seem to me not to have the slightest idea how difficult to the point of impossible that would have been. The blame lies squarely with the justices who author the rulings.

Yes, Lydia, I think that's a balanced response. The underlying conceptual problem is this: do you want a judiciary that is subject to Congressional review for the _political_content_ of their rulings, and thus not "independent" of Congress and politics, or do you interpret the impeachment check Congress has on the courts when they are not "in good behavior" to exclude consideration of the content of rulings? There is no absolutely perfect solution to this quandary, given fallen human nature the problem is inherently not capable of a simple "procedural" solution that does not depend on good people doing wisely and prudently in their duties in office. The design and historical answer to the above has been that "good behavior" does not refer to the content of rulings from the bench, period. And I think that it is reasonable to suppose that the Founders were more or less in agreement with that.

Which implies, of course, that the REAL "check" on judiciary powers lay elsewhere: one of them being that the courts did not control the active arms of government, and thus could not enforce their own decisions. They had to rely on other agents for that, and thus other agents had to agree to abiding by such decisions. There should be no doubt that this was the exact design:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. [Hamilton, Federalist 78]

So what then is the problem? More on that in a moment...

Yes, and Madison more or less designed it [ the 10th Amendment] that way. As far as he was concerned, the language was redundant (his strongest Anti-Federalist opponents agreed and thus were very dissatisfied). And much to his chagrin, he later recognized how few constitutional checks that the states (particularly an individual state) have against the federal government.

Well I don't know if Madison designed it or merely proposed it in Congress, but it was his proposal originally that the cap on each federal branch's powers with respect to each other was stated explicitly along with the limit with respect to the "other powers" in favor of state powers:

Eighthly. That immediately after article 6th, be inserted, as article 7th, the clauses following, to wit: The powers delegated by this constitution, are appropriated to the departments to which they are respectively distributed: so that the legislative department shall never exercise the powers vested in the executive or judicial; nor the executive exercise the powers vested in the legislative or judicial; nor the judicial exercise the powers vested in the legislative or executive departments.

The powers not delegated by this constitution, nor prohibited by it to the states, are reserved to the States respectively. [Madison's proposal to amend Constitution]

I would submit that what he later was chagrined at was, instead, the on_the_ground concrete application of these provisions in historical results: not that the document itself was gravely lacking, but that people chose to apply it without sufficient attention to it's guiding principles. They didn't follow it as intended.

If you follow the concept, then, of the division of powers, Madison thought that the courts would be constrained by having to get the other branches and powers to "go along with" their determinations. Which, OF ITS VERY NATURE, means that it belongs to the other branches to weigh and consider and decide whether to go along or not. (Not for purposes of impeachment, but just about following this specific ruling.) The courts were not supposed to hold any physical means of coercion, their sole means of "control" was to be that of reason: its "judgment" produced in a rationale that explains, convinces, persuades, solidifies, and extends the rule of _reason_ and rational law rather than disrupts it. Thus, if a court were to produce a judgment that lacks the force of reason, producing a determination that fails logically or fails to keep within the proper bounds of the judiciary's limits, the other powers ought to take them to task, including by refusing to comply with the ruling. That's not individual men refusing to comply, that's the other powers explicitly provided by the Constitution.

Now, with respect to a judicial ruling in which the courts arrogate a power to themselves at the expense of another of the federal branches, it is reasonable and likely that the other federal powers would be keenly interested and would be willing to take up whether to comply with or repudiate the court's decision. If, however, the ruling arrogates to the federal government powers that belong to the states, it is unrealistic to expect the other FEDERAL branches to be the normal party to step in and repudiate the ruling, since they gain by it themselves. Rather, what the 10th Amendment (as proposed) did was to align the states themselves under the _same_ concept as restrained the federal branches with each other, of inherent right to balance and check the federal branches - to make it clear that with respect to state powers, the states were competent bodies to decide to comply or not to comply with judicial rulings, (or with acts of other federal branches that assume state powers to federal hands).

To get back to abortion: If you read Roe, and sift it carefully, you find that it's determination does not in fact comport with sound reason. I am not saying this because it draws conclusions from premises that I disagree with, rather it draws conclusions more or less out of thin air, without substantive constitutional, legal, and factual premises to provide such conclusions. Not just my thought, there are liberal law professors who think Roe is awfully thin on that ground.

John Hart Ely wrote several influential law review articles, including a highly critical analysis of the Supreme Court's decision in Roe v. Wade in an article entitled "The Wages of Crying Wolf," published in the Yale Law Journal, wherein he argued that the Court's decision protecting abortion rights was wrong "because it is not constitutional law and gives almost no sense of an obligation to try to be." [Wiki]
“One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” — Laurence H. Tribe, Harvard law professor.

So, it should not be surprising in the least to find states testing that failure in various ways, including 10 Amendment approaches.

As political scientist/lawyer Mark Graber has suggested, constitutional issues become "settled" if and only if the opponents give up. The most serious opponents of Roe give no indication that they are prepared to give up the struggle, not least, of course, because they view abortion as the wanton murder of innocent children. I do not share that view, but I cannot pronounce people who hold it as being irrational either in their philosophical view or the belief that the Constitution, properly interpreted, allows state legislatures to prevent abortion.
If you read Roe, and sift it carefully, you find that it's determination does not in fact comport with sound reason. I am not saying this because it draws conclusions from premises that I disagree with, rather it draws conclusions more or less out of thin air, without substantive constitutional, legal, and factual premises to provide such conclusions.

Exactly. Which is why an originalist like me is fiercely opposed to Roe both for reasons of its bad faith and for reasons of its content. Naturally, it's a worse matter for blatant postmodernism and bad faith in interpretation to be put into the service of an evil outcome. But one can recognize the bad faith and postmodernism in the notion of the "living constitution" and in its concrete applications even if one does not deem the outcome in Roe to be as evil as I deem it to be.

What those who want the states tamely to submit to the federal judiciary do not seem to realize, or perhaps are insufficiently upset about, is the fact that there is no limit to a court that operates in bad faith and whose rulings are slavishly followed, however crazy they may be. No limit. We've already canvased several possibilities here, including Congressional limitation and constitutional amendment. And whatever one may think of the advisability of any of them, one cannot avoid this fact, over and over and over again: If the Constitution simply means what the court says it means, and if the states are bound to comport themselves in full compliance with whatever it says, then there is no reason in principle to assume that any of these attempts would work as opposed to being subverted by the very Court they were intended to curb. Ultimately, somebody or other who has both a prima facie legal right and actual force to *do* something must say, "I do not submit." It seems to me entirely right and natural that that someone should be the state forces to which properly belongs the actual carrying out of the laws which the usurpatious court insists on overturning or changing.

because the text says that the courts exist as established/set up by Congress, not that Congress can establish a court but then say, "You have no jurisdiction over cases relating to x topic."

Neither older S.C. cases nor justices such as Scalia (see his opinion in Hamdan) appear to support your view on that.

we are talking about a federal court telling state officials that they may not carry out the core functions of any legitimate government--the protection of its innocent citizens against violence.

That's hardly new. One could cite rulings from the slavery era to current era criminal due process rulings that likewise tie the hands of state officials. That still doesn't give an individual state a license to do as it pleases.

Yet you come along saying that unless there are enough people in the country to amend the Constitution in this way or another, or unless there are enough members of the federal Congress who interpret the Constitution in such a way that they can limit the federal courts and who want to do so, and so forth, then somehow "the people" are to be blamed for what is manifestly being done by a small oligarchy--namely the federal courts.

I would indeed be more impressed if an amendment were passed or if the people's representatives in Congress did strip federal courts of jurisdiction and the courts ignored it, but Congress hasn't bothered to do so with respect to abortion as Congress has in fact done with respect to other subjects. And Congress hasn't bothered because there isn't a broad enough public clamor for overturning Roe. So, yes, the people (along with the other two branches) share the blame for allowing this state of affairs.

In fact, that they have a duty to refuse to protect them unless some _federal_ remedy can be found. This is, to my mind, outrageous. Imagine applying every single word you have said, mutatis mutandis, if the courts "found" in the Constitution tomorrow a parental right to take any child under the age of twelve to a clinic and have him beheaded by contract...

One could think up all sorts of such examples instigated by one or more branches of the federal government. If you don't like the options available under the Constitution, then either change the Constitution to provide more formal checks or invoke your natural right of self-defense and resort to an extra-legal option such as revolution, but do not claim that what you are doing is constitutional.

I do indeed claim that what I'm suggesting is Constitutional, because

a) the 10th amendment expressly limits the powers of the federal government, though at the time the Founders were more worried about the Federal Congress than the Federal judiciary, and

b) the very existence of the Constitution and of all its clauses presupposes some appearance of good faith in the attempt to interpret it. If one branch, the judicial, can abandon any attempt at good faith constitutional interpretation and all states are bound to accept even its most bizarre rulings, then the very notion of a Constitution as an entity is undermined. "The Constitution" simply becomes an empty name for "the tabula rasa on which the nine members of the Supreme Court write their opinions on how the nation is to be governed." It is self-evident that this was not the intent of the Founders in the very setting up of the Constitution.

What you mean by "being more impressed" if the Congress tried to limit the power of the federal courts on this issue is a little unclear to me. Perhaps _then_ you would permit North Dakota to ignore the federal courts if they struck down its laws?

If, however, the ruling arrogates to the federal government powers that belong to the states, it is unrealistic to expect the other FEDERAL branches to be the normal party to step in and repudiate the ruling, since they gain by it themselves. Rather, what the 10th Amendment (as proposed) did was to align the states themselves under the _same_ concept as restrained the federal branches with each other, of inherent right to balance and check the federal branches - to make it clear that with respect to state powers, the states were competent bodies to decide to comply or not to comply with judicial rulings, (or with acts of other federal branches that assume state powers to federal hands).

I being by noting that Madison expected the federal judiciary to be the usual last resort in deciding jurisdictional disputes between the federal government and the states under the Constitution: "I have on some occasions, represented the supreme Court of the U. S. as the judge in the last Resort, on the boundary of jurisdiction between the several States & the U.S. ...The Judiciary there may in the course of its functions be the last resort within the provisions & forms of the Constitution." Only in extraordinary cases did Madison think that it would be necessary to go even further, but that resort is to be found outside of the Constitution: "the people, the parties to the Constitution, the last in cases ultra-constitutional, and therefore requiring their interposition." (Letter to Nicholas Trist, December 1831).

Madison did not understand the 10A to empower an individual state to ignore a law, act, or ruling by the federal government because that would return us to the situation under the Articles of Confederation. He was quite clear that he understood "the nature of the Constitutional compact, as precluding a right in any one of the parties to renounce it at will, by giving to all an equal right to judge of its obligations" (Letter to Mathew Carey, 27 July 1831). Any "ultra-constitutional" action by the states would have to be taken collectively. In sum, there is "no middle ground, between a natural and a constitutional right, on which a right of nullifying interposition can be placed; and it is curious to observe the awkwardness of the attempt, by the most ingenious advocates." (Notes on Nullification, 1835)


Once again, ignoring blatantly outrageous court rulings which strike down state laws or which require states to have and put into effect new laws they have never had before is not identical to nullifying federal laws. I have pointed this out repeatedly.

If I understand the Madison quotation aright, it is rather astonishing that you would cite it in the present context, as you are arguing precisely that the states _do not_ have an "equal right" (to the right of other parties of the compact) "to judge of the obligations" of the Constitutional compact. You are granting a quodlibetal right to the federal government to do that, to the point of annulling any and every state law that they please to annul, and even writing new state laws as they think the state laws should be instead (as we may see in this current SCOTUS term), with only federal remedies (potentially) available.

At that time we had an interesting discussion of the authority structure for federal marshals: Are they directly under the orders of the federal courts (having in effect been turned into an "army" or an executive power residing in the judicial branch), or can their action be stopped by the federal executive branch?

