The nullification of Supreme Court opinions by the States

You ought to read “Nullification, Now Coming to the Supreme Court? Mike Huckabee suggests that if the justices rule that gay-marriage bans are unconstitutional, states don’t need to listen” by David A. Graham in the Atlantic (January 21, 2015).* I don’t know much, but I do know that former Governor Huckabee is wrong on the law, and, what’s worse, his argument threatens the very foundation of our federal government.

I have a rather simple question for Mr. Huckabee to illustrate the poverty of his nullification argument, and that is:

If the State of New York were to say that the Constitution, the Second Amendment and the Fourteenth Amendment did not mean what District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago, 561 U.S. 742 (2010) proclaimed, would you agree that the State of New York could as a federal constitutional matter pass a law banning all guns in New York save for those used by the police since New York had no responsibility to follow Heller or McDonald?

I am willing to presume that Mr. Huckabee is a serious and well-intentioned person. That being so, he ought to seriously grapple with the implications of his argument if he wants serious people to give serious consideration to him and to it. At this point, the former Governor is merely throwing rotten meat to a hungry but lunatic fringe.**


*As always, thanks to Howard Bashman and How Appealing for keeping me informed.

**One would have hoped that Mr. Huckabee, who hails from Arkansas, would have learned from President’s Eisenhower’s decision to enforce Brown v. Board of Education by nationalizing the Guard and sending 1,000 U.S. Army paratroopers from the 101st Airborne Division into Little Rock. See Transcript of Executive Order 10730: Desegregation of Central High School (1957).

51 responses

  1. Well said Your Honor. I pose this question though, what if the extreme right-wing conservatives manage to pass a constitutional amendment declaring (insert whatever you want that offends the notions of minority rights protected by the Bill of Rights) and the Supreme Court upheld the Constitutionality of the Constitutional Amendment? Wouldn’t that do away with the whole concept of inviolate minority rights?

  2. I read through to the linked transcript from the Atlantic piece and can’t take any position other than that Gov. Huckabee is lying. Quoting:

    “This idea that a judge makes a ruling on Friday afternoon, and Saturday morning same sex marriage licenses are being given out, that’s utter nonsense, because there’s not been any agreement with the other two branches of government, so I just want people to go back to their 9th grade civics class, and remember there are three branches equal, and that all three of them have to be in concert in order for something to become law. And the courts can’t make a law, and they don’t have the power to enforce a law.”

    I find it almost impossible to think that Gov. Huckabee believes what he’s saying here. The idea that a judge makes a ruling on Friday afternoon and Saturday morning same sex marriage licenses are being given out is exactly how it works. It’s happened pretty darn often lately. He’s not a stupid guy, and I’m sure he’s had to deal with Federal court orders in his time as Governor. He is so specific in his wrongness that I can’t help but think it’s a flat out lie, and that greatly diminishes my respect for him.

  3. Huckabee believes that the Bible (as he interprets it) supersedes US constitutional law and precedence. He often refers to a “2,000 year old tradition” that is code for the Bible’s prohibition on homosexuality.

  4. Spencer Roane rides again, this kind of nonsense is a regular feature of Constitutional history, eg WI and the Fugitive Slave Law, massive resistance to Brown, and State Legislatures proposing nullification or interposition against federal statutes. such as ACA. It usually flows from a view of the federal system as more federation than nation creator. Less extreme version is SCOTUS majorities fascination with 10th Amendment. Suspect Huckabee may believe what he says. That the Constitution says what my wife and I think it says is part of the American tradition. NE side note en banc in Aaron v Cooper was held in old Fed Courthouse in Omaha, which had the only Ct of App. bench that would hold all of them. There was a picture taken of the Court published in World Herald.

  5. “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

    U.S. Const. Art. VI.

    As a country, we have visited nullification before. More blood has been spilled over this debate than any other constitutional issue. Almost 620,000 people lost their lives, and almost half a million more were seriously injured between 1861 and 1865.

    The basic theory of nullification is that the states are parties of a contract, and as parties, can refuse to perform or withdraw from it. Secessionists promoted this viewpoint, arguing that it gave them the right to defy federal law and secede from the Union. This was countered by the United State’s view, defined most articulately by Abraham Lincoln:

    “Again: If the United States be not a government proper, but an association of States in the nature of contract merely, can it, as a contract, be peaceably unmade by less than all the parties who made it? One party to a contract may violate it–break it, so to speak–but does it not require all to lawfully rescind it?”

