Dean says states have a right to nullify federal law in some cases
Should a state whose leaders think the federal government has overreached its powers be permitted to ignore a federal law, even when the Supreme Court has ruled the law constitutional?
Martha Dean, a lawyer and the Republican candidate for attorney general, thinks so.
In some instances, "the Supreme Court is just wrong, so what option does the state have?" Dean said. "They have the option of nullification."
Dean, who is facing off against Democrat George Jepsen in a race to become Connecticut's first new attorney general in 20 years, presented a vigorous defense Wednesday of the doctrine of "nullification," which holds that states can reject federal laws when they believe that Washington has no authority under the U.S. Constitution to enforce them.
"This is a tool that has existed," Dean said in a phone interview. "It is a tool that isn't often used. It isn't often needed."
But in cases in which she believes the federal government has surpassed the limitations imposed by the Tenth Amendment to the Constitution - which reserves powers not granted to the federal government to the individual states themselves - Dean said she supports efforts by Connecticut and other states to nullify federal law.
While Dean said her position is controversial only to "the left," nullification, also referred to as "interposition," is extremely controversial. It has been invoked by defenders of states' rights, for instance, in some of the most intense rebellions against federal authority, most notably during the run-up to the Civil War and the civil rights movement of the 1960s.
It is also considered invalid by legal scholars, said Richard Kay, a longtime professor at the University of Connecticut School of Law.
'A settled matter'
"This was a very plausible argument up until 1865," Kay said. "But after the Civil War, what was a genuine argument about the nature of the American constitutional system was pretty decisively decided.
"Since 1865 it's pretty much a settled matter, with some rare fringe arguments to the contrary. The question of who has the ultimate authority to interpret the Constitution was settled" in favor of the U.S. Supreme Court.
Even before the war, Kay noted, the argument that the U.S. Constitution represented a simple compact among autonomous states was "very controversial."
As early as 1819, he noted, the U.S. Supreme Court ruled, in McCulloch v. Maryland, that "the Constitution and the laws made in pursuance thereof are supreme" and control the constitution and laws of the states.
After the Civil War, the most serious attempts to invoke the states' power to resist federal law came in 1958, when Arkansas Gov. Orval Faubus refused to abide by the Supreme Court's ruling in Brown v. Board of Education and resisted an order to integrate Little Rock's public schools.
The court shot down Faubus' claims of interposition in 1958. An unusual unanimous decision signed by each justice individually stated explicitly that the court's ruling in the Brown case was "the supreme law of the land."
"This Court cannot countenance a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court's considered interpretation of the United States Constitution," the ruling stated.
Dean contends that that decision has been twisted by liberal law professors. She said she does not accept that the Supreme Court is the ultimate arbiter of constitutionality.
Jepsen, who is also a lawyer, and others say that could lead to chaos. If states can simply refuse to abide by the rulings of the Supreme Court, federal statutes themselves would become unenforceable, Jepsen said, and there would be nothing to stop states from seceding altogether.
"The point is that we have one Constitution and there needs to be one place that defines what that Constitution means," Jepsen said.
"Under nullification, any state legislature, any state governor could declare that a law is unconstitutional. That would send us onto a course where there would be 50 different unique interpretations of a federal statute."
"We would cease to be a united nation," said Jepsen, who denounced Dean's views as "extreme," and far removed even from those of conservatives such as the current majority on the court.
Dean said she didn't think her views would make all federal statutes unworkable. "That's something that gets worked out," she said. "It's been worked out in the past."
She added that she was not opposed to the desegregation efforts of Republican and Democratic presidents in the 1960s, which came over the objection of state governors such as Faubus. But, she added, "I don't think desegregation was really controversial aside from a few states in the South."
But a president today might have less luck enforcing federal laws than presidents Dwight D. Eisenhower and John F. Kennedy did when they sent National Guard and federal agents to enforce federal court orders, Dean said.
"At some level there's a practical component to whether you can send troops out to effectuate something, to do something if they don't want to do something," Dean said.
Kay insisted that position is outmoded and said Dean's vision of states nullifying federal statutes as a matter of scaling back the federal government "won't happen."
"In 1842? Very respectable," Kay said of Dean's views. "But since then, increasingly marginal."
"It was an argument not about what the Constitution requires," Kay said, "but about what the Constitution is. You can't just interpret the Constitution somehow to give you the answer. You've got to make a political decision."
That decision was the Civil War itself, said Kay, who then noted that the court had expressly ruled afterward, in 1869, that Texas remained a part of the United States despite its secession laws because the states do not have the right to secede from the union.
"The holding of the war, if you will, was, as they say in Texas v. White, that this was 'an indissoluble union of indissoluble states.' "
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