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The last few years of Federal government growth into unconstitutional areas has brought back an idea long thought retired from the political lexicon: the concept of "nullification." Nullification happens when a state passes a law explicitly contrary to a Federal law on the same subject, and particularly when that law explicitly requires state officials to obey the state law and not the Federal one.
Nullification is often blamed on the Right, but there are nullifying laws on both sides of the political aisle: the legalization of marijuana, so beloved of the Left, is a prime example of nullification at work. Federal law criminalize the possession, production, and distribution of marijuana absent a Federally-authorized and very rare doctor's prescription; states like Oregon and Washington which have legalized pot are directly attempting to nullify Federal laws to the contrary.
By its very nature, nullification causes a collision of powers. A pot dispensary in Oregon can be perfectly legal under the laws of the state, even fully licensed and taxed, and yet, by virtue of Federal law, it's prone to having the DEA SWAT team smash down the doors and haul everyone off to the pen. The owner and his customers are safe from interference only as long as the DEA has bigger fish to fry or the administration is sympathetic.
The current administration seems to be at least generally tolerant of marijuana legalizations. What about evasions of Obamacare? South Carolina's legislature is currently moving forward with a bill banning any enforcement of Obamacare regulations or taxes.
It could be worse: the original version of the bill criminalized any Obamacare enforcement. In theory, this would require the South Carolina state troopers to arrest IRS agents coming to collect fines for not having health insurance, any HHS bureaucrats unlucky enough to be sent to South Carolina for audits - who knows, maybe even Mr. Obama himself on a campaign stop? It's a shame this section didn't stick around as the fireworks would have been amusing.
But the point is, on Obamacare, on marijuana, on guns, on an increasingly wide and bipartisan array of issues, states are registering their objections to Federal overreach. Of course, none of this means anything, as the Constitution clearly says that Federal law always trumps state law.
Or does it?
On the face of things, legal scholars are right: the Constitution is "the supreme law of the land" and Federal laws overrule state ones.
However, the Constitution was written to grant specifically enumerated powers to the Federal government, and as conservatives are pointing out with increasing force, the Tenth Amendment to the Bill of Rights explicitly make that plain:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Where exactly does the Constitution grant Congress the power to regulate agricultural products like pot which are grown, sold, and consumed within a state? What about medical services which, again, are generally delivered between a doctor and a patient who reside in the same state? Doctors don't get their medical licenses from the Federal government, they get them from the state in which they practice. If they want to practice in several states, they have to be licensed separately in each.
The Constitution nowhere gives Congress or the Federal government power over these things; alas, ever since the 1930s nobody has much cared. If the Supreme Court says it's OK, as it almost always does, who's to say any different?
The states, that's who.
Another forgotten aspect of our Constitution is exactly who agreed to it. Yes, it starts out with "We, the people of the United States," and indeed it is an agreement between the people and their government, but it's more than that. It is an agreement between the States themselves and the Federal government.
Put another way: the federal government has powers only because the states, in ratifying the Constitution, agreed to delegate those powers to the federal government. That's why the powers not listed in the Constitution don't automatically default to the Feds; they go back to their natural home, the people themselves or the States.
When the Constitution was originally set up, both these parties were represented in Congress: the people elected Representatives, and the states elected Senators. We talk about states electing senators today, but they don't: in 1913, the 17th Amendment made Senators elected directly by the people, just like Representatives.
This was a major change: prior to 1913, Senators weren't answerable directly to the people of their state. They were answerable to the politicians in their state's legislature.
Why is this important? Think about all the "unfunded mandates" that the Federal government has imposed on the states, from rules on what benefits you must give to poor people to regulating how many handicapped parking spaces must be set aside in a striped parking lot to requiring that states provide free education to illegal immigrants and translations of government services into all the languages of the world. These things cost money, time, and effort, none of which is provided by the Feds; they just lay down the requirement and expect states to comply without complaint.
Is it likely that these mandates would have been supported by Senators answerable to the states legislatures that had to somehow come up with the money to pay for them? Hardly! But individual voters don't particularly care which level of government is doing or paying for what; if the law "seems like a good idea" nobody pays much attention to the details.
By eliminating the Senators as the representatives of their state governments, the progressives of 1913 eliminated the only direct check on Federal power that the states had. Since then, the Feds can command whatever they like, and there's not much that a state can do about it.
Which is why the question of nullification laws has arisen once again. In the pre-Civil War disputes over slavery, nullification laws were more or less a sore-loser strategy: the Southern states had a fair opportunity to block laws they didn't like in the Senate using their own Senatorial representation; they failed to do so; and they refused to accept the majority vote.
Today, the state governments no longer have a vote. In effect, the states as political entities are being taxed and regulated without representation. How can they stop their long-term slide into irrelevance and powerlessness?
There's only one way: by refusing to obey the laws that encroach on their proper spheres of control, and by using what power they have left to make sure those laws cannot be enforced. In other words, to nullify them.
What will be the issue that creates an open breach between the states and the Federal government?
Will it be on immigration, with South Carolina and Arizona resisting the Federal government's demand that they permit themselves and their citizens to be overrun by illegal aliens?
Will it be on gun rights, with Wyoming claiming the right to authorize whatever firearms it pleases without regard to Federal law, so long as they are manufactured, sold, and possessed entirely within the state of Wyoming?
Will it be on abortion, with more and more states trying to restrict or ban that gruesome practice to the maximum degree they can, against an administration in Washington that believes in abortion right up to (or perhaps a little while following) the moment of birth?
Will it be on drug legalization, with many states fed up at the cost in money, lives, and civil liberties that the War on Drugs has brought about while absolutely failing to stem the tide of mind-altering substances?
Will it be on Obamacare mandates, regulations, taxes, or other impositions?
Or will it be on some issue nobody anticipates, that comes as a complete surprise?
Leading up the Civil War, there were basically two primary bones of contention between the North and the South: slavery, obviously, and America's tariff-based tax structure which limited international competition between manufacturers, benefitting the North's factories but causing higher prices in the agrarian South. Today, there is a whole panoply of strife between states of a conservative and liberal bent, and between states that want to do things their own way and the Federal government that seems to want absolute control of everyone and everything.
It may be accurate to say that nullification laws are unconstitutional. But by eliminating Senators as representatives of their state's legislature, the 17th Amendment has left states no other way to exert their power - aside from recourse to arms, of course.
Almost anything is better than that, but we say "almost." The traditional American view is that it's better to die on our feet than live on our knees.