    This was a part of his first inaugural address, made on March 4, 1861, a little more than a month before the shots fired at Fort Sumter began the Civil War.

    I do not ask much out of my politicians. But more people died in the Civil war than all other wars the United States has participated in combined. Fully 2% of our adult population died for this idea.

    I don’t ever want to see nullification become a serious idea in this country again.


  6. SLS I share your view, but in a sense you are rejecting originalism for a type of living Constitution which takes into account history and Amendments in reading Constitution. Calhoun’s reading lost the Civil War particularly when conjoined with Civil War Amendments, but a good share of original readers, presumably delegates to State Conventions, probably held to some version of it.

  7. The friendly Rev. Huckabee is obviously out to lunch – he should know better, but then, as we all know, politicians are prone to mouth nonsense. However, some wags and talking heads are also saying that we have a President who is intentionally ignoring and threatening our “federal” system with his eagerness to act unilaterally by executive orders. Choose your poison – is that not also a valid concern for those of us who hold dear to our federalism? Just sayin’. . . . .

  8. Repentinglawyer,
    They absolutely did. Madison’s notes on the Constitutional Convention pretty clearly indicate that most of the small state delegates held with some variation of the viewpoint. It’s a tension that existed for a long time.

    You know, originalism is a blurry word. I wish I knew what it meant. But analyzing things in a historical context does not seem to be a bad idea to me.

  9. MOK By putting scare quotes around federalism I presume you are noting that the issue of executive orders is largely an issue of separation of powers. Issue is valid even if you adjectives are over ripe. Not sure I see relevance here, if SCOTUS does not decide or agrees with POTUS doubt many will argue for nullification by the States. Talking heads criticizing ex. orders tended to defend signing statements of Bush II, and defenders of ex orders were not friends of signing statements. To be a talking head is to adopt Emerson’s view of consistency.

  10. MOK,

    While the President may be exceeding his powers as the Executive by overuse of executive orders, the Huckabee assertion is very different and more dangerous. Refusal to follow an otherwise binding decision of the Supreme Court is different from pushing, and even exceeding, the limits of the power of the Presidency. In the first case there is no doubt what the law is, whereas in the second case that question remains unanswered until subsequently decided by a court. Had President Nixon refused to turn over the tapes after having been ordered to supply them, that would be a closer analogy. Thankfully, Mr. Nixon relented and followed the dictate of the Supreme Court.

    All the best.


    PS In general, however, I credit your point.

  11. Nullification has a long history and keeps on rearing its ugly head. We first had this debate in 1787-89 between those who wanted a “United States” and those who wanted a confederation of united States. Since this is a blog, I will not go into the extended reasons why the best reading of the text of the Constitution shows that the supporters of the United States (federalists) won that debate over the supporters of a confederation (anti-federalist) in the legal sense that their proposals got adopted.

    Because the anti-federalist arguments are out there in the market place of idea, every generation seems to have a group of people that don’t like what the federal government is doing and re-raise the anti-federalist and nullification arguments (as if the issue has not been comprehensively resolved at least as far as the legal merits of the argument) — proving the old saw about those who do not remember their history being doomed to repeat it. Currently, the ideology that is most aggrieved with the federal government and looking favorably on nullification is shared by a significant portion of Republican primary voters. So Republican politicians can be expect to spout these anti-federalist arguments to pander to the base (regardless of whether they take these arguments seriously).

  12. Still going strong in Missouri, here it’s called the Second Amendment Preservation Act. Pandering to the Republican base means either God or Guns (we’ll see what happens in a few months to the Gays leg of the stool).

  13. Judge, A constitutional decision of SCOTUS is law, which all most accept but SCOTUS, for whom it has some not clear binding force because Constitution is law not what the Court says. You are probably right but you have to go to law school to write it with a straight face, and if Jefferson rather than Adams had appointed CJ we might not write it. Should we be sad or glad Marshall stole finality fair and square?

  14. Pigs will fly before that happens.

    It would not get out of congress, or survive a veto, and if it did, the required number of states would not ratify it.

    BTW, “minority rights protected by the Bill of Rights” is a fantasy … the Bill of Rights apples to the majority since 100% is still not a minority is it?