The Marshals are executive branch employees under the Department of Justice, so they are very much under the President's direct sphere of authority. Disobeying a presidential directive could be executed, but would be very dangerous because the President, via the Attorney General, has an incredible degree of flexibility in tasking the FBI. The FBI derives its jurisdiction from Attorney General guidelines, not a specific congressional charter. Thus the FBI could easily be tasked with arresting all of the rogue marshals and would likely do so gladly because the FBI has a rich history of not playing nice with anyone else in federal law enforcement.

If I understand the Madison quotation aright, it is rather astonishing that you would cite it in the present context, as you are arguing precisely that the states _do not_ have an "equal right" (to the right of other parties of the compact) "to judge of the obligations" of the Constitutional compact.

The quote is quite clear that Madison understood the Constitution as "precluding" an equal right of each state to judge of the obligations of the Constitution.

Once again, ignoring blatantly outrageous court rulings which strike down state laws or which require states to have and put into effect new laws they have never had before is not identical to nullifying federal laws. I have pointed this out repeatedly.

And once again you make an untenable distinction between federal court rulings and federal laws. Under the Constitution, a federal court is simply not situated the same as a single state. Madison:

"It will not escape notice that the Judicial authority of the U. S. when overruling that of a State, is complained of as subjecting a Sovereign State, with all its rights & duties, to the will of a Court composed of not more than seven individuals. This is far from a true state of the case. The question wd. be between a single State, and the authority of a tribunal representing as many States as compose the Union."

The context of that comment of Madison's *is* the claim of a state to nullify a federal law. I presume he is then talking about the court's interpretation that the federal law in question is in fact constitutional. Since the very point at issue between you and me is whether this "tribunal representing all the states" would have the same right to interpret the Constitution so as to overthrow laws of states which had lasted for many decades, thus instituting regime change by what is said to be an "interpretation" of the constitution _against_ state laws rather than _for_ a federal law, I don't think that quotation can be said to have addressed that issue.

In any event, I consider you to have already bitten the bullet, Perseus, when you essentially admitted that your position would also tie the hands of the states if a right to infanticide or to kill all children under twelve were "found" in the Constitution by the federal courts. Your position really is that in that case the states would have to allow those children to be killed at will and not to enforce their own long-standing laws until and unless a federal remedy could be found which they were lucky enough to "get to stick."

As far as I am concerned, this is, among other things, an utter reductio of your position.

The context of that comment of Madison's *is* the claim of a state to nullify a federal law. I presume he is then talking about the court's interpretation that the federal law in question is in fact constitutional. Since the very point at issue between you and me is whether this "tribunal representing all the states" would have the same right to interpret the Constitution so as to overthrow laws of states which had lasted for many decades

Madison left no doubt that federal courts could strike down a state law based on either the Constitution or federal statute law: "The obvious necessity of a controul on the laws of the States, so far as they might violate the Constn & laws of the U. S. left no option but as to the mode. The modes presenting themselves were 1. A Veto on the passage of the State Laws. 2. A Congressional repeal of them. 3. A Judicial annulment of them. The first tho' extensively favored at the outset, was found on discussion, liable to insuperable objections arising from the extent of Country and the multiplicity of State laws. The second was not free from such as gave a preference to the third as now provided by the Constitution." Moreover, how long a state law has been on the books is immaterial in determining whether federal courts have the power to strike it down. It is only a matter of judicial prudence in deciding precisely when and how to do so.

In any event, I consider you to have already bitten the bullet, Perseus, when you essentially admitted that your position would also tie the hands of the states if a right to infanticide or to kill all children under twelve were "found" in the Constitution by the federal courts.

I refuse to be browbeaten by your parade of horribles. As I said, the hands of officials acting in individual states are tied in the sense of acting under the U.S. Constitution. Actions taken by them in violation of a federal ruling would be extra-constitutional. Like the Southern nullifiers/secessionists, I regard your position as wanting to have your cake and eat it too.

Actions taken by them in violation of a federal ruling would be extra-constitutional.

Therefore, according to you, impermissible. Let's not pretend we're just disagreeing about a label, here. You pretty clearly believe they have a _moral duty_ in any case in a "parade of horribles" (where Roe certainly belongs, among others) to refrain from prosecuting their own laws in such cases until and unless the sort of federal remedy you prefer can be found.

Madison did not understand the 10A to empower an individual state to ignore a law, act, or ruling by the federal government because that would return us to the situation under the Articles of Confederation. He was quite clear that he understood "the nature of the Constitutional compact, as precluding a right in any one of the parties to renounce it at will, by giving to all an equal right to judge of its obligations" (Letter to Mathew Carey, 27 July 1831). Any "ultra-constitutional" action by the states would have to be taken collectively.

It is unclear to me whether these Madison quotes (so late in his life, 40 years after the Constitution was drafted and 20 years after his presidency) arise from his reflections on the Constitution after 40 years of practice had given some questions an historical answer that may not have been the only way things could have been done in practice, or arise from his original concept of how the powers are divided. The above quote, referring to an "ultra-constitutional" action, pretty clearly includes reference to to an amendment, or something still more grave like revolution, for both of these are manners of resorting to the people's original capacity to decide things for themselves. Are those the ONLY 2 options or possibilities to which it refers?

I am willing to consider the problem of allowing a single state to "nullify" federal acts, including federal courts overturning state law. A well-designed socio-political system needs to have an independent third-party arbiter available to decide things between those who disagree. For, persons are not good judges of their own cases. This is precisely why we have courts to hear civil disputes. And courts also hear disputes between citizens and the executive arm of the state: you can take the government to court if you think it is violating law, for example. So, in the disputes between different states, there must needs (in a single overarching union) be an independent arbiter to decide between the parties, and this is exactly one of the roles of the federal courts. Similarly, if there is a dispute between the several states and the executive arm of the federal government, the federal courts are supposed to be an equitable arbiter between them. Likewise, the states can claim a law passed by Congress is contrary to the Constitution and this will be determined by the courts. Finally, when a state law, or even a state constitutional provision, is inherently contrary to the federal Constitution, the courts decide the issue.

However, what independent arbiter is to hear the dispute if the states have a dispute with the federal courts, in particular the SC? It is nonsensical to suggest that the SC hear its own case, both because "nobody is a good judge in his own case" and because they would just affirm their already given answer anyway, without bothering to try the issue.

In theory, you have only 2 possible answers: either there IS no hearing allowed, because the SC is the ultimate authority above all others and no recourse may be had to another arbiter, or there is some venue to be heard. Let's examine the possibilities here.

From the standpoint of Perseus and his associates, it is clear that the president and the Congress cannot stand in to hear the dispute, because the courts are considered to rest in judgment on them, not the other way around. They have no standing to presume to question the SC on the court's interpretation.

Nor (in their thinking) do any of the states stand in judgment, because they are lower than the federal government and lower than the federal courts, whose role it is to judge them and not the reverse. And this was designed so by intention, for several reasons: for one, then the STATE would be "trying" its own case, which we already said is a bad idea, and secondly, because you would end up with a national hodge-podge: federal law would mean something different in each state, depending on how the states separately decided to comply with or allow the federal law to work.

But on the other side, it is abundantly clear that in the original design (from my previous quote from Hamilton) that at least at the federal level, NONE of the three branches are superior to the others in terms of "access to" or capacity to act for the Constitution. Yes, the courts had the judicial role to judge laws, because Congressional laws may run counter to the Constitution which is the source of Congressional power to begin with. But that one role to interpret the laws and the Constitution does not (in Federalist 78) present us with a Judicial Monarchy, because the other branches have their own sorts of power of a different nature than that of the judiciary, and are entitled/empowered to use THOSE powers to restrain the other branches (including the judiciary) when they exceed their Constitutional writ of authority. Thus, in original concept each of the 3 branches sit in a capacity of restraint over the unconstitutional acts of the others, and they are SUPPOSED to exercise those powers. This does not mean that the executive branch sits as an ultra-judiciary that sits in judgment on the judiciary: it's not judgment that it uses, but execution as its tool. These powers are written into the body of the document.

Many objectors say: but that way lies anarchy! If you don't have one power sit in ultimate authority over the others, you have one authority saying "do X" and another saying "do not do X" and then you get the mess of the Articles of Confederacy, or worse. The response to this complaint, valid to an extent, is that the Founders were willing to take that chance. They wanted to have a strong enough central authority to prevent the mess of the previous Articles morass, BUT THEY ALSO were unwilling to put "final" authority into any one branch's hands. They simply were not willing to erect a monarchy, even one that rested in 5 or 9 hands instead of 1. Thus their vision of the 3 branches is one of a kind of inter-restrained multi-archy in which the possibility of anarchy was inherent but not probable.

Why not probable? Because none of the branches were likely to continue to succeed in over-ruling another branch for long without constructing major concensus. For example, if the Congress passes a law to spend money on P program, and the president refuses to actually carry out P, the next year when funding decisions come around for the president's pet projects he is going to find it very difficult to get Congress to play along. He better be darn tootin' sure that he is right about not carrying out P, and THEN convince either the country or a new majority of Congress that he was right all along - finding a concensus to back him up. Thus in design there could be rare instances when one of the branches clearly over-stepped its bounds and another branch would be willing to stand close to the brink of anarchy to pull the erring branch back on its heels and force a reconsideration of the matter. The 3 branches being co-equal implies this very possibility: for the sake of long-term stability of the divided powers, each branch has to be willing to risk direct dispute with one of the others.

The plan and design of the 3 branches, then, is that none of them sits "above" or in final control of the others. In order to make this real instead of merely words on paper, though, this implies that at times each of the branches actually can and would carry out a refusal to comply with another branch, when push comes to shove and it's really important. What we actually saw, historically, is the courts won the "battle of the minds" and neither of the other 2 branches were willing to try a refusal to comply and test the an issue with a push back on the judiciary directly. The judiciary has been in the process of becoming an over-ruler to the other branches, contrary to design.

What about states then? I think Perseus has a point about not allowing individual states to nullify federal decisions: there are 50 states, and if all 50 decide to go their own way on all the federal rulings, you don't have a nation anymore. Like the above, the possibility of states' powers being taken up in direct struggle against a federal branch needs to be done rarely if at all, and ONLY in the course of creating a new better consensus than the federal rule retains. Can this be done and still retain the federal union? Can it lead only to secession or revolution?

I don't know if there is ONLY one answer, but I have AN answer that runs between the "one state nullifying the federal powers" and the "federal branches nullifying states' reserved powers" of the all-or-nothing points of view. You readers have seen my concept before: that a large consortium of states can nullify a federal breach of state powers. How large must the consortium be? For reasons that should by now be obvious, less than 3/4 of the states: if you have 3/4, you can do an amendment, and it should not take a new amendment of the Constitution to assert that they never put into the enumerated list of powers granted to federal union a power that they never consented to give. That it should take the same 3/4 to say "we never said that" that it takes to make a new grant of power would be madness.

Admittedly, there is fair reason to insist that it be more than 50% of the states, for if you want to claim that the states never gave a power to the federal union, and you can't get 1/2 of the states to agree, you may be just wrong. However, I will supplement my earlier proposal: the required consortium need not be fully 1/2 of the states in order to demand a vote of consensus. That is, if a federal branch does X that seems to a large minority of the states (I am going to say 33% to pick a starting point) to exceed the writ of ceded federal powers, then there should be a direct, binding obligation on the rest of the states to weigh in and decide together whether X act was, or was not, within the ceded powers granted to the federal government. And if a majority of the states thus polled say "no, we never gave that power" then the federal act is nullified.

Am I backtracking from suggesting that ND not "go it alone". No, I am not: in order to eventually find that a majority of states disagree with a federal branch about the fact that its X act is within federal powers, SOMEBODY has to take a stand first. I am fine with a single state be the first to take that stand on its way toward building that consensus that shows up, finally, by telling the feds they erred. I don't think ND would be "alone" in the matter very long.

Therefore, according to you, impermissible. Let's not pretend we're just disagreeing about a label, here. You pretty clearly believe they have a _moral duty_ in any case in a "parade of horribles" (where Roe certainly belongs, among others) to refrain from prosecuting their own laws in such cases until and unless the sort of federal remedy you prefer can be found.

