In one of my recent articles, I discussed the principle of nullification. Nullification is the idea that state governments can nullify a federal law. Essentially, nullification is when a state refuses to follow a federal law because the state deems that law unconstitutional.
This is an interesting principle and is a controversial principle. Let’s use the analogy I’ve been using all along to see how well this idea hold up in the real world.
Think of the relationship between employers and employees. The employers have a job description for themselves and the employees are given a job description as well. Yes?
Remember, we the people — of the states — are the ones that created the federal government’s job description and are the ones who employee the federal government. Thus, in the real world example, the federal government is the employee while the citizens of the united states are the employers.
Ok, let’s move back to the real world example. Say that you give an employee, your manager, the power to make a great number of the rules and regulations for your company—-rules and regulations that you, in turn, must also follow in order to legitimize the role you’ve bequeathed to this employee. However, you were careful to detail for this employee all of the areas in your business about which she is allowed to make rules. She can’t make rules outside of that limited context.
As time progresses this employee becomes more and more powerful in this role. People come to her complaining about this issue or that issue expecting your manager to make new rules to solve the problems. You remain aloof as long as your manager stays within her job description. You continue to follow the new work places rules and respect the work environment created by this employee. Her leadership has brought about a sense or unity, organization, and calm that your business desperately needed.
However, one day this employee makes a work rule that is not within her power to make. You immediately recognize this. You’ve been paying close attention to the job description, especially lately as she seems to be getting closer and closer to moving outside of that job description.
You know that if you choose to submit to this new rule you will be affirming a level of power for your employee that you were unwilling to give her in the first place. It’s a risk to step out and refuse to follow this new rule, not to mention, to call her out publicly for it, but it really is your only option. Otherwise, you are volitionally choosing to let her power run wild. You’d rather risk unrest in the company than an overbearing manager who ends up taking power from you as the real and legitimate boss.
So, you do what’s necessary and, politely but firmly call her out for her unwarrented actions and new rule. Naturally, this does undermine her power and causes a stir in the rest of the company. People start questioning all the rules, others stop following the rules altogether. The expected fall out happens but you manage to keep her power in check and also re-establish a sense of normalcy in the company by still upholding all the rules she rightfully created.
This entire debacle does two things. It affirms for the rest of the company that the manager is the manager and should be respected, while also reaffirming for the company AND your manager that the final authority is and always will be, you.
Fascinating analogy right?
This is essentially the picture of what happens when state governments choose to invalidate or “nullify” federal laws that are unconstitutional. It’s not a perfect analogy. The accuracy of a state’s individual interpretation of the Constitution is a little harder to guarantee. But since the states are the united local governing structures of the U.S. citizenry, what better way to challenge the actions of the federal government?
If any government should do it, it should be the state governments. They are the mouth pieces of the people. The states are the literal states or mini-countries that willfully united and created a federal government in the first place. It’s a federal government that was given a specific, clear, and defined purpose by the U.S. Constitution—written by the states.
Who else to challenge federal power but states?
Sure, the Supreme Court can challenge the other branches all day but ultimately, it’s in their best interest for the federal government to grow and the states to diminish. Do we really expect a federal branch to limit federal power forever? If anything, the Supreme Court has only increased federal power exponentially since the founding era and will continue to do so.
The Supreme Court is not the employer… it is the employee. We can’t trust or rely on the Supreme Court to do the job of the employer when it, as the employee, wants all the power.
We the people must be vigilant to keep our state governments and state representatives so aware and so sensitive to any overstepping of the federal government, that the federal government dares not overstep for fear of retribution.
We’re so far from that reality right now though.
Who knows… maybe it’ll just take people like you and me fighting for the Constitution at the state level to move us back to that reality.
The Liberty Belle