  15. I find it amusing that you would chastise Governor Huckabee for advocating what your colleagues do on a routine basis: ignore binding Supreme Court precedent. When given the chance to criticize your colleagues for it, you have chosen not to. But you do it now. Isn’t that hypocritical?

    Hamilton said in the Federalist that judges only have judgment. If we as a society lose our confidence in your judgments for good cause, such as judges defying the Constitution and becoming laws unto themselves, don’t we have the prerogative to do what Andrew Jackson (“Mr. Marshall made his ruling, let him enforce it!”) did?

  16. … all three of them have to be in concert in order for something to become law …

    Hey Huck, that sounds at best philharmonic, but the truth is that you are conflating menage a trois with the process of federal legislation.

    The “three” is the House, Senate, and the President.

    BTW, the Constitution says what the Supreme Five or so say it says (Marbury v Madison).

    If the menage a trois gets on up to the big house (the one with the big pillars but no cameras) and they say they are cool with that legislation, end of case.

    Huck, you are a mangy wascal.

  17. Judge: You have nailed it. I will hope that a journalist who has prepped for that question gives Gov. Huckabee that precise hypothetical, and then follows up hard on the good Gov’s answer. He would wiggle out of it somehow, but it would very interesting to see how he does that.

  18. Yes, Judge, I agree that what you say is correct. Tricky Dick, for all his faults, saw the big picture and acted quite appropriately in the end. Also, in addition to the review power of the SCOTUS, those questionable executive orders are usually subject to the power of the purse held by the Congress. What Huckabee says is nuts, and I agree, dangerous if he is truly serious. Reminds me of a County Attorney in SE Nebraska back in the 1980’s who pushed for jury nullification in certain cases. He even sent me a brochure touting jury nullification, which I think I still have somewhere in my “stuff” collected over the years.

  19. Have to correct myself – The County Attorney I referred to above was in SouthWEST Nebraska, not the Southeast. I never learned to type worth a damn. . . . .

  20. Judge:
    Assume, as some experts have suggested, that the High Court rules as follows in the same sex marriage cases soon to be decided by it: the several states are not constitutionally prevented from allowing same sex marriages but, at the same time are not required to do so. Won’t this be a result nearly similar to what Governor Huckabee wants, namely, that some states will still be free to deny same sex marriages irrespective of the fact that other states do?

  21. Glad to have you back healthy, scrappy and on point. (BTW, I also despise Word and think that Word Perfect 5.1 was the last great word processing programme; however, I am now a firm convert to the open-source LibreOffice, which might appeal to your “throw-a-Spaniard-in-the-works” nature.)

  22. Huckabee has now disqualified himself for President for me because I am a Rule of Law guy. But Mike is shrewd and he wants to win. And he is tapping into the exact Roe v. Wade resentment that has existed for decades. And that anger will continue for years on SSM. If Nebraska put a repeal of the ban on SSM it would lose by a Dave Domina like margin. Millions of Americans oppose SSM and resent that an unelected federal judiciary (for the most part; see Iowa and MN) has imposed their will on the people and overturned the entire course of human experience and the complete history of the law.

    For all you same sex marriage supporters, you mean to tell millions of people that there was not a single rational reason to enact the law?

    And think about this. What if the case accepted for cert has a 4 – 4 vote and the Sixth Circuit decision stands? Then what?

    I think we know that there are four votes agreeing that the states can decide this issue (as they always have) and that those four Justices are not idiots. They are, after all, on the Supreme Court and they exceed the authority of the judges who have ruled contra.

  23. Anon.,

    You write: “For all you same sex marriage supporters, you mean to tell millions of people that there was not a single rational reason to enact the law?”

    To be clear, I did not intend to express an opinion on SSM as a legal matter.

    All the best.


  24. Dredd,

    Any writer who uses “menage a trois” in the same sentence as Governor Huckabee has an exquisite sense of humor. All the best.


  25. Dredd, Some years ago I would have agreed that it was not feasible to totally do away with a set of individual rights, but in recent years an intolerant malignant red-neckism has metastasized and shown itself to be willing to do so. If we have a GOP president in two years, the veto will become irrelevant and the states; well that’s anyone’s guess. They however have a lot more red-necks than ever before.

