By Douglas V. Gibbs
I have looked behind Superman's Cape, and I am not sure I was happy with what I saw. Hillsdale College has always stood as a beacon of truth in regards to the Constitution, and surely the president of the institution, Dr. Larry Arnn, would encompass that truth in a manner that I could only stand in awe of. Then, when I interviewed Dr. Arnn on my Constitution Radio with Douglas V. Gibbs program on KCAA 1050 AM on Saturday, I realized that as much as I respect the man, the flaws in his thinking regarding the Constitution were extensive. I wrapped the hour long interview up in disappointment, but I was a wiser man in regards to how I view my constitutional superheroes.
Dr. Arnn argued with me about Judicial Review, claiming it is implied by the Constitution. Implied Powers, however, was a concept created by Alexander Hamilton with the specific intention of using it to usurp the Constitution. As for the constitutionality of Judicial Review, the power is expressly granted no place in the Constitution to the federal courts. The power was seized by the courts in an opinion by Chief Justice John Marshall in the 1803 Marbury v. Madison case. Since the Supreme Court is a part of the federal government, and determining if a law is constitutional is the determination of authority in regards to the federal government, Judicial Review by the federal courts is literally the federal government deciding for itself what its own authorities are. When I then presented to Dr. Arnn that as a result of Judicial Review, in the case of Obamacare, since we have four conservative justices (Roberts, Scalia, Alito, and Thomas) and four liberal justices (Ginsburg, Breyer, Kagan and Sotomayor), the fate of over 300 million people's health care lies on the shoulders of one man, Justice Kennedy, he remained silent.
Another bone of contention between Dr. Arnn and myself regarding the Constitution was the State power of Nullification. He argued against nullification, claiming it is unconstitutional, and that in fact the founders were against it. He referred to Madison's Federalist 36, which in my opinion did not make the argument Dr. Arnn claimed, and he also brought up the Nullification Crisis of 1832 between President Andrew Jackson and South Carolina's 1832 Ordinance of Nullification and Vice President John C. Calhoun. Then, when I used Jefferson's draft of the Kentucky Resolution, Dr. Arnn replied that the word nullification was not even present in that document.
In the case of Jackson and Calhoun, the determination was not against nullification in general, but that South Carolina was nullifying a completely constitutional law. As for Jefferson's draft of the Kentucky Resolution, Dr. Arnn is correct, the word nullification is not used, but the whole point of the resolution was that Kentucky was nullifying what the State believed to be an unconstitutional federal law. Jefferson's essay, despite Dr. Arnn's claim, was all about nullification. In the essay, Jefferson wrote, "Whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force."
Furthermore, by taking nullification away from the States, Dr. Arnn is handcuffing them, giving the federal government the power to do as it pleases, without consequence from the States, and then also giving the federal government the opportunity to justify its actions through its own courts using Judicial Review.
Hardly the limiting principles the Constitution was equipped with.
Also contrary to Dr. Arnn's opinion, the federal government was created to serve the States, not rule over them.
-- Political Pistachio Conservative News and Commentary
Myth #22: The Federal Government has Implied Powers that are not Specifically Enumerated by the Constitution - Political Pistachio
Obama, Health Care, and the Nine Justices - Political Pistachio
Myth #4: The Supreme Court interprets the Constitution, and can decide if a law is Constitutional or Not - Political Pistachio
Understanding the States' Right of Nullification: Thomas Jefferson's Draft of the Kentucky Resolution - Political Pistachio
Heritage Gets it Wrong: Nullification is NOT Unconstitutional - Tenth Amendment Center Blog
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