As lesser officers under the U.S. Constitution, officials in an individual state are indeed bound as a matter of constitutional duty to comply with a federal court ruling due to "the supremacy of the Judicial power on questions...concerning the boundary of Jurisdiction between the U. S. & individual States." I do not conflate constitutional duty and moral duty or try to constitutionalize the latter when it's convenient. If officials in an individual state consider a matter grave enough to act in an extra-constitutional manner, then they should have the courage of their convictions to suffer the consequences.

From the standpoint of Perseus and his associates, it is clear that the president and the Congress cannot stand in to hear the dispute, because the courts are considered to rest in judgment on them, not the other way around. They have no standing to presume to question the SC on the court's interpretation.

Who are my associates because I seem to be stuck doing the heavy lifting for my side around here? As to your point, I reiterate that Congress can strip federal courts of jurisdiction and it has done so on multiple occasions (unlike removing justices because of disagreement over court decisions).

Many objectors say: but that way lies anarchy! If you don't have one power sit in ultimate authority over the others, you have one authority saying "do X" and another saying "do not do X" and then you get the mess of the Articles of Confederacy, or worse.

I'm not one of them. I argued for federal judicial supremacy over the states, not federal judicial supremacy over Congress and the president.

You readers have seen my concept before: that a large consortium of states can nullify a federal breach of state powers.

Because there is no formal constitutional recognition of a veto exercised collectively by the states (and strong constitutional arguments against it), you probably would need a constitutional amendment to make it stick, though perhaps you're right that a super-majority of states (if it included some big blue states) could insist on it such that it became a de facto amendment. I don't think, however, that ND's actions are going to do much propel the adoption of a proposal like that.

As lesser officers under the U.S. Constitution, officials in an individual state are indeed bound as a matter of constitutional duty to comply with a federal court ruling due to "the supremacy of the Judicial power on questions...concerning the boundary of Jurisdiction between the U. S. & individual States."

"Under the U.S. Constitution" here is capable of ambiguity. States are prior in principle to the federal union, and the federal union arises by reason of the states granting LIMITED powers to it. In that sense, the very nature of state office does not in principle provide that it lies "under" the U.S. Constitution in the sense that it _derives_its_very_source_ from it (as do federal offices), and it would be possible for a state official in his "official" capacity to have to defy a federal mandate that attempted to abrogated state powers, thus providing the very "case" that forced the country to look at and decide to restrain the federal branch that erred. This might look a lot like

officials in an individual state consider a matter grave enough to act in an extra-constitutional manner, then they should have the courage of their convictions to suffer the consequences.

but I don't think it would be simply extra-constitutional to do so. But I agree with the sentiment itself, that there are such grave cases where state officials should consider the matter grave enough, and should be ready and willing to push it even though they expect to suffer for it. Like, for example, St. Thomas More. I agree that doing it extra-constitutionally would work as well - by amendment or by revolution - but if those are the only two mechanisms then the states WERE in effect signing a blank check to the federal government when they handed it supposedly enumerated powers only, they failed to limit the powers, and they were instead constructing a purely and absolutely "national" entity even though they expressly claimed otherwise.

Perseus, here you say this:

I do not conflate constitutional duty and moral duty or try to constitutionalize the latter when it's convenient. If officials in an individual state consider a matter grave enough to act in an extra-constitutional manner, then they should have the courage of their convictions to suffer the consequences.

At the outset you said this:

Then the proper remedy is either constitutional amendment or revolution, not nullification by a single state.

I take the word "proper" to have a normative force of some kind. Moreover, I take it to be highly significant that, though revolution is also extra-constitutional (obviously) it is the _only_ extra-constitutional option that you, Perseus, previously allowed to be "proper."

Why is that? Not, presumably, because for a state to carry out its own laws against a SCOTUS ruling is extra-constitutional, because revolution is that.

I would guess that it is because revolution is so bloody and horrifying a thought that you _want_ to insist that it is the _only_ proper extra-constitutional remedy precisely so that revolution can be a bogeyman to keep the states from ever acting as states in any fashion that goes against the dictates of the federal government. In what I consider to be a rather forthrightly ad hoc fashion, you reject less radical proposals, allegedly because they are extra-constitutional but in reality because they are less radical and less horrifying, and because therefore some people (even if only a few "nuts" in a remote corner of the blogosphere) who don't want to advocate a revolution might nevertheless think that such a less radical move sounds like a good idea. So you simply rule them out of court and imply that *they are wrong*, though later you say that that isn't what you're implying.

I find myself more than a little baffled at this desire to erase--for this is what it comes to--the very existence of the states as true mediating institutions (to use the Catholic phrase) between the mass of bare individuals and the federal government, so that all that we have is the federal, central power set against otherwise unorganized "revolutionaries." The very fact that a state, enforcing a law against abortion, would create far fewer evils than the evil of sedition and revolution would seem to argue that acknowledging that the states have some powers of judgement and action would be a _good_ thing for the common good rather than a _bad_ thing. In any event, I would like to think that, if Mr. Madison had lived to the present day, he would acknowledge that our present regime with the incredibly lopsided power of both the federal government as a whole and the incredibly lopsided power of the federal judiciary, is not the one he and the other Founders originally intended. For myself I think that exceedingly obvious. And your extreme position regarding the federal judiciary, Perseus, and the duties (let's not pretend you don't think they are duties) of state officers qua state officers, which is in fact the prevailing position in the country, will only continue to move us farther away. Your insouciance about a "list of horribles" only makes this more clear. Nothing is out of bounds.

As a patriot, as one who loves my country, I consider that prediction a sad thing.

Perseus, I also consider that you show poor judgement when you say this:

Moreover, how long a state law has been on the books is immaterial in determining whether federal courts have the power to strike it down. It is only a matter of judicial prudence in deciding precisely when and how to do so.

Here we see a difference between an originalist, like myself, and a true legal positivist, which originalists are sometimes falsely accused of being.

The question is one of interpretation and evidence regarding it! It adds an element to the self-evident bogusness of a judicial "interpretation" for that "interpretation" to declare that state laws which have peacefully co-existed with X portion of the Constitution for a hundred years and more are now incompatible with it. As it happens, the living constitution doctrine means that such outrageous lies about unconstitutionality are told without the grace of a blush. (See a recent exchange between Justice Scalia and Mr. Olson.) But to those of us who do not accept the postmodern meaninglessness of the Constitution, the argument from longevity of state laws and their coexistence with the Constitution has epistemic force. And it should. Dismissing it in favor of the quodlibetal legitimate power of the federal judiciary to strike down anything, any time is blinkered in the extreme.

Let me add, too, that the bogeyman of revolution and even, to a lesser extent, the term "extra-constitutional," together with the dismissal of the longevity of laws struck down, are rhetorical and argumentative tropes that give the outrageous impression that the people turning the country upside down would be state officials who, let us say, in the wake of Roe had simply continued applying and enforcing long-standing state laws rather than the justices who issued the novel, obviously insane, unconstitutional ruling! This is perverse and deserves to be called out. It precisely reverses the actual roles in terms of regime change as between progressive justices, wielding their power with utter irreponsibility and bad faith to change the country in wildly revolutionary ways into their own image of Utopia, and conservative state actors quietly continuing to carry out their immemorial functions, functions which the Founders of the country, and even the authors of the 14th amendment, for that matter, obviously intended to be allowed to continue. This is indefensible thinking and reasoning.

States are prior in principle to the federal union, and the federal union arises by reason of the states granting LIMITED powers to it.

I reject that (confederate) view. First, the Union created the states, not vice-versa. The Union arguably began as early as the Articles of Association. With the Declaration, the Continental Congress acted in the name of one people and transformed thirteen "United Colonies" into thirteen "free and independent States" as part of the United States. Even before the Constitution, George Washington compared the relationship between an individual state and the federal government to that of the relationship between a county and a state government. In both cases the former is subject to the latter: "Counties, with as much propriety might oppose themselves to the Laws of the State in wch. they are, as an Individual State can oppose itself to the Federal Government, by which it is, or ought to be bound" (Letter to Rev. William Gordon, 8 July 1783).

Second, to settle any ambiguity that there might have been under the Articles of Confederation, Publius emphasized that it was not the states but the people (or if one prefers Madison's formulation, the people acting through the states in special conventions) who granted powers to the federal government under the U.S. Constitution:

It has not a little contributed to the infirmities of the existing federal system, that it never had a ratification by the PEOPLE. Resting on no better foundation than the consent of the several legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers, and has, in some instances, given birth to the enormous doctrine of a right of legislative repeal. Owing its ratification to the law of a State, it has been contended that the same authority might repeal the law by which it was ratified. However gross a heresy it may be to maintain that a party to a compact has a right to revoke that compact, the doctrine itself has had respectable advocates. The possibility of a question of this nature proves the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority. The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority. (Federalist 22)

In that sense, the very nature of state office does not in principle provide that it lies "under" the U.S. Constitution in the sense that it _derives_its_very_source_ from it (as do federal offices), and it would be possible for a state official in his "official" capacity to have to defy a federal mandate that attempted to abrogated state powers, thus providing the very "case" that forced the country to look at and decide to restrain the federal branch that erred.

State constitutions and thus state officials do indeed derive their authority directly from the people in each state (and not the U.S. Constitution), but state officials are also obligated to the U.S. Constitution (under article VI). State officials therefore serve two separate masters, but I've been contending that the federal master trumps the individual state master when the two are in conflict.

Moreover, I take it to be highly significant that, though revolution is also extra-constitutional (obviously) it is the _only_ extra-constitutional option that you, Perseus, previously allowed to be "proper." Why is that?

If a state makes an attempt at nullification, then it will likely have to confront federal officials. It may decide to back down or it may escalate to full armed conflict. Either way, it's a form of rebellion. Why is that? I've pointed out ad nauseam why an individual state lacks such a legal authority, which I've supported with statements by various Framers. Now if you want to defend the Lost Cause, be my guest, but it's simply not defensible under the Framers' Constitution.

Here we see a difference between an originalist, like myself, and a true legal positivist, which originalists are sometimes falsely accused of being. The question is one of interpretation and evidence regarding it! It adds an element to the self-evident bogusness of a judicial "interpretation" for that "interpretation" to declare that state laws which have peacefully co-existed with X portion of the Constitution for a hundred years and more are now incompatible with it.

I don't think that either Justice Thomas or Justice Scalia would quite agree with you. In that very exchange you cite between Justice Scalia and Ted Olson, Olson asked about anti-miscegenation laws, and Justice Scalia replied that they became unconstitutional when the 14th amendment was ratified. The clear implication is the fact that anti-miscegenation laws had been on the books in a large majority of the states until the 1950s was immaterial in determining whether the Court had the power and obligation to strike them down under the 14A.

I see a common theme here running throughout the thread. We're all talking about "the founders" as one body. What did "the founders" want? What did "the founders" intend? And then there's more of an emphasis on Madison, as if he's the "main" founder.

There was no consensus among the founders on how to interpret the Constitution, and I think there's more to Jefferson's idea of nullification than I did originally. The problem comes from when we have 51 different interpretations of a law. I'm not sure what can be done to fix that.

In order to make this real instead of merely words on paper, though, this implies that at times each of the branches actually can and would carry out a refusal to comply with another branch, when push comes to shove and it's really important.

In an ideal republic, the US Congress should be playing a much more active and decisive role in national disputes. Because of its unprecedented levels of caving to executive authority and blind partisan dysfunction, Congress has effectively abandoned its Constitutional role.

