Interposition

[stoke001 at maroon.tc.umn.edu]

Brooks Fudenberg raises some interesting questions about whether my
position has some connections with Calhounian nullifcation.  At the
risk of digressing off-topic, a brief response and a hypothetical:

1.  Calhoun had a specific constitutional theory that said something
like that the feds couldn't enforce their view of the law against a
state unless three-fourths of the states agreed.  (Please, someone
correct me on the details.)  This view is unsound as a reading of the
Constitution.  Federal authorities may act on their interpretation of
the Constitution, based on the powers conferred on them by the
Constitution, which does not include a three-fourths consent of the
states proviso.  This means that the feds can act on their best
reading of the Constitution and the states can act on their best
reading of the Constitution, each with all of the constitutional
powers at their disposal.

2.  Does this imply a *legitimate* sphere of state resistance to
fedral authority?  Consider the following:  The nation votes in
Douglas, or Breckenridge, in 1860, rather than Lincoln.  The
South stays in the union.  Lemmon v. The People, in the
judicial pipeline, reaches the US Supreme Court, which, on the
authority of Dred Scott, holds that a slaveowner retains his property
rights in slaves when he moves to a free state, temporarily or
permanently.  Slavery thus becomes the law of the land and New York
City is about to become North America's largest slave-trading port.
You are the governor of New York.  The order comes to you to turn the
freedman back to their "rightful" owners.  Assuming that you think
that Lemmon and Scott are wrongly decided, and usurp the
Constitution, are you *constitutionally* justified in resisting the
decree?  If so, how do you distinguish your case from Governor
Faubus', except on the premise that you are right on the merits of
your case and he is wrong on the merits of his?

Michael Stokes Paulsen
University of Minnesota Law School