Will Baude offers a defense (via Fantasy Life) of a remarkable pro-nullification op-ed written by a justice of the Alabama Supreme Court. I think Baude’s defense is ultimately wrong and dangerous, although for somewhat different reasons than Steve Vladeck.
As long-time readers of this blog will know, I’m actually quite skeptical about judicial supremacy, and I think that Baude is right that Marbury did not assert judicial supremacy. The problem with Baude’s argument is that Marbury was about co-ordinate and equal branches, but where interpretation of the federal Constitution is concerned, the United States Supreme Court and the Alabama Supreme Court are not equal. Article VI makes the laws of the United States as well as the Constitution binding, and decisions of the United States Supreme Court–which are certainly law–are no more and no less binding on the state of Alabama than statutes passed by Congress. The problem with Cooper v. Aaron, in my view, is that it went further than it needed to. Upholding Brown did not require an assertion of judicial supremacy, but rather merely required noting the far more banal fact that states are bound by federal law, and the state of Arkansas cannot nullify United States Supreme Court decisions any more than they can nullify acts of Congress.
It should be noted as well that Baude’s Calhounite analysis would be completely unworkable in practice. This logic, if applied seriously, would allow states to nullify all federal law–just as Parker can claim that he’s not bound by Roper because it is an erroneous interpretation of the Constitution, the state of Alabama could say it’s not bound by a federal statute because it is beyond the legitimate enumerated powers of Congress and hence does not represent a valid “law” under the Supremacy Clause. (Congress’ constitutional interpretations, under this theory, certainly cannot be more binding than judicial interpretations.) Allowing states to selectively nullify federal law has been generally abandoned for good reason, and Baude’s legal theory was thankfully and permanently buried by the Civil War. Oliver Wendell Holmes once wrote that “I do not think the United States would come to an end if we lost our power to declare an act of Congress void. I do think the union would be imperiled if we could not make that declaration as to the laws of the several states.” He was right. Somebody has to be able to provide authoritative resolutions to conflicts arising from competing legal interpretations between different levels of government, and the Constitution logically locates the resolution of disputes about federal law in federal institutions.