Furthermore, a little note about federal supremacy from Justice Rehnquist in Hodel v. Virginia Surface Mining:
It is illuminating for purposes of reflection, if not for argument, to note that one of the greatest "fictions" of our federal system is that the Congress exercises only those powers delegated to it, while the remainder are reserved to the States or to the people. The manner in which this Court has construed the Commerce Clause amply illustrates the extent of this fiction. Although it is clear that the people, through the States, delegated authority to Congress to "regulate Commerce. . . among the several States," U. S. Const., Art. I, 308*308 § 8, cl. 3, one could easily get the sense from this Court's opinions that the federal system exists only at the sufferance of Congress.
(...various types of qualification and defining commerce in terms of degrees of national impact...)
Thus it would be a mistake to conclude that Congress' power to regulate pursuant to the Commerce Clause is unlimited. Some activities may be so private or local in nature that they simply may not be in commerce. Nor is it sufficient that the person or activity reached have some nexus with interstate commerce. Our cases have consistently held that the regulated activity must have a substantial effect on interstate commerce. E. g., NLRB v. Jones & Laughlin Steel Corp., 301 U. S., at 37 (local activities may be regulated if they have a "close and substantial relation to interstate commerce"). Moreover, simply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so. Congress' findings must be supported by a "rational basis" and are reviewable by the courts. Cf. Perez v. United States, 402 U. S., at 157 (STEWART, J., dissenting).[**] In short, unlike the reserved police powers of the States, which are plenary unless challenged as violating some specific provision of the Constitution, the connection with interstate commerce is itself a jurisdictional prerequisite for any substantive legislation by Congress under the Commerce Clause.

If a state makes an attempt at nullification, then it will likely have to confront federal officials. It may decide to back down or it may escalate to full armed conflict. Either way, it's a form of rebellion.

Perseus, you surprise me, actually. You really do. You could have started out this entire discussion by saying, "The state legislatures can go ahead and do what you are suggesting, but if they do, I would call that rebellion, even if they back down. All I have to say is that they should be prepared to take the consequences that come." Then the whole issue would have been the rather more esoteric one of terminology and whether something is provided for in the Constitution.

But you didn't do that. Instead, you *quite clearly* characterized revolution as one of the only "proper" responses, and the only "proper" response among those you deem extra-constitutional, clearly _contrasting_ it with what I have been arguing North Dakota should go on doing, following upon its passage of this law. Moreover, you expressly said "take exception to the idea that North Dakota should attempt to enforce such a law." That isn't just, "Hey, shrug, they can go ahead and do it, but I'm going to take a stand and argue that we should call doing so 'extra-constitutional' and 'a form of rebellion,' and there may be bad consequences to state officials who do so." As if any intelligent person _wouldn't_ know that there might be negative consequences! I mean, you could have read all of us _discussing_ the fact that they "might have to confront federal officials." That's not news to anybody!

You used moral and ethical terminology from the beginning--terms like "proper" and "should." And you clearly did _not_ simply decide to dub what we were talking about as falling under the category of "revolution," because that was one of the actions, ironically enough for such a law-and-order guy, you dubbed "proper"!

No, instead, you tried to rule out the attempt to enforce state laws in such a circumstance *altogether*. You attempted to present a Perseus-made dilemma to all state officials: "Either you must keep on submitting yourself to the requirement for federal permission of some kind to enforce your normal laws against murder (or whatever) or start a bona fide, undeniable, revolution." You were _specifically_ trying to rule out the existence of any morally permissible space for more conservative immediate moves.

Now, when I point this out, you try to act like what you've been saying all along is _merely_ that the moves we were suggesting are "extra-constitutional" and, in your opinion, functionally rebellious even if not followed through on. But that is _not_ all that you have been saying. Not by any means.

I reject that (confederate) view. First, the Union created the states, not vice-versa. The Union arguably began as early as the Articles of Association. With the Declaration, the Continental Congress acted in the name of one people and transformed thirteen "United Colonies" into thirteen "free and independent States" as part of the United States.

I am not a confederate, so I reject the term in relation to my thesis.

It is a matter of blatant historical fact that the individual colonies had governments prior to the Congresses of 1774 and 1775. Those governments had the deliberative and executive capacity to enter into acts such as the Congress itself, or to choose not to do so thus establishing prior existence and prior right of governing. To claim that they are in reality (de facto) creatures of a later governing entity is just sheer imagination, really poor historical imagination at that. The Articles of Association (in addition to being limited to the boycott issues alone and therefore not a claim to a government) could not have "created" the existing state legislatures and governors nor supplant them with new overlays in any sense, for crying out loud, that's just goofy.

There could be a logical possibility that the states became, later, LEGALLY speaking (de jure) creatures of a later governing body, but I will show that didn't happen. The two congresses that met were NOT a government properly, and they had only such powers as arose _by_reason_of the powers of the colonies themselves, but not many of those powers, they never thought they had exercise of the general duties of governance. There was no entity that claimed itself to be in any sense a governing body of "these united states" until the Articles of Confederation in 1781.

Even after the Constitution was ratified and in force (had achieved 9 states' consent), there were some states that had not consented. There was no absolute presumption that they (a) must perforce agree to the so-constituted union, or (b) that they were de jure "under" that federal government before they consented to it. New York's consent to the order so constituted was a free act of an already existing political entity that could have chosen otherwise.

The first real test for ratification occurred in Massachusetts, where the fully recorded debates reveal that the recommendation for a bill of rights proved to be a remedy for the logjam in the ratifying convention. New Hampshire became the ninth state to approve the Constitution in June, but the key States of Virginia and New York were locked in bitter debates. Their failure to ratify would reduce the new union by two large, populated, wealthy states, and would geographically splinter it. The Federalists prevailed, however, and Virginia and New York narrowly approved the Constitution. When a bill of rights was proposed in Congress in 1789, North Carolina ratified the Constitution. Finally, Rhode Island, which had rejected the Constitution in March 1788 by popular referendum, called a ratifying convention in 1790 as specified by the Constitutional Convention. Faced with threatened treatment as a foreign government, it ratified the Constitution by the narrowest margin (two votes) on May 29, 1790. [my emphasis]

Nobody in 1789 thought that the separate states were political creatures created by the congresses of 1774 and 1775 or by the Articles of Confederation. Everybody thought that each and every separate former colony was a long-standing political entity in its own right, with a history, a deliberative and executive governing capacity that had long been exercised and continued to do so throughout the war and the ensuing 6 year Articles period. They were polities with independent political authority. That's the de facto reality.

As to a theoretically possible thought that the states are (or were) _de_jure_ dependencies that arise from the Federal Union, that too just fails upon consideration. The first reason is that the very nature of the Union's constituted order is designed as receiving limited powers, not originating them for others. The whole debate about the bill of rights was about whether the amendments were needed or whether they were imprudent irrelevancies because the federal government didn't have and never was considered to have plenary powers, only enumerated powers. Secondly, the 10th amendment CONFIRMS the already accepted position, stated uniformly in the Federalist and repeated ad nauseum in the constitutional debates in state houses. Plenary government power rests in the state houses, not in the federal. Thirdly, the states can by an amendment either add to the federal government's powers, or take away its powers, thus implying that those powers come arise from the states themselves or the people as origin, and do NOT flow to the states from the federal. Nowhere does the Constitution provide that the federal government has the juridical right to remove a state's powers and place them instead with the federal.

So, no: historically, the states are antecedent entities and the federal powers were earlier (in time) powers of the states that were ceded to the federal authority. Logically, the states do not depend on the federal for their powers, whereas the federal authority cannot operate as a whole entity on only the enumerated powers, it depends on states to supply the "rest" of governance.

The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.

Even if we take this at face value, it says nothing to dispute what I said above: having the federal powers come from the people directly (rather than delegated from the states) does not preclude the states being logically prior entities to the federal. It is perfectly consistent with Publius here to accept BOTH that ideally the federal powers come from the people directly, that state powers come from the people directly, AND that the state is prior logically. Stepping away from this hopeful expression of an ideal, yes the original Constitution would be voted on by individual "conventions" of the states, i.e. "the people" (which is itself an idiosyncratic idealization, given that a state convention is never "the people" but a select group thereof, and the Rhode Island state referendum wasn't considered "the people" but the state convention was), but later amendments would always be voted on by the state governments themselves. In design, the grant of new powers to the federal authority would come FROM THE STATES, just like the original powers which first existed in the states and then passed from the states to the federal.

The states are logically prior to the federal authority. This is definitely NOT the same as saying that a state could retrieve it's individual "grant" of power to the federal any time it wanted and walk away, nothing of the sort. That's a different question, with different issues involved.

But you didn't do that. Instead, you *quite clearly* characterized revolution as one of the only "proper" responses, and the only "proper" response among those you deem extra-constitutional, clearly _contrasting_ it with what I have been arguing North Dakota should go on doing, following upon its passage of this law.

What I have been saying is that you aren't interested in challenging a Court decision in the usual manner by trying to "discover the boundaries" of Roe, hoping that perhaps the Court may even reverse its position. Instead, you advocate the enormous doctrine of a right of legislative repeal, urge "more such defiant acts" by individual states, and seem unfazed about the prospect of confrontation between federal and state enforcement officials. In my book, what you're advocating is a revolutionary doctrine and actions (even if it's not full blown hot war) that would fundamentally change the national compact. I find your position intolerable and would hope that the federal government did too.

It is a matter of blatant historical fact that the individual colonies had governments prior to the Congresses of 1774 and 1775. Those governments had the deliberative and executive capacity to enter into acts such as the Congress itself, or to choose not to do so thus establishing prior existence and prior right of governing. To claim that they are in reality (de facto) creatures of a later governing entity is just sheer imagination, really poor historical imagination at that.

Allow me to clarify. The colonies undoubtedly had governing bodies and the powers, but as the British Crown held the "federative" (to use Locke's term) and most executive power, they were not independent states. So how were they transformed from colonies into independent states? That was not accomplished by each individual colony but by the colonies collectively. The "united colonies" formed one people for the purposes of creating the Union, which declared independence from Great Britain. The Union didn't create the 13 states de novo but it was responsible for transforming them into independent states. In other words, there was a form of dual sovereignty in which the 13 colonies united into one people in order to transfer the federative power from the Crown to the Union while reserving the "internal concerns of each Colony, be left to the respective Colonial Legislatures" (Resolution of the Virginia Convention, May 15, 1776). And because none of the original 13 states ever possessed federative power individually, none could truly be regarded as having been a fully independent sovereign state.

It is perfectly consistent with Publius here to accept BOTH that ideally the federal powers come from the people directly, that state powers come from the people directly, AND that the state is prior logically. Stepping away from this hopeful expression of an ideal, yes the original Constitution would be voted on by individual "conventions" of the states, i.e. "the people" (which is itself an idiosyncratic idealization, given that a state convention is never "the people" but a select group thereof, and the Rhode Island state referendum wasn't considered "the people" but the state convention was), but later amendments would always be voted on by the state governments themselves. In design, the grant of new powers to the federal authority would come FROM THE STATES, just like the original powers which first existed in the states and then passed from the states to the federal.

That seems like a bit of a revision of your initial claim that "the federal union arises by reason of the states granting LIMITED powers to it." In my view, it is more accurate to say that in 1789 the people--not the states--reallocated certain powers from the states to the federal government in our dual sovereignty (or dual federalism) scheme.

it is more accurate to say that in 1789 the people--not the states--reallocated certain powers from the states to the federal government in our dual sovereignty (or dual federalism) scheme.

I am saying that even if you try to refer the 1789 choice to "the people" instead of the states, that itself cannot be characterized as simply the people, without reference to the state polities. For 2 reasons. First, it wasn't a referendum of the whole 3 million people amorphously gathered, with a 3/4 majority of the entire 3 million. It was a choice of the people of 3/4 of the states: the people OF A STATE gathered into an active unit to state their preference, and thus it was an expression of the state polity itself, and the necessary majority was a majority of states not of people.

