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10th Amendment Center
A commenter on a recent article taking apart Heritage Foundation objections to nullification presented by Dr. Matthew Spalding presented yet another attack on the doctrine by another prominent conservative scholar.
The reader said she watched a video by Edward J. Erler, a professor of political science at California State University, San Bernardino, and a senior fellow of the Claremont Institute. The video featured a talk on the Second Amendment presented by Hillsdale College’s Kirby Center. After watching the video, the reader sent Erler an email asking about his views on nullification.
They didn’t prove particularly favorable.
The supremacy clause makes the Constitution the supreme law of the land as well as all laws and treaties made in pursuance of the Constitution. Who judges when the laws are constitutional or not? The tenth amendment “supporters” say the states because the states ratified the Constitution. This is not true: the Preamble says “We the people do establish and ordain this Constitution” not we the people of the States.
This argument reveals the heart of the conservative objection to nullification. To embrace nullification, one must reject the Alexander Hamilton – Joseph Story – Abraham Lincoln notion of “one nation” made up of “one people” and accept that the states remain sovereign political societies, only delegating specific powers to a general government for the purpose of a union.
Erler gets the most fundamental point correct. The people stand as the sovereign in the system. No government possesses sovereign powers. Governments only exercise powers delegated to them by the people. So when we talk about “state sovereignty,” we simply mean that the state government has the exclusive authority to exercise certain powers delegated by the sovereign people of the state. In other words, no other constituted political society can intrude upon those powers within the borders of that state.