05/30/2010 05:12 am ET | Updated May 25, 2011


Fourteen state Attorneys General have indicated their determination to challenge the recently-enacted health care legislation on the grounds that their states have pre-empted federal action. Why is it no surprise that all these officials are Republicans?
Constitutional law, as understood and implemented for more than two centuries, trumps the AGs' contentions. Article VI, Section 2 provides that "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, . . . 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." [Emphasis added]
The "supremacy clause" is a clear command. It emphasizes the paramount authority of the Constitution, national laws, and treaties over state laws; for good reason, it has been called the linchpin of our constitutional system. The clause has been the basis for national preemption of authority over the states in a variety of matters, including laws passed under the regulation of commerce or the general welfare clauses. The provision for judicial enforcement buttressed arguments in behalf of the judiciary's special role in interpreting the Constitution. No court with final authority has failed to recognize the imperatives of the clause. It is unlikely the politically-motivated state officials - and their political allies in and out of government - will reverse that path of American constitutionalism.
The AGs certainly must remember their oaths of office. All officials, federal and state alike, must fulfill the constitutional requirement (Article VI, Section 3, following the supremacy clause) to take an oath to support the Constitution. Our obstructionist Attorneys General, too, are obligated to pledge allegiance to national supremacy.
Utah's AG, one of the leaders in proposing the suit, seemed to be whistling in the dark; still, he held out some hope for success when he spoke of "this" U.S. Supreme Court -- which is barely-disguised code language for the hope that Justice Anthony Kennedy will support their position. (It would be interesting to watch Justice Antonin Scalia work around his always-certain knowledge of "original intention.") At bottom, the Utah official forcefully asserted that the federal government cannot require people to buy insurance. Oh? Surely he knows how to spell "Medicare."
After the Republican Party pledged to repeal the Social Security Act in the 1936 election - and carried only 2 states -- opponents went to the Supreme Court the next year. But the Court, in a 5-4 decision, upheld the taxing provisions of the law ("Congress . . . may lay and collect taxes . . . to . . . provide for the . . . general welfare." U.S. Constitution, Art I, Sec.8.) The Court summarily dismissed arguments that the law encroached on state powers and sovereignty.
The constitutional history of national authority is clear: states may not nullify or overturn a federal statute.
In 1798, the Sedition Act aroused intense political strife. Thomas Jefferson, then the Vice President of the United States, and his longtime political ally, James Madison, covertly led the debate, and they wrote the Kentucky and Virginia Resolutions opposing the Act. The Act generated very real fears of government prosecution, and political protest could be readily punished by national authorities. But the federal courts had refused to consider the law's constitutionality, in effect a victory for those who defended the act.
The Kentucky and Virginia legislatures expressed a "warm attachment" to the Union and to the national government's "legitimate powers." But they insisted that the Union had been forged as the agent of sovereign states, which were obligated to challenge congressional laws when they exceeded or contravened the "authorized grants enumerated" in the Constitution.
Jefferson believed the Sedition Act unconstitutional because the First Amendment prohibited national regulation of speech; only the states could regulate speech, religion, and the press, he said. (Yes, he meant that states could circumscribe freedom of speech and press.) The protests called for the state legislatures, in their sovereign capacities, to check national abuses through "interposition" and declare the law unconstitutional. The Kentucky and Virginia Resolutions concluded with a call to other states to follow their lead.
Other states did not, and the doctrine of interposition faded for several decades as national power and authority substantially increased - ironically under Presidents Jefferson and Madison. But the growing development of sectionalism, especially with the massed political power of the pro-slavery states, revived the idea as a means for insuring the protection of one section's "peculiar institution." John C. Calhoun, like Jefferson, a onetime Vice President and then Senator (D-SC), appropriately characterized as the "Marx of the Master Class," resurrected Jefferson and Madison's basic ideas, and turned them to their logical conclusion of full-blown state sovereignty theory, loaded with the doctrines of nullification, and ultimately, secession.
The history of state resistance is a minor stream of the past; states never have successfully mounted a challenge to federal supremacy. The attempts to do so occurred before 1860, at a time when a variety of centrifugal forces - political, economic, and social -threatened the integrity of the Union. But the force of arms in the Civil War assured the triumph of American nationalism, cementing the bonds of nationhood. The dubious doctrines of nullification disappeared into the ashcan of history. Calhoun, however, occasionally is resurrected, and now appears in the Republican guise of Sen. Jim DeMint (R-SC), who has reached into the ashcan to resurrect state interposition against the new health care law.
John Marshall, our first great Chief Justice, and a man intimately related to the ratification of the Constitution, methodically dissected and rejected notions of state sovereignty and interposition in an 1821 opinion. Marshall realized the stakes if such doctrines prevailed. With words today's state attorneys general might ponder, Marshall said that "America has chosen to be, in many respects, and to many purposes, a nation . . . . The people have declared that in the exercise of all powers given for these objects, it is supreme." He concluded by citing the "supremacy clause:" "These States are constituent parts of the United States. They are members of one great empire - for some purposes sovereign, for some purposes subordinate."
Marshall in his time preserved the "mystic chords of memory" that bound the nation, as Lincoln said. We have the obligation to preserve them - unless as Marshall conceded, we choose to exercise our inalienable right of revolution and overturn the Constitution.
Pity that our state Attorneys General have chosen to turn a blind side to the history of the Constitution and federal supremacy. They belong to that long ago abandoned path of politically-motivated attempts to defy national laws and the Constitution. Their action is embarrassing; they
offer only political theater to an angry crowd, easily led and filled by such demagoguery; worse, it undermines the very Constitution they have sworn to uphold.
Stanley Kutler is the author of The Wars of Watergate, and other writings.