Secondly, when the people "gathered" into state conventions to do the deciding, this was an active subset of "the people" rather than simply a referendum of the whole voting people of the state. As an active subset thereof, it was entrusted with a specific "power" of decision, a power belonging to government in principle. The correct characterization, then, is that when the state government "called" a convention, that state government was arranging for a distinct power of government to rest in a the hands of a new subset of the people distinct from themselves: they were dividing the powers naturally sitting in the hands of "the government" into 2 distinct groups of governing bodies, one being the regular state government that continued with plenary powers, the other being constituted with a limited role (power) of deciding on whether to align the state with (and enter into) the federal Union. The decision thus made was at one and the same time a decision "of the people" and a decision "of the state" as a polity, it was not a decision without reference to the state polity.

Take a look at the achievement of the Constitution as a process: the Convention's final actions were voted on by STATE votes, not by a simple majority of total delegates. The Convention ended up with a document that said it would be ratified by the states "conventions". So the 13 states' governments called for ratifying conventions - acts of the STATES. The deciding state convention vote was a majority of the representatives sent to the state convention, not a majority of the people of the state. The deciding FEDERAL factor was a 3/4 majority of the states, not of the people.

I am fine with saying that the decision was a decision of the people. I just think you have to qualify that so heavily that you cannot thus avoid it ALSO being a decision of state polities.

Perseus, it is a matter for head-shaking to me that you should so passionately swear that what I've said involves fundamentally changing the country while what you are really defending is the quodlibetal power of the federal government to fundamentally change the country in any way it pleases.

I do, in fact, believe that your rhetoric and argument have shifted here, and I've pointed out how, but you won't acknowledge it, so whatever. I haven't time to keep pressing the point.

At least liberals are passionate for their causes. You are apparently literally just passionate for the right of the federal government--which, whether you admit it or not, given the regnant approach of the judiciary, amounts to the right of the federal judiciary--to do anything it darned well pleases. Yet you have the gall to imply that it is opposition to this revolutionary power that is revolutionary.

Tony put something well above, which I haven't yet had time to highlight:

if those [amendment and revolution] are the only two mechanisms then the states WERE in effect signing a blank check to the federal government when they handed it supposedly enumerated powers only, they failed to limit the powers, and they were instead constructing a purely and absolutely "national" entity even though they expressly claimed otherwise.

Bingo. I couldn't have put it better. It's an interesting question whether Madison would have ever reconsidered, could he have seen what has happened since then, his later comments in the 1830's, and how the question of proper response to federal overreach (especially judicial overreach, which wasn't at that time an issue, and which isn't directly soluble by elections) interacts with the point Tony is making. It was _absolutely explicit_ from the Founders, including Madison very notably, that the powers of the federal government were not quodlibetal and that _most things_ were to be left to the governments of the individual states. Your argument here has more or less amounted to some kind of weird backwards argument that they somehow accidentally gave the federal government quodlibetal powers within the Constitution without realizing it! Despite the fact that, for example, the 10th amendment _expressly_ refers to the states qua states. I'm sorry, but that's simply silly. And it's especially silly that someone should spend so much time defending the result of such an "accident," apparently as a good in itself.

I find your position not only wrong-headed historically but also strangely impoverished.

Two more points: I'm quite willing to say that Scalia is simply wrong concerning the unconstitutionality of anti-miscegenation laws, though of course I regard such laws as immoral. However, you are wrong to say that his comment makes it _immaterial_ how long laws have been on the books. The argument from longevity is something originalists make all the time, and while I don't have chapter and verse to hand for Scalia's doing so (though I seem to recall hearing him do so in a speech I attended), I'd be astonished if he never did. His position regarding anti-miscegenation laws must therefore be that there are other arguments which, in his view, override that one for believing that such laws became unconstitutional with the passage of the 14th amendment. Not that such arguments are immaterial.

Second, as I seemed to recall but have just checked, the Hamdan case, which you brought up, strongly confirms my suspicions that the Court would ignore attempts by Congress to limit its jurisdiction if it wanted to have power over that area of law. No doubt you will disagree, but I think the indications are _quite_ clear. But perhaps the Perseus School of Scolding States would allow them to go ahead with enforcing their abortion laws once Congress had made the _attempt_ and the federal judiciary had thumbed its nose. You've never answered that question.

My guess is someone (abortion provider, most likely) will bring a declaratory judgment action to have it declared unconstitutional prior to performing any actual abortion that would violate the law, and then ask for a temp injunction to allow him to continue doing his dastardly work until it is settled (otherwise, the "unwanted pregnancies" will continue while depriving pregnant women of their "rights").

I am not a confederate, so I reject the term in relation to my thesis.

You don't have to be one to be called one, although you do share their political doctrine of nullification. You don't really believe for one millisecond that you will have control over the national dialogue after declaring your defiance of the national government do you? Why not expect unicorns and leprechaun gold while you're imagining this fantasy world?

In the immortal feisty rhetoric of Andrew Jackson during the buildup to the Nullification Crisis, "Please give my compliments to my friends in your State and say to them, that if a single drop of blood shall be shed there in opposition to the laws of the United States, I will hang the first man I can lay my hand on engaged in such treasonable conduct, upon the first tree I can reach."

It was _absolutely explicit_ from the Founders, including Madison very notably, that the powers of the federal government were not quodlibetal and that _most things_ were to be left to the governments of the individual states. Your argument here has more or less amounted to some kind of weird backwards argument that they somehow accidentally gave the federal government quodlibetal powers within the Constitution without realizing it!

My argument is that the states have very few formal mechanisms under the U.S. Constitution to check the federal government. In other words, the formal checks on the federal government are mainly what Publius referred to as "parchment barriers against the encroaching spirit of power." And just as those parchment barriers in the states proved inadequate to restrain overbearing state legislatures and to protect individual rights, so the parchment barriers in the U.S. Constitution (e.g., the 10A ) have proven inadequate to protect the states against encroachments by the federal government (and the states have been further weakened by, for example, the direct election of senators). The debate over the constitutionality of the national bank was the first and very early indicator that Madison did indeed fail to foresee the possibility of strong differences over the proper scope of federal power and provide the states with more formal checks on the federal government. Thus for all of the sound and fury of the Virginia Resolutions, Madison's lack of foresight would force him to make the pathetic admission in the Report of 1800: "The declarations in such cases are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection ... [and] may lead to a change in the legislative expression of the general will." The checks by the states on the federal government would therefore have to be extra-constitutional acts of resistance--from nullification to trial of force--originating in the right of revolution. This amounts to re-asserting the executive power of the law of nature and dissolving government (at least partially or temporarily). As acts originating in the right of revolution, they would have to be guided by "prudence." I do not regard what is being recommended as a prudent exercise of that right and therefore think that the federal government should aggressively thwart such acts of revolutionary resistance.

Considering that this is about the most conservative imaginable exercise of any sort of "right of revolution" (which is not _my_ claim of its authority but is where you choose to classify it), it follows that anything else in that vein would be _more_ imprudent and hence that, as I said before, your pushing on the word and on the concept "revolution" is an attempt to shut down discussion on all attempts at even non-violent resistance (to the wildest acts of usurpation and revolutionary regime change by the federal government) by the states qua states as being beyond the pale.

In the immortal feisty rhetoric of Andrew Jackson during the buildup to the Nullification Crisis, "Please give my compliments to my friends in your State and say to them, that if a single drop of blood shall be shed there in opposition to the laws of the United States, I will hang the first man I can lay my hand on engaged in such treasonable conduct, upon the first tree I can reach."
Jackson was indeed a character, huh?

The question is, what checks are there on the federal government by the states? And if there aren't any real checks, then the Confederacy might have had a point.

My argument is that the states have very few formal mechanisms under the U.S. Constitution to check the federal government. In other words, the formal checks on the federal government are mainly what Publius referred to as "parchment barriers against the encroaching spirit of power." And just as those parchment barriers in the states proved inadequate to restrain overbearing state legislatures and to protect individual rights, so the parchment barriers in the U.S. Constitution (e.g., the 10A ) have proven inadequate to protect the states against encroachments by the federal government

Except for force of arms, ALL other forms of restraint are "parchment barriers". The issue is which words on paper people choose to follow. I think that what your words here amount to is that the forms and mechanisms in place in the Constitution to allow for and respect states' powers proved not to be successful because people chose to not give them adequate expression in concrete fact, not because the mechanisms aren't actually there. There are words on the paper, it is us to MAKE those words effective by insisting that people pay attention to them and live by them. When enough people insist, then the mechanisms ARE effective. That's just exactly what makes a judicial decision effective, or a Congressional law.

So, the non-revolutionary way of RESTORING the effect of the 10th amendment is to use it and then have enough people speak out and insist that everyone else "give effect" to those words. That's just employing the Constitution the normal way. It's exactly the same conceptual process as was used to "establish" other interpretive standards that came to be historically.

My oft stated preference for the prudent way to carry that out is to garner a majority of states declaring that the federal act X exceeded federal powers. This method avoids the clear problem that attended the Virginia Resolution attempt. But I am willing to accept that the process of garnering a majority of states may be a bit messier than a vote in Congress, and (since the 10th amendment didn't spell out a concrete method) that starting with one or a handful of states may be conscionable in some circumstances.

MarcAnthony, one of the checks is, obviously, the amendment process. The main one, though, in the minds of the original founders was that Congress and the President had to submit to vote every few years. But that latter one isn't one that by design is likely to restrain a (bare) majority from allowing and encouraging the federal government to continue to accrue un-enumerated powers without basis, if they like such powers resting in federal hands instead of the states. Madison thought that opposing factions would be sufficient to do that, but he failed to realize that we would get a 2-party system, and that a 2-party system would unravel his theory of factions restraining each other - that requires many competing factions.

The main one, though, in the minds of the original founders was that Congress and the President had to submit to vote every few years.

Hence, the diabolical effectiveness of seizing control of the judiciary, since they do not have to submit to a vote every few years. Get 5 out of 9 revolutionaries in the judiciary, add in a few good shakes of stare decisis, make everybody think that "the rule of law" means "the Constitution means whatever the Court says it means," and you're good to go with a top-down revolution that will never be undone and is not subject to checks and balances.

Considering that this is about the most conservative imaginable exercise of any sort of "right of revolution" (which is not _my_ claim of its authority but is where you choose to classify it)

That's how even Jefferson classified it in the Kentucky Resolutions: "the co-States, recurring to their natural right in cases not made federal, will concur in declaring these acts void, and of no force." Nullification would be an exercise of the natural right of revolution (aka as a recurrence to first principles), which is not a constitutional right (unlike Calhoun and his confederates who claimed that nullification is a constitutional right). And it's not very conservative in my book to advocate that this form of resistance be conducted by individual states rather than by the states collectively.

I am fine with saying that the decision was a decision of the people. I just think you have to qualify that so heavily that you cannot thus avoid it ALSO being a decision of state polities.

That's more or less the Madisonian view and a eminently respectable one. The Hamiltonian view would emphasize the constitutional conventions as bodies distinct from the state governments and that the states were more convenient mechanisms for organizing ratification than integral partners in the exercise of popular sovereignty.

Except for force of arms, ALL other forms of restraint are "parchment barriers". The issue is which words on paper people choose to follow. I think that what your words here amount to is that the forms and mechanisms in place in the Constitution to allow for and respect states' powers proved not to be successful because people chose to not give them adequate expression in concrete fact, not because the mechanisms aren't actually there. There are words on the paper, it is us to MAKE those words effective by insisting that people pay attention to them and live by them. When enough people insist, then the mechanisms ARE effective. That's just exactly what makes a judicial decision effective, or a Congressional law.

That may be true in the extreme, but Madison's view (which I share) is that parchment barriers (i.e. exhortations to do or not to do certain things) are different from the "constitutional rights of the place" (e.g., taxing/spending, determining court jurisdiction, veto, appointments, etc.). The problem is that in the process of "ambition counteracting ambition" in resisting encroachments by the federal government, the states have relatively few "constitutional rights of the place."

My oft stated preference for the prudent way to carry that out is to garner a majority of states declaring that the federal act X exceeded federal powers.

