A few days ago I broke down a case from the Ninth Circuit permitting sectarian prayers at the opening of city council meetings for a city in California. In 2011, the Fourth Circuit reached the opposite conclusion with respect to a North Carolina county. And some legislators in North Carolina are hopping mad, and they’ve resolved to do something about it. Something with a lengthy historical pedigree, something which raises the hairs on the back of my neck in wariness.
The proposed resolution (not yet passed into law) called H494 isn’t actually anything particularly new or novel. It’s part of a movement that seeks to revise the existing understanding of the Supremacy Clause and the Tenth Amendment. While backhandedly apologizing for the association of the doctrine of nullification with the historic evil of slavery, contemporary nullification advocates insist that the legal maneuver of a state interposing its local veto on Federal laws remains a viable component of the Constitution.
I’ve seen this movement before. Fringe stuff, usually. It got some prominence during the debate about Obamacare, but this is the first time I’ve seen this idea deployed in pursuit of alloying religion and government.
Why do I call this “fringe stuff”? Because there is ample law, in the Constitution and in caselaw interpreting it, establishing that a state may not simply override a Federal law. Let’s start with the text of the U.S. Constitution itself:
This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding. U.S. Constitution, Article VI.
While nullification advocates have been taught how to do a glib tap dance when that part of the highest law of the land is raised, in my opinion, the Supremacy Clause is an ace serve. A state’s legislature may modify a state’s constitution or laws, but it may not do so in a manner which contravenes Federal law, including the Federal Constitution. And it turns out I’m not the only one to think this and this school of thought also has a lengthy historical pedigree — and a stronger legal one.
The decisive blow to the doctrine of nullification came in 1859, at the hands of none other than Chief Justice Roger Taney, in support of the Fugitive Slave Act. The state of Wisconsin had, through its Supreme Court, purported to nullify the Federal Fugitive Slave Act so as not to return escaped slaves, and the Supreme Court said, “No way. Federal law is Federal law, which means it’s the same everywhere, even if you don’t like it, Wisconsin.” Well, I’m paraphrasing rather freely there. What the Court actually said was quite a bit lengthier:
…the supremacy thus conferred on this Government could not peacefully be maintained unless it was clothed with judicial power equally paramount in authority to carry it into execution, for if left to the courts of justice of the several States, conflicting decisions would unavoidably take place, and the local tribunals could hardly be expected to be always free from the local influences of which we have spoken. And the Constitution and laws and treaties of the United States, and the powers granted to the Federal Government, would soon receive different interpretations in different States, and the Government of the United States would soon become one thing in one State and another thing in another. It was essential, therefore, to its very existence as a Government that it should have the power of establishing courts of justice, altogether independent of State power, to carry into effect its own laws, and that a tribunal should be established in which all cases which might arise under the Constitution and laws and treaties of the United States, whether in a State court or a court of the United States, should be finally and conclusively decided. Without such a tribunal, it is obvious that there would be no uniformity of judicial decision, and that the supremacy, (which is but another name for independence) so carefully provided in the clause of the Constitution above referred to could not possibly be maintained peacefully unless it was associated with this paramount judicial authority.
Accordingly, it was conferred on the General Government in clear, precise, and comprehensive terms. It is declared that its judicial power shall (among other subjects enumerated) extend to all cases in law and equity arising under the Constitution and laws of the United States, and that, in such cases, as well as the others there enumerated, this court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as Congress shall make. The appellate power, it will be observed, is conferred on this court in all cases or suits in which such a question shall arise. It is not confined to suits in the inferior courts of the United States, but extends to all cases where such a question arises, whether it be in a judicial tribunal of a State or of the United States. And it is manifest that this ultimate appellate power in a tribunal created by the Constitution itself was deemed essential to secure the independence and supremacy of the General Government in the sphere of action assigned to it, to make the Constitution and laws of the United States uniform, and the same in every State, and to guard against evils which would inevitably arise from conflicting opinions between the courts of a State and of the United States, if there was no common arbiter authorized to decide between them. Ableman v. Booth, 62 U.S. 506, 517-519 (1859).
I know, TL/DR. Chief Justice Taney is a deeply ambiguous and hugely important figure in the Supreme Court’s history, but a master of pithy prose he was not. His long passage from Ableman has the benefit of recalling the legal, political, and governmental chaos that was the United States governed by the Articles of Confederation, which is the reason the Constitution was implemented in the first place. And deeply flawed though he was in many ways, Taney was always quite clear that he followed in his predecessor’s footsteps in insisting that the Supreme Court was just that, supreme.