  26. Anon Anyone who has mastered the entire course of human experience and the complete history of the law is either too wise or too vain to be engaged in debate, but is your view on 5-4 decisions equally applicable to all constitutional cases for example 2nd Amendment cases, or is this usurpation limited to cases with which you disagree. My own experience on SSM is that my mind was changed by the arguments against which I find stupid at best and bigoted at worst, though I am not sure the federal courts should have become involved Opposition to most of Roe is largely driven by religious views flowing from Maryology or misreading of Scripture perhaps the kind of situation in which those who disagree are entitled to some protection against theocracy, though the arguments for judicial restrain made me uncomfortable with Roe.

  27. Repentinglawyer: Doesn’t the whole notion of deciding a fundamental (pun intended) aspect of human civilization on a 5-4 vote strike you as absurd?

    I am also glad to know that every voter, lawmaker and judge who voted contrary to your opinion is “stupid” or “bigoted” for adopting those ideas. But apparently you “grew” on this issue like our President.

    And anytime anyone interjects religion into the SSM debate they are raising the biggest red herring of all. Marriage is a civil matter governed by law.

    The above being said, SSM wins on a 5-4 vote and it will remain an issue of enormous division forever in this country.

  28. SLS, I grew up in the Deep South, and when I was a kid people said, “The South shall rise again,” but nobody believed it. Well, thanks to the Republicans (!) the South has risen again, and Huckabee and nullification nonsense is what you get.

  29. TMM, you don’t need to go into detail about why the Constitution is not about a confederation. If people wanted a confederation, they already had one. The point of the Constitution was to get rid of it in favor of a federal government. Maybe the South was right in its interpretation of the Constitution, but they lost the war.

  30. I said the arguments were stupid or bigoted not the people.Your remark about a fundamental aspect of human civilization is an example. I think that remark is stupid though you are bright. History and anthropology of marriage render remarks about unchanging basic institution of marriage beyond credit. There is no essence of marriage and no timeless history. With regard to religion, once arguments from theology are eliminated and marriage is viewed as a changing legal artifact the arguments for SSM become overwhelming. Incidentally in your world wide review of marriage did you note that in our legal tradition marriage was viewed as a religious matter dealt with by the Church of England and its courts with those rules carried over to American Law and the CofE cannons were based on Roman Catholic cannon law.. Perhaps the appropriate answer to your comment about the President and growth is to note you seem incapable of growth. I have a difficult time not finding silly the idea that fundamental question of human civilization are resolved by initiatives as in NE, but votes and judicial review are the answer we have come up with.

  31. Anon remarks on religion were aimed at Roe critics not SSM though I think same type of thought is driving force behind SSM critics,.

  32. I’d like to hear Anon’s position on Loving v. Virginia. Would (s)he not say that if an overwhelming majority of voters in a state prefer that “coloreds” and whites not marry, what possible Constitutional role could USSC play in overturning that state’s legally obtained anti-miscegenation statute? Should not the judiciary act in deference to the democratic process? That in any case, longstanding Southern tradition supported such a statute? That society as a whole in Virginia benefited from such a statute?That other states might allow such a thing, but what Connecticut decides about marriage should have no bearing on Virginia? And what about the Burkean Argument?

  33. “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” –Justice Bazile on finding the Lovings guilty. They were sentenced to one year in prison, suspended on condition that they move out of Virginia.
    Add “homosexual” to that list, and you have the issue before the supreme court today.

  34. It is an extended textual argument (published elsewhere) as to why the Constitution did not merely better structure a confederation/treaty (e.g. European Union, Switzerland, UN) but really did create a new nation. More significantly, unless you put more emphasis on the Fourteenth Amendment than I do, it is relevant what those who adopted the Constitution intended (an intent not changed by the Civil War). Even the leading anti-Federalists had this view of the Constitution (which is why they opposed its ratification).

  35. MarcosD: Loving is the reddest of red herrings in the SSM debate. Really silly. It still involved one man and one woman. The basic nature of marriage is between a man and a woman. In the West, we limit it to two and have (until now) prohibited plural marriage.

    I know two formerly married men who changed their sexual preferences. But they couldn’t change their race. See, John Rawls.

  36. Anon. Loving did not deal with biological concepts of race but with social constructs, so the herring is not so red. Notion of basic nature of marriage with out any explanation of why this is the basic nature rather than an historical accident is no argument at all. To use you own phrase”really silly.”