That would be creating a new "constitutional right of the place" for states. As I said, if that new constitutional right is not the result of the formal amendment process, then it would be a product of a recurrence to first principles (like the Constitutional Convention lowering the threshold for ratification to 9 states), and so it might be difficult to confer legitimacy on it. I wouldn't like to see a simple majority of states being allowed to veto a federal act, but it would be far less radical than nullification by an individual state.

You don't have to be one to be called one, although you do share their political doctrine of nullification. You don't really believe for one millisecond that you will have control over the national dialogue after declaring your defiance of the national government do you? Why not expect unicorns and leprechaun gold while you're imagining this fantasy world?

Step2, I take the term "confederate" to mean something different from adhering to a concept of nullification. (And anyway I don't actually propose that a single state alone exercises a nullification power acting on its own, I think it takes many states.) I consider "confederate" as referring to a concept that the decision of a state to join the Union as a member was that of a readily reversible decision, as of (say, Poland's decision to join NATO), because the type of joining that took place was strictly a de jure matter comparable to an (admittedly extensive) treaty. I don't think that, so I don't call myself a confederate, and I don't think others should either.

Historically, too, the confederate point of view relied more heavily on things said about the Constitution - including things said at the time of the designing and ratification - than about articles and provisions OF the Constitution. My point above is mostly about the meaning and application of a specific provision of it, the 10th Amendment. If the Confederate South had restricted themselves to postulating (and attempting) methods consistent with the 10th amendment and other provisions, we would never have had the Civil War, which war I always consider a grave mistake on the part of the South (more so than on the part of the Union, that is).

The main one, though, in the minds of the original founders was that Congress and the President had to submit to vote every few years. But that latter one isn't one that by design is likely to restrain a (bare) majority from allowing and encouraging the federal government to continue to accrue un-enumerated powers without basis, if they like such powers resting in federal hands instead of the states. Madison thought that opposing factions would be sufficient to do that, but he failed to realize that we would get a 2-party system, and that a 2-party system would unravel his theory of factions restraining each other - that requires many competing factions.

I have nothing to add to this. I completely agree.

But perhaps the Perseus School of Scolding States would allow them to go ahead with enforcing their abortion laws once Congress had made the _attempt_ and the federal judiciary had thumbed its nose. You've never answered that question.

The Perseus School of Scolding States would say that if such an attempt were made and the federal judiciary thumbed its nose, Congress and the president would escape a Major Scolding if they replied: "Piffle. The Court has made its decision; now let the Court enforce it." Unlike an individual state, Congress and the president are co-equal branches of the federal government under the U.S. Constitution and therefore have much greater latitude to engage in such constitutional brinksmanship. I would not, however, want it to become standard operating procedure to try to overturn a slew of court decisions (though various institutional factors are likely to continue to prevent that from happening).

Nullification would be an exercise of the natural right of revolution (aka as a recurrence to first principles), which is not a constitutional right

In a very limited sense, but not in a practical sense. The nullifying state is not breaking with the federal government generally, but doggedly asserting that the federal government is acting outside of its jurisdiction thus creating no binding legal authority upon it.

But then this whole argument comes down to procedure versus principles, which goes to show that political scientists really just are little more than intellectual bureaucrats.

Hence, the diabolical effectiveness of seizing control of the judiciary, since they do not have to submit to a vote every few years. Get 5 out of 9 revolutionaries in the judiciary, add in a few good shakes of stare decisis, make everybody think that "the rule of law" means "the Constitution means whatever the Court says it means," and you're good to go with a top-down revolution that will never be undone and is not subject to checks and balances.

Which is ironic since the US Constitution doesn't lay out any arbiter of constitutionality. The best Perseus can do is cite the opinions of some founders and try to bait-and-switch from what they intended to what they actually wrote. Their intentions are largely meaningless in the same sense that a presidential signing statement is meaningless (or ought to be) to a court. The fact is that the US Constitution has no enforcement mechanism for constitutionality. In fact, the US Constitution is a rather defective document in a number of areas because of the ambiguity it has in some key areas like the interstate commerce and general welfare clauses. Our founders, most of whom were trained in the law, should have foreseen how lawyers could take those as loopholes and run with them. Same thing with their rhetorical flourish at the start of the second amendment.

Perseus, if the President and Congress said, "Piffle," the whole point of said "Piffle" would be to give a green light to states to go ahead and write and enforce their abortion laws without federal judicial review. It cannot have escaped your noticed that the large majority of abortion laws struck down by Roe and kept out of circulation by Roe are state laws--as this law in North Dakota.

So I ask you again: If Congress tried to limit federal judicial review and the federal judges insisted on taking the cases anyway, would you support the states' continued application of the laws?


For example, would you then support my idea that the President should order the federal marshals not to enforce any court orders pursuant to federal court cases on abortion?

If not, it is difficult to see why you even bring up the "Congress limiting jurisdiction" idea, since this has always been almost entirely about SCOTUS and lower federal courts striking down _state_ laws.

For that matter, since you have all along insisted that it is the other federal branches that are the only proper check and balance on the judicial branch, why couldn't a pro-life President do this ab initio, even before Congress votes to limit jurisdiction? It would seem, come to think of it, that that ought to meet your requirement for using one of the other branches at the federal level to answer judicial overreach. In which case, the state, having been told ahead of time that the President was not going to allow such court orders to be enforced, would know that its action in enforcing its law would not be regarded and treated as rebellious against the federal government.

If Congress tried to limit federal judicial review and the federal judges insisted on taking the cases anyway, would you support the states' continued application of the laws? For example, would you then support my idea that the President should order the federal marshals not to enforce any court orders pursuant to federal court cases on abortion?

That's what I meant by Congress and the president saying "Piffle" to the Court if it tried to insist on retaining jurisdiction in the face a clear law passed by Congress stripping the federal judiciary of jurisdiction: Congress and the president would then co-operate in allowing the states to legislate as they please by ignoring subsequent federal court rulings on the subject. It would, however, be a far more dubious proposition for the president to do such a thing on his own. Given judicial "supremacy...concerning the boundary of Jurisdiction between the U. S. & individual States," I believe that the federal judiciary should enjoy a strong presumption in its favor in this area just like Congress should enjoy a strong presumption in its favor when taxing/spending, etc. So the president would be undertaking an extraordinary course of action in the face of longstanding legal precedent, a lack of formal support from Congress (the branch possessing the power over jurisdiction), and no vital presidential power at stake (when Jackson reputedly made his famous response to Marshall's decision, the Court was treading in the area of treaties with implications for the scope of presidential power). That's not sufficient to overcome my presumption in favor of the federal judiciary.

I don't think that, so I don't call myself a confederate, and I don't think others should either.

Again, this is explicitly not about what you think of yourself. This is about the consequence of making rebellious threats and the fact that truth, especially complicated truth, is often the first casualty of war. Making a "shot across the bow" is at minimum a formal announcement of hostility.

Obviously you have the right to declare your allegiance to nullification, but I refuse to allow that it be limited only to laws or judicial decisions you find unjust. What makes conservative enclaves more entitled to nullification from federal tyranny? Your nullification "power" is a wrecking ball of disunion that would destroy the federal government and conceivably state governments.

Finally, someone on this thread rambling on about armed conflict with federal officers is not improving your optics.

I wasn't disputing that my thesis here runs as a kind of opposition to certain federal actions, I was disputing whether the correct terminology for that opposition is that of a "confederate." You're rambling about opposition to the federal claimed powers as if all opposition falls into the category of the "confederate". I don't think so, because I think confederate opposition to certain federal approaches was one specific form of opposition.

Again, this is explicitly not about what you think of yourself. This is about the consequence of making rebellious threats and the fact that truth, especially complicated truth, is often the first casualty of war. Making a "shot across the bow" is at minimum a formal announcement of hostility.

Oh, bulloney, Step2. When it comes to out-and-out violent war, the opposed sides will call each other whatever names they decide, and they won't much care at that point what the terms other side is using. Before that, it makes no sense to refuse to make valid points because of some inaccurate name-calling that will result if people do end up going to war. If you think that opposition to invalid federal acts by constitutional means constitutes "rebellion" then make the case. Otherwise, calling me a "confederate" as if that was congruent to "self-declared enemy" is just obfuscation on your part. Enough with the name calling, and make substantive points.

Obviously you have the right to declare your allegiance to nullification, but I refuse to allow that it be limited only to laws or judicial decisions you find unjust.

Well, that isn't what I said, so you are are fighting a straw man. I too don't think that the nullification comes in for "laws or judicial decisions you find unjust", as I have said repeatedly. It comes in under the correct application of the 10th amendment, when the federal government mistakenly arrogates to itself a power that is properly a state power, and (in the ideal form) that invalid act is explicitly repudiated by a majority of states as being extra-constitutional. If you can do the same for liberal causes that are examples of the federal government pretending to powers that it doesn't have, BY ALL MEANS, EMPLOY THIS METHOD TO OPPOSE IT, with my blessing. I heartily approve. I will sit back and enjoy the show.

Your nullification "power" is a wrecking ball of disunion that would destroy the federal government and conceivably state governments.

Even more, your nullification of the 10th amendment and its attendant principles is a wrecking ball for federalism that has already more than half destroyed states and their governments, and will conceivably destroy either the democracy or republicanism.

It really amazes me to see people getting even moderately het up, much less this het up, over the suggestion that a state imprison abortionists. And why? Because the Almighty SCOTUS told a whopping lie back in 1973 that such laws are unconstitutional, and by golly, the country is going to come to an end if everybody doesn't act in precise accordance with whatever utter nonsense (to use only polite terms) the SCOTUS wishes to tell us is mysteriously contained within the Constitution. In point of fact, such slavish conformity to the jaw-dropping, insouciant subversion of our constitutional republic meted out by SCOTUS has already made our country pretty much unrecognizable even compared to what it was in 1972. But that fact is of no interest to such people. We're the ones with the truly dangerous ideas. Really, one probably ought just to conclude that there is no further point in trying to find common ground.

That may be true in the extreme, but Madison's view (which I share) is that parchment barriers (i.e. exhortations to do or not to do certain things) are different from the "constitutional rights of the place" (e.g., taxing/spending, determining court jurisdiction, veto, appointments, etc.). The problem is that in the process of "ambition counteracting ambition" in resisting encroachments by the federal government, the states have relatively few "constitutional rights of the place."

Perseus, I don't understand the meaning of the expression "constitutional rights of the place" in this usage. As far as I can see, all of the powers exercised by the federal government at the start, including establishing excises, forming a new money, giving patents, securing borders, were all written out in the parchment of the Constitution. Without them being there, they weren't powers of the federal authority.

More basically, the theoretical "state" (defined as the sovereign political entity, properly the political entity which is a "complete" polity) normally has a government which has plenary powers. This state would, perforce, hold all of the powers that would be included in any written constitution of that state, but it wouldn't hold them solely on account of the written constitution, not necessarily (lots of states never had a written constitution). And so it would potentially hold powers not actually written into the constitution, too. Conceptually, a true state could hold unstated powers in potentia that nobody actually recognizes yet, because the circumstances have not yet come about in which that power makes any sense. The list of powers of a true state don't come into being simply by reason of being written on parchment. That's what plenary powers implies. But in order to become effective in actual operation, the power has to be expressed with a stated rule in public form: a written law, i.e. words on parchment. Until that happens, the power remains a potency rather than actualized. These words on parchment are directives to the people, and directives to officials to demand of the people. I don't care whether you call that "exhortations" or not, the point is that they are not operative until they are promulgated as written law.

But none of that plenary aspect above serves for our current federal government. This federal constitutional order ("a" government) came to be by and with a formal document, and it only has the powers either provided by means of that document explicitly, or implicitly as being necessary accoutrements of the explicitly enumerated powers. They come to be by parchment. So any federal law, ruling or decision is, itself, an operation pursuant to "words on parchment" which is itself more words on parchment. They only carry weight because many, many people decide to put them into practice. That's what civil government consists in - people choosing to follow words of written law.