Hopefully, we can all agree that slavery was odious and the Fugitive Slave Act was one of its odious legal implements. We need not praise, endorse, or affirm slavery in order to realize that Taney was right about the underlying point — states can’t pick and choose what Federal laws they will comply with and which ones just aren’t in effect. If that were the case, we’d have no national government at all; we’d be back to the Articles of Confederation.
So I’ll offer modern nullification advocates a rhetorical compromise: I won’t accuse you of legally defending a possible return to slavery if you won’t accuse me and my fellow nullification opponents of the same thing. We believe in the principle of charitable interpretation around here, and that’s an application of it.
And we don’t have to rely on a case of highly suspect moral foundation of nullification’s falsity anymore, since the Supremacy Clause was vindicated more recently in service of racial integration. In Cooper v. Aaron, 358 U.S. 1 (1953), the state of Arkansas, acting through a school district in Little Rock, unilaterally interposed a delay on court-ordered desegregation. Very generously, the Supreme Court said that the school district was acting in good faith because integration was indeed logistically difficult. It was less kind to the Arkansas Legislature, which had created state-level statutory obstacles to it, but the result was the same: nullification and interposition are out. They are inconsistent with the Constitution, particularly the Supremacy Clause and the Fourteenth Amendment.
Where the nullification movement has its strongest intellectual play is in questioning the validity of the incorporation doctrine. The Fourteenth Amendment is not explicit about the concept of incorporation. Traditionally, this doctrine is traced back to the case of Gitlow v. New York, 268 U.S. 652 (1925) although some see its basic origins in Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897). CB&Q Railroad addressed takings, finding that when a state condemns land, basic notions of due process in the Fourteenth Amendment require that it pay fair market value despite the lack of any explicit state law requiring it do so; Gitlow addressed publication of an anarchist manifesto that ran afoul of state antisyndicalism law.
Now, there is little serious contention other than that the Fourteenth Amendment does apply to states:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. Const., Amend. XIV, Sec. 1.
But the manner in which this language was used as the “hook” for applying the Federal Constitution’s First Amendment to protect the speech in question was done with surprisingly weak language in by the Gitlow Court:
For present purposes we may and do assume that freedom of speech and of the press-which are protected by the First Amendment from abridgment by Congress-are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States. We do not regard the incidental statement in Prudential Ins. Co. v. Cheek, 259 U.S. 530, 543 , 42 S. Ct. 516, 27 A. L. R. 27, that the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as determinative of this question. Gitlow, 268 U.S. at 665.
Justice Harlan, writing for the Gitlow Court, assumed that free speech is a liberty interest, and therefore that it is subject to the due process clause of the Fourteenth Amendment. While I think the reasoning is right — free speech is indeed a liberty protected by the Constitution — I’d have preferred to see a more robust intellectual foundation laid for that concept. That foundation got back-filled in with later case law to my satisfaction, but by then the doctrine had already been put in place.
So the sponsors of North Carolina’s law look back to John Marshall’s proclamation in Barron v. Baltimore 32 U.S. (7 Pet.) 243, 250 (1833) that the Bill of Rights does not apply to the states, and the Tenth Amendment dovetails to support that idea:
[The Bill of Rights] demanded security against the apprehended encroachments of the General Government — not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress and adopted by the States. These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.
If Gitlow’s interpretation of the Due Process clause of the Fourteenth Amendment is wrong, then Marshall’s opinion in Barron v. Baltimore is still right, and the Bill of Rights does not apply to the States, and the proposed resolution declaring that North Carolina can Establish a state religion if it chooses to do so and its own Constitution does not forbid it, is in all likelihood legally correct.
On the other hand, if the First Amendment has been incorporated to the states via the Fourteenth Amendment’s Due Process Clause, then, North Carolina may not Establish a religion, and the Fourth Circuit’s opinion indicating that the use of sectarian prayers is an Establishment is binding law restricting the ability of the state government and its subdivisions to thus pray by virtue of the Supremacy Clause, until and unless that ruling is overruled.
So that’s the pressure point — does the incorporation doctrine hold intellectual water?
Ultimately, in order to say that it does not, you have to either 1) say that free speech is not a “liberty,” or 2) focus exclusively on the “states” language in the Tenth Amendment, and ignore that powers are also reserve to “the people” as well as ignoring that the people, directly and exclusively, reserved all unenumerated rights to themselves in the Ninth Amendment.
