Magazine | March 21, 2011, Issue

Letters

Constitutional Nullities

Allen C. Guelzo asks “just what it is that modern nullificationists don’t understand about supreme,” referring to Article VI of the Constitution and the “supremacy clause” (“Nullification Temptation,” February 21).

What do the non-nullificationists fail to understand about the words “in pursuance thereof,” which appear in the same clause and limit the federal government’s supremacy to laws that were made pursuant to the Constitution?

Pamela K. Grow

Rolla, Mo.

Allen C. Guelzo replies: “In pursuance thereof” was intended only to recognize that, at the time of the Constitution’s adoption, no body of legislation had yet been made under the Constitution; notwithstanding, the Founders wanted it understood that these laws, and not just the text of the Constitution itself, would enjoy “supremacy.” Hence, in the event of a conflict between federal and state statutes, the federal statute is understood to have primacy (this is sometimes called “preemption”). Only a judicial finding that the federal statute is unconstitutional would vacate its authority.

“In pursuance thereof” is not a blank check, handed to anyone and everyone who would like to raise an objection to a federal statute because, in his view of things, the statute does not pursue the same goals as the Constitution. That determination lies in the hands of the courts, under the principle of judicial review laid down in McCulloch v. Maryland in 1819, and has been applied specifically to the question of preemption in Hines v. Davidowitz (1941) and Crosby v. National Foreign Trade Council (2000).

It also should be said that the Founders did not stumble into this accidentally. The supremacy clause was written by an anti-Federalist, Luther Martin, whom we might presume to have entertained a few anxieties about an overmighty federal government. If the Founders had wanted to grant nullifying power — to the states or any other body — they would have had more than sufficient opportunity to include it in the Constitution, and more than enough voices demanding such a thing (Charles Pinckney, for starters). That they did not is, it seems to me, sufficient evidence of the wisdom of the Founders on this point. The argument, then, is not with me or even with the federal government, but with the Founders themselves.

Questionable Technique

Your March 7 cover caricature of Tim Pawlenty is holding his hockey stick incorrectly. Is that intentionally symbolic of . . . something? Or is the usually percipient Roman Genn simply not a hockey fan?

Steve Hunziker

Saint Paul, Minn.

Roman Genn replies: Roman Genn does not get paid a lot and has to buy tickets to crappy seats. From which he cannot see many details of the game.

NR Staff — Members of the National Review editorial and operational teams are included under the umbrella “NR Staff.”

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