Given judicial "supremacy...concerning the boundary of Jurisdiction between the U. S. & individual States," I believe that the federal judiciary should enjoy a strong presumption in its favor in this area just like Congress should enjoy a strong presumption in its favor when taxing/spending, etc. So the president would be undertaking an extraordinary course of action in the face of longstanding legal precedent, a lack of formal support from Congress (the branch possessing the power over jurisdiction), and no vital presidential power at stake (when Jackson reputedly made his famous response to Marshall's decision, the Court was treading in the area of treaties with implications for the scope of presidential power). That's not sufficient to overcome my presumption in favor of the federal judiciary.

At one time I too gave just as strong a presumption in favor of the federal adjudicative power for deciding the location of power in the boundaries of the 2 authorities. However, my thinking in doing so was definitely formed within an education tilted very heavily toward a certain biased view of the national government and the prevailing "RIGHT" Northern view in the Civil War. As I learned more history and read the Constitution more carefully, I see that bias for what it is, and I have taken a more cautious view of the presumptiveness of the federal in adjudicating about the boundary.

Let me make an analogy. We know that blacks ought to have equal civil rights to whites. No question...NOW. 80 years ago that wasn't equally "known", and there were plenty of laws precluding such equal rights. Part of the way we achieved the change, part of the motivation toward the Civil Rights Act and other legal reconsiderations, was civil disobedience by blacks and whites in protest of the laws. There is, normally, a presumption in favor of the existing law of the land, and both people and police and courts are supposed to give that presumptive rightness its full weight. Abnormally, though, in a few situations, the rightness of the "law" is so clearly off-base, so surely and certainly defective, that it fails of its presumptive claim to obedience, and we are justified in resisting the law, refusing to obey it. Such acts may appear to be rebellion, but I don't think Rosie Parks was a rebel, or a revolutionary, and indeed the change she helped along happened eventually with very few lost lives, nothing like the violence a true revolution evokes. It is better to say, instead, that she was disobeying a lower law while paying attention to a higher truth, a truth which put the lie to that lower law, and thus she was revealing to us the defects in the law.

I think that there is room for a little similar messiness in understanding the normal federal judicial presumption in adjudicating the boundaries of state and federal power. Sure, Madison points out the clear reason why normally the placement of that adjudication is at the federal level. But he leaves unstated the problem of the federal judiciary itself being the location of the boundary at issue, and leaves unstated the inadequate protections the other branches (even in the ideal form originally imagined) represent in such a case. When you have a concatenation of all these problems together (bad case law on a grave matter, like the Jim Crow laws), judicial encroachment, and federal legislative (and executive) enfeeblement, you present an abnormal situation and you shouldn't treat the state-level antipathy as "rebellion" so much as a "corrective".

Such acts may appear to be rebellion, but I don't think Rosie Parks was a rebel, or a revolutionary, and indeed the change she helped along happened eventually with very few lost lives, nothing like the violence a true revolution evokes.

And contra Perseus in this case, Parks and state officials like her are not in fact rebelling against the authorities above them generally but against a specific act of said authorities. A revolutionary by nature simply does not agree with the status quo while quibbling about specific details. He is intent upon simply throwing off said authority or destroying it so something new can replace it. So the exhortation to revolution is akin to telling a man that a punch in the face, if he must respond personally must necessarily be met with a gun shot to the head instead of a single punch.

Before that, it makes no sense to refuse to make valid points because of some inaccurate name-calling that will result if people do end up going to war.

Who said anything about refusing to make valid points? I'm merely pointing out that name-calling is part of the deal, that something that could escalate into war is naturally going to first lead to war rhetoric.

If you think that opposition to invalid federal acts by constitutional means constitutes "rebellion" then make the case.

In case Perseus wasn't abundantly clear, your proposal is not constitutional. In order for it to be so you would have to create a new amendment allowing for a majority veto by the states.

But I'll make a comparison anyway. Let's say a large number of states decide that the legal fiction of corporate personhood is obviously too insane to be continued any longer and that most of those corporate rights are simply legitimizing corruption. So as a "shot across the bow" they pass laws that will arrest any corporate directors or their agents who treat Citizens United as a valid guide for legal electioneering. Are those corporate directors detained by a rebellion or by lawful force?

Such acts may appear to be rebellion, but I don't think Rosie Parks was a rebel, or a revolutionary...

That's too bad, because she was.

Lydia,
I laughed. What do you do for an encore, play with matches and marvel that things are on fire?

Lydia: It really amazes me to see people getting even moderately het up, much less this het up, over the suggestion that a state imprison abortionists.

Nonchalance about constitutional formalities is the characteristic outlook of the zealot and the knave (the extremes meet). It's why Lincoln was subject to a torrent of abuse by radical abolitionists.

Tony: As far as I can see, all of the powers exercised by the federal government at the start, including establishing excises, forming a new money, giving patents, securing borders, were all written out in the parchment of the Constitution. Without them being there, they weren't powers of the federal authority.

"Parchments barriers" were discussed in the context of the separation of powers. Here's an example of one (from the 1776 VA Constitution): "The legislative and executive powers of the State should be separate and distinct from the judiciary..." Even if "should" had been replaced with "shall," it would not have been an effective means of keeping the branches separate and distinct. By specifying and arranging powers in particular manner (e.g., the legislature's power over the purse, the president's veto, and judicial review are not only powers but the latter 2 are also legislative powers designed to prevent Congress from dominating), the constitutional rights of the place are what maintain the balance between the branches. The 10A is a "parchment barrier" because it does not include any specific checking power. It serves as a reminder about delegated powers and an exhortation to the branches to use their actual checking powers to keep the federal government within its proper scope.

Sure, Madison points out the clear reason why normally the placement of that adjudication is at the federal level. But he leaves unstated the problem of the federal judiciary itself being the location of the boundary at issue, and leaves unstated the inadequate protections the other branches (even in the ideal form originally imagined) represent in such a case.

My sympathies lie more with Hamilton (the focus of my scholarly writing), but I see Madison as providing the most favorable case for the states under the Constitution. That Madison didn't anticipate the current state of affairs does nothing to gainsay that and thus I regard what is being suggested as a "corrective" to be extra-constitutional. The question, then, is whether such an extra-constitutional "corrective" is a prudent recurrence to first principles. I don't think it's prudent. Nullification undermines the Union and the rule of law far more than does civil disobedience. Civil disobedience by individuals like Rosa Parks is not nearly so dangerous a recurrence to first principles because individuals are at a major disadvantage in such contests with the government given the enormous powers at government's disposal. When states disobey, by contrast, the contest is more equal (which is why it's more attractive), but that very fact makes it more dangerous. Moreover, when a state does it, it gives vigilantism a color of authority and respectability (usurpation by the federal judiciary doesn't change the nature of state nullification). It is therefore a far more radical measure in my view, and one not warranted when other viable constitutional options are still available.

In order for it to be so you would have to create a new amendment allowing for a majority veto by the states.

Or, alternatively, you would have to make effective (make it so that most or all parties were willing to accept) a new interpretive standard for language that is already in the Constitution, i.e. the 10th amendment. Which is, by the way, exactly the sort of thing that has been done here and there throughout history when various agents in government propose a new way of handling a problem, a new way of applying the words of the Constitution, (often to new situations that didn't exist before), and convince everyone to go along with that as being suitable to the existing order. The judicially imposed Miranda warning, for example.

Let's say a large number of states decide that the legal fiction of corporate personhood is obviously too insane to be continued any longer and that most of those corporate rights are simply legitimizing corruption.

Using causes that are nearer and dearer to them will sharpen you point. Will they "heartily approve" and "enjoy the show" when states start nullifying Pierce v. Society of Sisters, Dale, Hosanna-Tabor, etc.?

Perseus, can you tell us what those cases are? They are not household names.

The 10A is a "parchment barrier" because it does not include any specific checking power.
In case Perseus wasn't abundantly clear, your proposal is not constitutional. In order for it to be so you would have to create a new amendment allowing for a majority veto by the states.

Perseus and Step2, would you oppose or support a constitutional amendment which added language to the 10th amendment, saying (roughly), "if 60 percent of the states declare a federal act exceeds the constitutional powers of the federal government, it shall be null and void"?

Pierce v. Society of Sisters=a right of parents to send their children to non-public schools, Dale=right of private organizations to dissociate from whomever (Boy Scouts may exclude gays), Hosanna-Tabor=ministerial (religious) exception to anti-discrimination laws.

Y'know, Perseus, it might occur to you that we think truth actually matters. This is like anything else. Truth matters. Including truth about the Constitution. The issue is not, and never has been, the rights of this person or that person to be whimsical and "do whatever he pleases." This has to do with cases that are not only wrongly decided, but *blatantly and obviously* wrongly decided, and wrongly decided without even a good pretense or mock-up of actual Constitutional support. Roe unquestionably falls into that category. Hence my repeated references to good faith.

My position has never been, "Hey, I'd love it if any state ignored any SCOTUS ruling. Wouldn't that be cool? That would be so fun." It is a sign of your inability to understand that both truth and epistemology matter that you insinuate that our position is juvenile and of that sort--a sort of love of state defiance of SCOTUS rulings for its own sake, regardless of any evaluation of the legal merits of any actual ruling.

You used to be better than that at making an attempt to represent fairly those with whom you disagreed.

My position has never been, "Hey, I'd love it if any state ignored any SCOTUS ruling. Wouldn't that be cool? That would be so fun." It is a sign of your inability to understand that both truth and epistemology matter that you insinuate that our position is juvenile and of that sort--a sort of love of state defiance of SCOTUS rulings for its own sake, regardless of any evaluation of the legal merits of any actual ruling.

My claim is that that is the effectual truth of your position because when you poke a hole in the constitutional dam against nullification, particularly in a high profile case like this one, it will be difficult to prevent others from making the hole even bigger since neither philosophers nor angels rule. Indeed, you in particular (unlike Tony) have not as yet given us much indication that you have thought through the long-run political and constitutional ramifications of what you're advocating here.

My claim is that that is the effectual truth of your position because when you poke a hole in the constitutional dam against nullification, particularly in a high profile case like this one, it will be difficult to prevent others from making the hole even bigger since neither philosophers nor angels rule.

What you're saying here actually confirms Lydia's points (that you are not particularly concerned with truth here) and mine (that you are concerned strictly with procedure). Your position is that we must be stuck with laws, regulations and rulings that are transparently unconstitutional yet supported by a sitting judiciary because otherwise state legislatures might run wild. So better that the feds enforce thousands of pages of unconstitutional (explicitly so under the literal text of the 2nd amendment) gun regulations on Tennessee than Tennessee assert the literal text of the 2nd amendment against a federal government that doesn't wish to hear it.

Lydia,

Concerning your point about old state laws you might find this federal court ruling quite interesting. It was a SCOTUS ruling declaring it unconstitutional to make only the children of married women eligible for child support. So now any state that wishes to draw a legal distinction viz a viz the rights and claims of married mothers may not do so under federal law. Lovely. Bet the drafters of the 14th amendment didn't see that coming (though in their defense, they didn't see most of what came from it because they were near-sighted fools).

since neither philosophers nor angels rule.

Which has always been true. You would rather we all entrusted ourselves to the tender mercies of the federal government, where neither philosophers nor angels rule, and let them rule over the entire nation without being checked by anything remotely like the text of the country's founding document. In that case, why bother having it? I would prefer to give a nudge to the consciences of state officials and to free them from the paralyzing notion that they are in duty bound always and everywhere to conform themselves to everything said by SCOTUS, where neither philosophers nor angels rule.

Mike T, I've always believed that the privileges and immunities clause was far more short-sighted than anything that has actually been used to do mischief. It's so delightfully broad and vague, and it's not in the preamble; it's right there in the amendment. The fact that it's been left as the "sleeping giant" while the courts have, of all things, turned "deprived of liberty without due process of law" into "deprived, by the orderly working of the law, of the liberty to do something or other we think people should be allowed to do" just goes to show that this really isn't about the text or meaning at all. This is postmodernism in action, starting even before postmodernism was popular as a theory. The text is infinitely malleable and is merely used to "mean" whatever those in power want to say.

