According to the calendar on the wall, today is the 225th anniversary of the adoption of the US Constitution.
Too bad it only lasted 14 years.
In 1803 in a case titled Marbury vs Madison, the US Supreme Court usurped the power of Judicial Review, a power that is not found in the US Constitution. (At least I can’t find it!) By so doing, this made the Supreme Court the controlling/superior branch of government as it thus assumed the power to void any act or action taken by the other two branches of the Government by simply declaring such act or action to be “unconstitutional.”
The power of Judicial Review, ie whether an act was Constitutional or not, was supposed to reside in the hands of the several and Sovereign States and was known as “nullification.” (An additional check on unconstitutional acts is in the supposed required concurrence of authority for acts that is held by the Legislative and the Executive branches, each having the power to void or prevent or nullify the acts of the other branch.)
In Federalist #48, James Madison said, “It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers.” http://www.constitution.org/fed/federa48.htm
The key to this is the phrase, “respective powers” which infers that such powers are limited, and may not be expanded to encroach on the powers of any other governmental branch, or even to expand such powers beyond those specifically granted to the branch. Such acts are limited to “…all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” (Art I sec 8). So if a law or act is not authorized by the Constitution, neither the Congress nor the Executive nor the Judiciary is granted the power to perform or require such an act.
The remedy for an unconstitutional act by Congress or the President can be for the States to just ignore it, as such a law or act would not be valid, and thus not legal or enforceable. Congress is only empowered by the Constitution to enact laws that are Constitutional. So nullifcation can be as simple as just ignoring laws that are unconstitutional, ie they are “of no effect.” But if an individual or State were to rest their objections in simple disobedience, then there would be no clarity of what is and what is not valid law. That way lies chaos.
In modern times, (since the US War Between the States/aka the US Civil War) the States seem to feel that to properly nullify an act of Congress or the President it should be done overtly – ie the individual and/or several State Legislature(s) passes a bill of nullification – which I believe essentially says/implies that the State that passes such a bill intends to ignore what it considers to be an unconstitutional act.
If such an unconstutional act can gather enough nullifying States then the message should be clear that the law should be either ignored or repealed. Or it would convey that it will not be obeyed, which simple disobedience would undermine the authority of the Federal government, thereby weakening it.
In one article on nullification I read, “The theory of nullification has been rejected repeatedly and rarely legally upheld by the Federal courts.” which is exactly what you’d expect the courts to do since nullification voids the court’s power – and it’s only natural for the courts to oppose a lessening of their power.
But then I’m not a “Constitutional scholar” – so my thoughts may be in error. If you want to understand the issues involved, you might be interested in this book – http://nullificationhistory.com/. I haven’t read it, but it looks like it considers viewpoints that the US Supreme Court would not agree with… and in a Constitutional Republic (which is the form of government the US is supposed to have, ie it’s not supposed to be a “democracy”) such disagreements are healthy and good for the nation.
In my reading for this post, I came across this statement (also in Federalist #48 – see above for link) that could very well apply to the current office holder of the executive branch:
“The conclusion which I am warranted in drawing from these observations is, that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”
Perhaps the Legislative Branch needs to attend to some repair of the fences that keep each branch within their respective pastures?