Judicial Review

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Former Arkansas Gov. Mike Huckabee disputed what he called the “notion of judicial supremacy” on Tuesday, arguing states would have the final say on gay marriage regardless of whether the Supreme Court rules that same-sex couples have a constitutional right to marry.

The idea of nullification has been tried over and over. Courts at the state and federal level, including the U.S. Supreme Court, repeatedly have rejected the theory of nullification. The courts have decided that under the Supremacy Clause of the Constitution, federal law is superior to state law, and that under Article III of the Constitution, the federal judiciary has the final power to interpret the Constitution. Therefore, the power to make final decisions about the constitutionality of federal laws lies with the federal courts, not the states, and the states do not have the power to nullify federal laws.

Nullification has never succeeded in United States history, and will not succeed this time despite the rantings of Huckabee. Andrew Jackson is the only President to openly defy the Supreme Court, and he has been vilified in history for doing so. In the 1832 U.S. Supreme Court decision Worcester v. Georgia, U.S. Supreme Court Chief Justice John Marshall, in writing for the court, ruled that Georgia could not impose its laws upon Cherokee tribal lands. Jackson is frequently attributed as responding to this decision by remarking, “John Marshall has made his decision, now let him enforce it.” Georgia refused to accept the Supreme Court’s decision. President Andrew Jackson did not believe Georgia had the right to nullify federal law, but was sympathetic to Georgia’s goal of forcing the Cherokees to relocate to the west. He took no immediate action against Georgia. Before the Supreme Court could hear a request for an order enforcing its judgment, the Nullification Crisis arose in South Carolina. Jackson wanted to avoid a confrontation with Georgia over states’ rights. A compromise was brokered under which Georgia repealed the law at issue in Worcester. Despite the Court’s decision finding Georgia’s actions unconstitutional, Georgia continued to enforce other laws regulating the Cherokees. Ultimately the Cherokees were forced to agree to a treaty of relocation, leading to the Trail of Tears.

However, Cherokee removal occurred in the 1930, when the Supreme Court was a relatively weak branch of the government. Since the 1830s, the power of the Supreme Court has grown to become an equal branch of government alongside the executive and legislative branches. Nullification and interposition resurfaced in the 1950s as southern states attempted to preserve racial segregation in their schools. In Brown v. Board of Education (1954), the Supreme Court decided that segregated schools were unconstitutional. At least ten southern states passed nullification or interposition measures attempting to preserve segregated schools and refusing to follow the Brown decision. The advocates of these nullification and interposition measures argued that the Brown decision was an unconstitutional infringement on states’ rights, and that the states had the power to prevent that decision from being enforced within their borders. The Supreme Court explicitly rejected nullification in the case of Cooper v. Aaron (1958), which directly held that states may not nullify federal law.

Huckabee, a conservative evangelical and potential 2016 presidential candidate, said a Supreme Court ruling, expected this year, would ultimately be moot because “one branch of government does not overrule the other two.” He could not be more wrong and needs a basic government lesson about checks and balances. Huckabee went on to say, “One thing I am angry about though … is this notion of judicial supremacy, where if the court makes a decision, I hear governors and even some aspirants to the presidency say, ‘Well that’s settled, it’s the law of the land.’ No, it’s not the law of the land.” Huckabee obviously does not understand judicial review.

“Constitutionally, the courts cannot make a law, they can interpret one and then the legislature has to create enabling legislation and the executive has to sign it and has to enforce it,” Huckabee added. While the U.S. Constitution does not explicitly define a “power” of judicial review (which is not making law), the authority for judicial review in the United States has been inferred from the structure, provisions, and history of the Constitution. In 1803, Marbury v. Madison was the first Supreme Court case where the Court asserted its authority for judicial review to strike down a law as unconstitutional. At the end of his opinion in this decision, Chief Justice John Marshall maintained that the Supreme Court’s responsibility to overturn unconstitutional legislation was a necessary consequence of their sworn oath of office to uphold the Constitution as instructed in Article Six of the Constitution.

A ruling from the high court, however, would not “make law,” but rather would invalidate existing bans on gay marriage as unconstitutional. State legislatures would need no additional law to recognize same-sex marriages. Similar appellate court decisions have already done so in 36 states and the District of Columbia — all of which now recognize same-sex marriages.

This isn’t the first time Huckabee has flirted with the theory of nullification. The comments place him on the far right of his party — even more so than Sen. Ted Cruz (R-Texas), a potential rival in the race for the White House. There are few things I can think of more disastrous than Mike Huckabee becoming president do the United States, however, I believe that idea is a moot point. Huckabee doesn’t stand a chance in an election. Just like many of the Republicans who have hinted at running, he has a bad problem of putting his foot in his mouth and coming across as just plain stupid.

About Joe

I began my life in the South and for five years lived as a closeted teacher, but am now making a new life for myself as an oral historian in New England. I think my life will work out the way it was always meant to be. That doesn't mean there won't be ups and downs; that's all part of life. It means I just have to be patient. I feel like October 7, 2015 is my new birthday. It's a beginning filled with great hope. It's a second chance to live my life…not anyone else's. My profile picture is "David and Me," 2001 painting by artist Steve Walker. It happens to be one of my favorite modern gay art pieces. View all posts by Joe

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