Bench Memos

Madison, Jefferson, and Roy Moore?

Alabama chief justice Roy Moore, no stranger to controversy, has announced that he will continue to enforce state marriage laws in the face of a federal district court ruling against those laws.

We are so accustomed to the myth of federal judicial supremacy that Moore’s action seems clearly beyond the bounds. But is it?

As it happens, I recently read the galley version of an excellent new book, The Constitution: An Introduction, co-authored by law professor Michael Stokes Paulsen and his son Luke Paulsen. The Paulsens carefully address the Virginia and Kentucky resolutions that  James Madison and Thomas Jefferson drafted in opposition to the federal Alien and Sedition Acts. (They also discuss John Calhoun and the nullification crisis.) By those resolutions, the Virginia and Kentucky legislatures each declared the Alien and Sedition Acts unconstitutional and declared their resistance to them. The Paulsens conclude that the state legislatures went too far in asserting or implying that they had “the power to interpret the US Constitution in a way that binds the nation as a whole.” (Emphasis added.) But they offer an important limited defense of the resolutions:

Madison and Jefferson were right that state authorities have the right and duty to resist unconstitutional actions of the national government…. [T]he proper answer is that state government actors are legitimate constitutional interpreters, but not supreme ones.… It is therefore not at all outlandish to think that officers and instrumentalities of state governments possess an independent power of faithful constitutional interpretation—the power to interpret the Constitution (to borrow President Jackson’s words on a later occasion) as they understand it, “not as it is understood by others.” [Emphasis in original.]

The Alien and Sedition Acts were actions of Congress, whereas Moore is resisting the ruling of a federal district judge. But that distinction, insofar as it matters at all, ought to cut in Moore’s favor. (Or are we so besotted by the myth of federal judicial supremacy that we think a single federal judge deserves more respect than Congress?)

According to a paraphrase, the attorney for the plaintiffs challenging Alabama’s marriage laws asserted that “the Supremacy Clause in the U.S. Constitution provides that when a federal court with the proper jurisdiction rules that a state law is unconstitutional that state officials are bound to abide by the ruling.” But what the Supremacy Clause actually provides is that the “Constitution”—not the federal judiciary’s mistaken interpretations of it—“shall be the supreme Law of the Land” and that “the Judges in every State shall be bound thereby.”

To be clear: I don’t know that there is any easy way to sort out when it is proper or sensible for a state official to exercise the right to resist actions of the national government that the official regards as unconstitutional. But the assumption that exercise of that right is always wrong seems highly questionable.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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