Who Decides Constitutionality?

Tenth Amendment Center: Constitutional Conversation

Before the Tennessee State Senate Judiciary Committee in support of SB0250 on February 27, 2013

Hello, my name is Michael Maharrey. I’m the national communications director for the Tenth Amendment Center. I’m honored to be here.

As you know, in the opinion of Attorney Gen. Robert Cooper, SB 250 violates the supremacy clause of the Constitution. I’ve read the opinion, and his basic reasoning is solid.

Never-the-less, he came up with the wrong answer.

I’m sure you all remember working long quadratic equations in your high school algebra class. You know that you can work each step in precisely the right sequence, but if you insert 2×2=6 in the first step, you will come up with the wrong answer at the end. Why? Because you worked the entire problem operating on a false premise.

Cooper spends the bulk of his opinion correctly arguing that constitutional federal law trumps state law where it conflicts. Quite frankly, that was a waste of time. Nobody disputes that. The problem is that he incorrectly assumes that every federal act is a constitutional law and he builds his opinion on that fallacious premise.

Fact: Only laws made in pursuance of the Constitution are truly supreme.

All the founding fathers agreed – and I mean ALL of them – any federal act that violates the Constitution is no law at all. Alexander Hamilton summed it up in Federalist 78

“Every act of a delegated authority contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can be valid.”

Cooper apparently wants the People of Tennessee to believe the following federal acts mentioned in Section 5b are constitutional, and supreme.

-a Ban on firearms.
-tracking of ammunition
-federal taxes on firearm accessories

Where exactly does the Constitution delegate the federal government the power to regulate firearms? It doesn’t. Some will argue that the federal government has some regulatory authority under the Commerce Clause. But, we have the Second Amendment, which puts further restrictions on the federal government. Note the most important phrase in the 2nd Amendment – “shall not be infringed.” Infringe means to interfere with. That doesn’t leave any wiggle room.

Cooper mentions the possible unconstitutionality of such acts almost as an afterthought. He writes near the end of his opinion, “While the bills themselves declare that certain federal firearms regulations are unconstitutional…the responsibility for that determination rests with the judiciary, not a state legislature.”

The attorney general rests his argument on Marbury v. Madison.

But Cooper is misconstruing Marshall’s ruling. The Chief Justice was merely asserting that the Court CAN in fact NULLIFY an act of Congress by ruling it unconstitutional. Nowhere does Marshall assert the Court has exclusive authority to rule on constitutionality. In fact, quite the opposite. Justice Marshall wrote:

The particular phraseology of the Constitution…confirms and strengthens the principle…that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.

The attorney general also cites Cooper v. Aaron to assert the supremacy of the federal judiciary and that its rulings cannot be challenged.That case rests on the same bastardized interpretation of Marbury.

Such a notion obliterates the constitutional system, making the Court the de facto sovereign. I shouldn’t even have to point out the absurdity of the Court making itself supreme. It’s like King Arthur claiming “supreme executive authority” because, in the words of Dennis in Monty Python and the Holy Grail, “some watery tart threw a sword at him.”

Ronald Reagan’s Attorney General Edwin Meese said this:

The “logic of Cooper v Aaron .. is at war with the Constitution… at war with the very meaning of the rule of law.”

We need look only to the Dred Scott case, which denied even free blacks citizenship and went on to proclaim black people inferior, to see the inherent flaw in this idea of judicial supremacy. Do you really accept that Dred Scott was legitimately the law of the land – even for one minute? Abraham Lincoln sure didn’t. In response to the ruling, he said:

“If the policy of government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court…the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal.”

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Fact: The Tennessee Attorney General tells us that only the federal court can determine constitutionality.

Fact: Ronald Reagan’s attorney general, plus Abraham Lincoln, James Madison and Thomas Jefferson all disagree.

Jefferson said the states “are not united on the principle of unlimited submission to their general government.” And that the “government created by this compact (the Constitution) was not made the exclusive or final judge of the extent of the powers delegated to itself.”

Simply put, the people of the states delegated the federal government its power in the first place. As James Madison said

“The States then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.”

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