  37. Anon.: “Basic nature.” Define that, please. Virginia was all about “basic nature” which, as mswales points out above, was central to Judge Bazile’s finding.

    It sound like you’re arguing the procreation red herring (accidental or otherwise). Or is it the “better parenting” red herring? Or is it “The Bible says so” red herring? Or is it the common law red herring? Or is it the federalism red herring? Or the rational basis red herring? None of these herrings stands up to even cursory scrutiny. As Posner asked, over and over again, and got nothing but mumbo jumbo from the state lawyers, where is the harm, sir? Animus cannot be the basis for state legislation, but after the red herrings are discarded, that’s all you have left.

    Where all these pseudo-arguments cut against constitutional protection for equality, equality properly prevails.

  38. I could cite a hundred examples involving abuse of Rooker-Feldman, but this is a foul you have ALREADY committed.

    Tell me that it is constitutional for a judge to sit in judgment of his own appeal when other judges are authorized by statute to hear it. Murchison. Caperton. And tell me how a simulated “judgment,” void as a matter of state law, could possibly qualify as a “final state court judgment” for purposes of the Rooker-Feldman doctrine.

    Now, explain why you wouldn’t take your colleagues to task for outrageous decisions like that.

    If you can level just criticisms of European courts, Governor Huckabee, and lying prosecutors — and you should — on what honorable basis do you spare your colleagues?

  39. Repenting lawyer:

    1. The polygamy model has worked out great; especially for the kids. Check out that fine bin Laden family.

    Polygamy is the East and monogamy is the West. Within five years we will have SCOTUS blessed polygamy. Looking forward to that in Douglas, Dakota, Dawson, Hall and Lancaster counties. In fact, the Rotunda would be the perfect place for the first ceremony. Beautiful building.

    2. If the core purpose of marriage isn’t having and raising children, then we are not talking about the same topic. And for the life of me I don’t know why the SSM crowd brings up marriage of the sterile as some great point in their favor. Unless the laws of biology are repealed, two people of the same sex are not giving birth to children that are a product of the relationship.

  40. Anon The core purpose of marriage in the US is companionship with some couples having and raising children often not the product of their own union.. Birth control probably plays a role in change beginning with affordable condom, and no fault divorce also plays a role, but that is the reality, and the statutes are geared to that reality.Actualy there is already a case striking down criminalization of polygamy in Utah. Not sure we should get into iEast versus West, most Muslims do not practice polygamy, and there are a good many repulsive products of monogamous marriages in Douglas County, often members of the bar.

  41. MarcosD:

    Mr. Justice Scalia will set it all out in his dissent and it will be much better than whatever I could write on this blog. And it will also be aligned with the law and Constitution.

    And I hate to break it to you, but there is no federal common law or statutes defining marriage. Marriage was exclusively a state law issue until these lawsuits were ginned up.

    Under your “love is love” legal test, then what’s unconstitutional about incest? Nothing rational there!

    You are obviously a progressive liberal. The thing you need to ask yourself and your fellow travelers is why do you hate Chrisitianity so much. Admit it. You do. And the bizarre thing is that marriage has nothing to do with the issue of law and SSM.

  42. Correction: “And the bizarre thing is that RELGION has nothing to do with the issue of law and SSM.”

  43. Anon I think hatred of Christianity is both insulting and ridiculous, you can be a Christian without sharing the views of Cardinal Burke or the RC Archb. of SanFran or whatever branch of Christianity you claim to represent. The bizarre thing is you can couple that remark with the claim SSM has nothing to do with religion, which usually turns out to mean it is about natural law as read by the magisterium.

  44. Nothing much I can add to repenting’s post except to say that your and my feelings and beliefs about Christianity have no standing under American law (thank god) though Scalia would vehemently disagree.

  45. I hope your claim of universal authority of religious doctrine, in effect a Christian version of Sharia, prompts our own RGK to devote (no pun intended) an entire column to the subject.

  46. This is interesting. It is painfully clear that gay marriage is not a right secured by the Constitution. It’s made up “law” by fiat. So when Justices blow off the restrictions governing their decisionmaking, other members of the federal judiciary snip at the inevitable reaction.

    Amusing. To say the least. The Judiciary ought to remember that “It’s his decision, let him enforce it.” is also part of our history, and if the Judiciary decides to make up the rules as it goes along, it cannot complain when the other branches or states exercise the raw power they have.

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