Regular Readers may recall that I have gone to some pains in the past to distinguish “rights” from “powers.” People have rights, governmental entities have powers. A “right” is the ability of an individual to act autonomously and without interference or reprisal by the government. “Power” is the ability of a governmental entity to restrict, control, or prohibit individuals from engaging in certain kinds of actions. Necessarily, where rights end, powers begin. There are reasons I go through this intellectual work when I approach Constitutional law.
One of those that is because something like free speech, or freedom from an Established religion, is vulnerable to attack from all levels of government, not just Federal. The Revolution was undertaken, at least ostensibly and I still believe that it was undertaken with a strong degree of sincerity, to vindicate individual rights. The Framers were intellectually steeped in the legal and philosophical concept of “natural rights” inherent in the human condition; the Declaration of Independence is a ringing endorsement of them (particularly as applied to the sphere of fair criminal procedure); and the Constitution and subsequently the Bill of Rights were drafted to create a government which would not extend its power into them.
I need not embrace the concept of inherent natural rights (a philosophical matter upon which I am presently agnostic) to fully embrace the concept that as a culture, one of our most enduring ideals is that however they are derived, individual people have these rights and the basic purpose of the government is to protect them. Should the government intrude upon them instead through the overreach of its powers is a perversion of the reason the United States of America exists in the first place.
If free speech is a right that inures to an individual, then the government at all levels exists for the purpose of protecting that right. The government at all levels needs to have a damn good reason for exercising its power upon that right. The vehicle for the government to demonstrate that damn good reason, if one exists, is “due process.” An articulation of a justification for the restriction of an individual’s autonomous actions, called a “charge.” An opportunity to rebut the truth of that charge and the validity of the justification, with assistance of legal counsel and the ability to present evidence, at the option of the individual whose autonomy is to be restricted. A test of the truth of that charge and the validity of the justification before a disinterested and fair decision-maker. Enforcement of the result of that decision regardless of the degree to which that decision pleases the authorities. And wherever possible, all of this occurring before the individual’s autonomy is actually restricted.
If we are going to say free speech is a right inuring to an individual then we must say that, if nothing else, the Fourteenth Amendment means that an individual whose free speech is to be restricted is entitled to due process before that happens. Which means Justice Harlan was right — free speech is indeed a liberty, a freedom, a right — and therefore it is a limit on the extent of a state’s power, not just the Federal government’s power. Incorporation is justified. Incorporation becomes an inevitable, inescapable outgrowth of the basic concept of limited government.
Which is why I conclude that North Carolina’s H494 is a proposal to declare the Constitution and the Union invalid. If North Carolina can opt out of Federal laws it doesn’t like, then it can opt out of the Fourteenth Amendment nor the Supremacy Clause when it doesn’t like them, either. That makes North Carolina an autonomous sovereign nation unto itself, which is simply not the case, and that is why this sort of bill disturbs me. States are important, and the history of states as having once been very much like (although never quite exactly the same as) autonomous sovereign nations is significant too. But it is manifestly not the case that states are autonomous sovereign nations now.
H494’s authors may sincerely think they’re protecting the rights of public officials to worship as they choose (see my earlier point that “City Hall is not a church” about that) and I’m not going to suggest that they’re advocating a return to the days of slavery just because they’re relying on a doctrine that was used to defend slavery in the historical past. They are playing with a different kind of fire than that, although it is still fire and it is still very dangerous and I am far from convinced that they understand what they are doing. Charitably, I’m pretty sure nullification advocates don’t want another Civil War, but they may want the United States to legally and peacefully transform into something more like the European Union or Canada.
But even ascribing those best of intentions to them, they are nevertheless re-opening the structural legal arguments which have been refuted, time and again, over the course of American history from the Framing of the Constitution forward, and which should have been considered finally and completely resolved after four years of bloody, awful Civil War. To the extent that there was any residual validity to the Constitutional claim that states have the power to nullify Federal laws, that ship sailed a long time ago, and I say the port should be closed to its return.
Is nullification heresy to the modern Constitutional scholar, to the modern patriot? Yeah, it kind of is. The United States is one nation indivisible, not fifty nations confederated, and it has been so since 1789. Let us hope, then, that H494 dies an unlamented death in committee and does not become Zombie John Calhoun, risen from the grave to once again proffer the tissue of justification for those who would bend local governments to behave lawlessly.