Arizona and nullification: star-crossed lovers

A state shouldn’t have the ability to unilaterally nullify federal laws that the people find unconstitutional.

Yet, Arizona Sen. Chester Crandell wants to allow people to do exactly that. The bill he has sponsored, Senate Concurrent Resolution 1016, aims to give Arizona the power to reject federal actions. If the people of Arizona “determine” that federal laws “violate” the U.S. Constitution, they may nullify those laws through citizen initiatives, referendums or any other available legal remedies.

This isn’t the first time this has happened, and it won’t be the last. Arizona has attempted several times to pass such legislation, and if this bill fails, there is no doubt legislators will propose another.

Proponents say that this restores states’ rights, in accordance with the Tenth Amendment.

Crandell claims that the Founding Fathers had a different vision of states’ rights than what is in place today.

Perhaps some of the founders had a different view of federalism, but it’s important to remember that there were numerous founders, all of whom held vastly differing opinions on the topic. It isn’t accurate to claim that there was any kind of consensus on the specifics of federalism at the time of the founding, just as there is no true consensus today.

Even then, saying that states can and should single-handedly reject federal legislation ignores almost all outstanding precedent and makes a mockery of the supremacy clause of the Constitution, which declares that all laws made in pursuance of the Constitution “shall be the supreme Law of the Land.”

If states can decide that laws are not made in pursuance of the Constitution, there is nothing stopping them from disregarding any federal law that they dislike by using the argument that it is unconstitutional. Our system of federalism could quickly degenerate into chaos through a lack of uniformity.

Above all else, the supporters of SCR 1016 fail to comprehend that as much as the founders wanted to limit the power of a centralized government, they also aimed to limit the influence of the general populace.

The Electoral College and original selection process of senators are just two demonstrations of just how much they feared that “mobocracy,” or tyranny of the majority, would prevail if individual private citizens had more influence.

It’s true that the education level of the average American has risen, and that is reflected in how voters now play a direct role in the election of their senators and president. We obviously think that people are now educated enough to participate in democratic politics.

Even with this general education, why should it be the people of Arizona that get to decide the constitutionality of federal actions? Are they really familiar enough with the Constitution and constitutional law to make these kinds of far-reaching decisions?

Allowing citizens to nullify federal laws through initiatives and referendums give them great power, and there is no guarantee that they have the kind of knowledge to determine if something is unconstitutional.

Constitutionality is not so simple a concept. We have hundreds of years of precedent, much of which can be used in favor of both sides of a case. As nice as it would be to hope that voters could understand things like the doctrine of incorporation or obscure precedent, most people have little to no experience with constitutional history and law — and those who decide what is constitutional should have extensive experience in that area.

It isn’t the place of the state Legislature or private citizens to decide thefinal constitutionality of an action. It is, and should remain, the role of the judiciary to determine constitutionality.

As perhaps the least partial of the three branches, the federal judiciary and the Supreme Court have the ultimate power to say “no.” It considers appeals and can even overturn previous decisions that it determines were wrongly decided. Even though states and administrations have ignored its decisions in the past, it retains more legitimacy with the people than the other branches.

As Chief Justice John Marshall said, “It is emphatically the province and duty of the Judicial Department to say what the law is.”

Let’s keep it that way.

 

Reach the columnist at jelanza@asu.edu or follow her at @jentrylanza

 

Want to join the conversation? Send an email to opiniondesk.statepress@gmail.com. Keep letters under 300 words and be sure to include your university affiliation. Anonymity will not be granted.