Nullification again

As I’ve previously commented, Nullification is the legal argument that the Sovereign States have the right to invalidate (nullify) any federal law which the state has deemed unconstitutional. This is based on the fact that that the sovereign states created the Union, after they formed the Continental Congress and fought (and won) a revolution, after they tried the unwieldy Articles of Confederation, and after they wrote and adopted the compact called the Constitution of the United States. As such, the separate states are the ultimate authority on deciding the limits of federal power. Nowhere in the Constitution do I find anything that says the states ever surrendered that authority! Thomas Jefferson and James Madison, both authors of our Constitution, argued that the states are the ultimate interpreters of the Constitution and can "interpose" to protect state citizens from the operation of unconstitutional national laws. Under this legal concept, the States and not the Federal Bench, are the ultimate interpreters of the extent of the national Government's power. A somewhat more extreme step towards enforcing state sovereignty is the related action of secession, by which a state ends its affiliation with the Union.
In a unanimous 1958 ruling, the Supreme Court wrote that states were bound by the Constitution's Article VI, mandating that U.S. laws, when vetted by justices, "shall be the supreme law of the land." While I’m certainly not a legal authority, I seriously question the right of the Federal Bench to proclaim their authority over an inferred right of the soverign states! While the concept of nulification is a little used tool in our nations legal system, it has, over the last couple of centuries, been brought to the forefront in various legal arguments, most notably in 1828 by John C. Calhoun, then vice-President of the United States, in arguing against the tarriff bill of that year. Calhoun argued that the individual states had retained the right to veto any act of the federal government that violated the Constitution. Jefferson and Madison argued that if the federal government had the right to judge the extent of its powers it will continue to grow, regardless of elections, the separation of powers, and other limits on government power. In an effort to retain their power, the Supreme Court rejected the idea of nullification, determining that state governments had no power to nullify federal law, either openly by state legislators, state executive, or judicial officers, nor can federal law be nullified indirectly by them through evasive schemes.
We commonly speak of keeping our federal government strictly limited. To that end, the United States has a written Constitution which specifies the rather short list of those powers entrusted to the federal government. Additionally the Tenth Amendment makes it quite clear that any power not specifically granted to the federal government resides in the states, period, end of sentence. That is all well and good, but how do we restrain a government that is (following what seems to be a law of nature) always trying to expand its powers? The framers of the Constitution were well aware of the tendency for power to concentrate and expand, leaving Jefferson to often speak of the calamity that would result if all power were vested in the federal government.
The Constitution is a barrier to such tendencies, but no constitution can enforce itself. Checks and balances also provide little guarantee of limited government, since the three federal branches can simply unite against the independence of the separate states and the rights of the people, which is precisely what Jefferson warned was already happening in 1825: “[I]t is but too evident, that the three ruling branches of [the Federal government] are in combination to strip their colleagues, the State authorities, of the powers reserved by them, and to exercise themselves all functions foreign and domestic.”
Therefore we need a mechanism to keep the federal government limited and unconstitutional measures out of the law books, and that is the constitutional remedy known as nullification.
Examples of direct nullification attempts are rare, with one being the recent Virginia Health Care Freedom Act to prevent the federal government from requiring mandatory insurance coverage. In 2009, a state sovereignty resolution passed both chambers of the Tennessee legislature, and while relatively toothless, it was the first time such a resolution had been signed by a state governor. Since then, Alaska, North Dakota, South Dakota, Idaho, and Oklahoma have passed similar resolutions, and several other states are taking a long look at the possibility. I, like many others, have high hopes for nullification, but remember, its one thing to pass a symbolic resolution, but it’s going to be quite another to make it stick.