QOTD: "what is this civil war you speak of?" edition

“You know we have talked about this at the state legislature before, nullification. But, bottom line is, as U.S. Senator why should we be passing laws that the states are considering nullifying? Bottom line: our legislators at the federal level should not be passing those laws. We’re right…we’ve gone 200-plus years of federal legislators going against the Tenth Amendment’s states’ rights. We are way overstepping bounds as federal legislators. So, bottom line, no we should not be passing laws as federal legislators—as senators or congressman—that the states would even consider nullifying. Bottom line.”

States cannot nullify federal laws, of course.

In embracing the concept of nullification, Ernst harkens back to a discredited theory that the Constitution is a compact and states are free to void federal laws that they dislike. This view was widely promoted by John Calhoun, the great Southern advocate of slavery, prior to the Civil War and was touted by segregationists in the 1950s and 1960s. In recent years, the idea was purged of its most racist overtones and fringe elements of the right adopted it as an argument against Obamacare, gun control, and other federal regulations.

As Erwin Chemerinsky, a noted constitutional law scholar and Dean of the University of California, Irvine Law School, told The Daily Beast, nullification is expressly forbidden under Article VI of the Constitution. “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof… shall be the supreme Law of the Land.” Chemerinsky also noted that the Supreme Court had dealt with this issue as recently as 1958, when in Cooper v. Aaron, a unanimous decision signed by every justice on the court, it was made clear that states could not nullify federal laws or Supreme Court decisions.