I am entirely in sympathy with Tony's suggestion regarding a constitutional amendment for the reversal of federal court rulings.

However (and I would be surprised if Tony disagrees with this, as several of the things he has said tend to agree with it), I don't hold that a state governor, prosecutor, etc., must act (and not act) in conformity with *just any* federal court ruling, however insane, while waiting around to see whether 2/3 of the states will get on board with reversing the ruling.

If SCOTUS ruled tomorrow that it is buried somewhere in the 14th amendment that Moloch is a real god and ordered all states to set up high places for his worship, states would not have to wait for 2/3 of them to agree that that is ridiculous, and to vote as such, and meanwhile set up the high places. If SCOTUS ruled tomorrow that the equal protection clause means that no state can arrest any person for the crime of murder, the states would not be bound to allow anarchy to reign within their boundaries while waiting for some more cumbersome process involving a majority of the states to "overturn" such a ridiculous ruling.

We are not talking here about a state's getting het up about a federal law and pledging itself in some unspecified manner to "oppose" the federal government's carrying out of that law. Mike T may be advocating that. I'm not, or at least not here and now. That certainly isn't what I've been talking about. Not only is that logically a different thing, but both its mechanism for moving ahead and its consequences are much less clear and much more radical. I'm talking about a state's continuing to carry out a duly passed law of its own or refusing to write entirely new laws in exceptional cases where the federal courts have either attempted to nullify a state law on blatantly unconstitutional grounds or, on equally blatantly unconstitutional grounds, ordered states to write entirely new laws. I am simply asserting that there can be such cases where the state, as a legal entity in its own right, can calmly continue carrying out its normal functions without having to rewrite its laws in accordance with insane federal court rulings.

And, yes, for purposes of making that argument, a "parade of horribles" is relevant.

We are not talking here about a state's getting het up about a federal law and pledging itself in some unspecified manner to "oppose" the federal government's carrying out of that law.

What I'm proposing is that the state simply ignore the feds and make the feds act. The best thing North Dakota could do is provoke the feds into a massive overreaction. No matter how right they might be in Constitutional Procedure Land According to Perseus, they'd lose the war instantly in the eyes of the public. This sort of thing is precisely why they've all but lost the War on Drugs with the public; the means have simply outstripped the ends by leaps and bounds.

By the way, I may have missed Perseus' and Step2's outrage and fear-mongering about the anarchy to follow when several states blatantly passed laws encouraging doctors to break federal drug laws by killing their patients using federally controlled substances. And the federal government meekly stepped aside and made a legal nonsense of the whole situation by selectively enforcing those controlled substance laws only in states that hadn't stated that it is legal to use them to kill patients.

Evidently one is a dangerous purveyor of rebellious and anarchic ideas if one encourages states to enforce their own laws _stopping_ doctors from killing people but it's no biggie if states pass laws encouraging doctors to _go ahead_ and kill people contrary to federal law.

Well, bear in mind that Perseus's go-to response for the states is to invoke the right of revolution instead of nullification. As I said, his approach is akin to telling someone who's been punched to shoot their assailant in the face instead of a more measured response.

You would rather we all entrusted ourselves to the tender mercies of the federal government, where neither philosophers nor angels rule, and let them rule over the entire nation without being checked by anything remotely like the text of the country's founding document.

You can belabor that point, but Dred Scott would not have made state nullification legal or prudent and neither does Roe.

Evidently one is a dangerous purveyor of rebellious and anarchic ideas if one encourages states to enforce their own laws _stopping_ doctors from killing people but it's no biggie if states pass laws encouraging doctors to _go ahead_ and kill people contrary to federal law.

Nice try, but I already pointed out upthread the inconsistent (and hence usually unprincipled) support for federal supremacy (and federalism), so your better bet is to continue scolding me for being insufficiently concerned about an overbearing federal government.

However (and I would be surprised if Tony disagrees with this, as several of the things he has said tend to agree with it), I don't hold that a state governor, prosecutor, etc., must act (and not act) in conformity with *just any* federal court ruling, however insane, while waiting around to see whether 2/3 of the states will get on board with reversing the ruling.

Precisely how far should the states go while they're waiting around? This is not a case of states refusing to use their resources to aid in federal criminal law enforcement, but rather states engaging in criminal law enforcement in violation of federal court precedent, which all but guarantees direct confrontation between state and federal authorities. What are state officials to do when confronted by federal officials who show up to carry out a federal court ruling ordering the release of any people being held and issuing a permanent injunction against state officials from enforcing the statute? Is this just a publicity stunt for state officials to thumb their noses at federal officials in person (and then scatter) or do you want state officials to do something more?

What are state officials to do when confronted by federal officials who show up to carry out a federal court ruling ordering the release of any people being held and issuing a permanent injunction against state officials from enforcing the statute?

What are the federal officials to do when the Supreme Court says X is valid constitutional law, but the President says X is not constitutional and no official of his administration is to carry it out?

but Dred Scott would not have made state nullification legal or prudent and neither does Roe.

Dred Scott is probably an unfortunate example for you, because IT DID help lead to the Civil War, so worrying about anarchy and war (ensuing by not following judicial decisions) can't wholly outclass the issue of whether the decision was rational or clearly irrational. Clearly being an irrational decision itself lends itself to disruption of the rule of law.

Perseus and Step2, would you oppose or support a constitutional amendment which added language to the 10th amendment, saying (roughly), "if 60 percent of the states declare a federal act exceeds the constitutional powers of the federal government, it shall be null and void"?

I oppose it if the filibuster is allowed to continue. The filibuster is flagrantly undemocratic and an extremely abused privilege. If your amendment includes a Constitutional ban on the filibuster I would support it, but only on that condition.

And, yes, for purposes of making that argument, a "parade of horribles" is relevant.

For the purposes of recognizing political reality, I cannot imagine any President willing to enforce it or any Congress not putting a quick stop to your parade, including impeachment of every SCOTUS judge if needed.

By the way, I may have missed Perseus' and Step2's outrage and fear-mongering about the anarchy to follow when several states blatantly passed laws encouraging doctors to break federal drug laws by killing their patients using federally controlled substances.

I don't recall you writing anything about this previously, was it a post or a comment? In either case, I'm opposed to it and would prosecute doctors who violated federal law. However I will admit there is a difference in a scenario when a state receives federal permission for violating federal laws (which is corrosive upon the law as well as corrupting of officials) and a scenario where the state unilaterally declares the law null and void (which is rebellion).

What are the federal officials to do when the Supreme Court says X is valid constitutional law, but the President says X is not constitutional and no official of his administration is to carry it out?

That's non-responsive.

For the purposes of recognizing political reality, I cannot imagine any President willing to enforce it or any Congress not putting a quick stop to your parade, including impeachment of every SCOTUS judge if needed.

Oh, so Step2, you _do_ have your limits? Is this what you are saying? What if they didn't? What if murder were sufficiently popular or Moloch worship sufficiently popular? The states just have to erect the high places or stop locking up murderers? C'mon, you try to make me bite the bullet and answer, "What if they weren't reasonable?" questions. What is sauce for the goose, etc. I was sure I could find _something_ sufficiently outrageous that it would bother you, but you are also free to make up your own example.

You will notice that Perseus is evidently willing to bite the bullet good and hard. Presumably that's what he meant by "refusing to be browbeaten by a parade of horribles." In other words, the states _do_ have to do what they are told unless given specific permission by both President and Congress to do otherwise.

I have so far refrained from bringing this up, but even at the individual level, Perseus is willing to take his proceduralism very far indeed. Some time ago, though it was like pulling teeth to get him to answer the question, he implied quite clearly (in response to my reductio) that he would turn his children over to strangers if a court decided to give away his children by lottery to a different couple in the interests of "increasing diversity," presumably on the assumption that the court had followed some sort of procedures and was acting in response to some procedurally passed positive law in so doing.

Here is my question:

http://www.whatswrongwiththeworld.net/2010/01/how_do_you_spell_abomination.html#comment-93076

Here, after a little delay, is Perseus' slightly veiled answer:

http://www.whatswrongwiththeworld.net/2010/01/how_do_you_spell_abomination.html#comment-93366

So this is someone who has been honing his teeth on bullets for a while.

What if murder were sufficiently popular or Moloch worship sufficiently popular?

I would ask why haven't I moved away from this dystopia yet, since they allow citizens to leave of their own free will?

I oppose it if the filibuster is allowed to continue. The filibuster is flagrantly undemocratic and an extremely abused privilege. If your amendment includes a Constitutional ban on the filibuster I would support it, but only on that condition.

Step2, what in the name of this green Earth has the filibuster (a strictly senatorial privilege) got to do with states' powers and making them enforceable under the 10th amendment? These are completely independent issues with completely independent matters of correction.

Nevertheless, I thank you for the tentative support of the amendment. In response, I agree that the senatorial privilege of the filibuster is gravely in need of a fix, and should be reformed. Not, though, by amendment to the Constitution - it's a darn rule of procedure , not a basic way we think about governance. But some parts of the fix _ought_ to be very easy. For example, senators ought to be required to vote on a judicial nominee within 6 months, a straight up or down vote by or at the 180 days mark - no more indefinite "holds" on such nominees. "Advice and consent" means that they have to take a vote to determine their advice and consent, and GIVE that to the president.

Step2, what in the name of this green Earth has the filibuster (a strictly senatorial privilege) got to do with states' powers and making them enforceable under the 10th amendment?

I'm willing to exchange an abused and undemocratic type of state's veto power within the federal legislature for a democratic and hopefully uncommon type of generalized state's veto power in your amendment.

So this is someone who has been honing his teeth on bullets for a while.

Yes, the fugitive slave laws required the free states to bite very hard indeed, but that was part of the constitutional deal, so changing the particulars of the deal as in your hypothetical wouldn't alter my opinion. And since you bring it up, this confirms a pattern on your part of exhorting people to break the law in the name of your laundry list of moral causes, which makes your professed fidelity to the rule of law ring rather hollow. So how far are you willing to go in encouraging people to disobey this time?

Well, bear in mind that Perseus's go-to response for the states is to invoke the right of revolution instead of nullification.

My position is the same as that of the crazy, bullet-biting Madison:

Another circumstance to be noted is that the Nullifiers in stating their doctrine omit the particular form in which it is to be carried into execution; thereby confounding it with the extreme cases of oppression which justify a resort to the original right of resistance, a right belonging to every community, under every form of Government, consolidated as well as federal. (Letter to Trist, Dec. 1831).

This is not a case of states refusing to use their resources to aid in federal criminal law enforcement, but rather states engaging in criminal law enforcement in violation of federal court precedent, which all but guarantees direct confrontation between state and federal authorities.

You mean just like the states did on drugs: passing "criminal" laws in violation of federal laws. All but guaranteed a direct confrontation - except for the feds backing down, of course.

Look, I am not advising states to defy the federal rules on just anything that they think is imprudent, unfair, or whatnot. The issue is where the feds BOTH encroach on state turf, do so without a shred of substantive constitutional interpretation backing it, and it's about something that is a basic human right, a basic common good, a necessary part of state protection of persons.

It makes no sense to quasi-support (or at least turn a blind eye) for individuals who are willing to go to the lengths of civil disobedience (and are willing to accept the consequences if caught), and declaim that STATES doing the same thing is completely out of bounds, and then turn a blind eye to states doing it on (federal) illegal drugs. Heck, permitting X drug to be decriminalized in your state contrary to federal law isn't even a basic human right or in reference to basic state protection of human life.

Perseus, the kind of rigid, blind (but grating) obedience you are pointing to is the kind of obedience that is more likely to eventually blow up into out-and-out revolution, when you have a large minority of people who can no longer stand the trampling of their deepest moral sensibilities. Just from sheer a prudential perspective, it is probably better to allow some steam to blow off in partial (halting, incomplete) acts of disobedience, just limited acts rather than meant to repudiate the government as such than it is to demand utter and absolute obedience even to the worst examples of so-called law.

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