October 19, 2010 4:30 pm ET - by Alan Pyke
Martha Dean is running for Attorney General of Connecticut as a Republican. But her view of states' rights suggests she'd be more at home representing the old Confederacy. According to Dean, when states don't like a Supreme Court decision — the final constitutional step in settling legal disputes — they can simply ignore the parts they don't like:
Dean, who is facing off against Democrat George Jepsen in a race to become Connecticut's first new attorney general in 20 years, presented a vigorous defense Wednesday of the doctrine of "nullification," which holds that states can reject federal laws when they believe that Washington has no authority under the U.S. Constitution to enforce them.
"This is a tool that has existed," Dean said in a phone interview. "It is a tool that isn't often used. It isn't often needed."
But in cases in which she believes the federal government has surpassed the limitations imposed by the Tenth Amendment to the Constitution - which reserves powers not granted to the federal government to the individual states themselves - Dean said she supports efforts by Connecticut and other states to nullify federal law.
While Dean said her position is controversial only to "the left," nullification, also referred to as "interposition," is extremely controversial. It has been invoked by defenders of states' rights, for instance, in some of the most intense rebellions against federal authority, most notably during the run-up to the Civil War and the civil rights movement of the 1960s.
That's crazy enough on its own. Dean may not be arguing for an economy based on slave labor, but she is arguing — vigorously — that the legal doctrine used by slave states to defend the practice (thus starting the Civil War) is a valid and useful "tool" in our legal system. As the Constitutional Accountability Center pointed out last week, she's flatly wrong:
Actually, no such "tool" exists. The Constitution's Supremacy Clause, found in Article VI, makes the Constitution and federal laws enacted pursuant to it the supreme law of the land - laws that all states must therefore obey. And Article III of the Constitution makes the Supreme Court, not the states or individual state officials, the final arbiter of whether a federal law is or is not unconstitutional. It is disturbing that Dean, seeking office as a state's chief lawyer, said in the interview that she does not "accept" that the Supreme Court has this authority. Dean would do well to go back to her law school texts and remind herself of Chief Justice John Marshall's famous declaration, made more than 200 years ago, that "It is emphatically the province and duty of the judicial department to say what the law is." Simply put, Dean's claim that states have the power to nullify federal law conflicts with the text of the Constitution.
Dean took exception to CAC's rebuke, and picked a strange ally to defend her outlandish legal philosophy. In a comment on the CAC post, Dean quoted secessionist writer Dr. Tom Woods' response to the CAC analysis. Woods, who holds a PhD in history from Columbia University, called the post a "fifth-grade research paper" and accused its author of "getting the history exactly backwards!" In closing, Woods made that most insidious of arguments: "Ever read Hitler's views of states' rights? I'll give you a hint: he doesn't side with me." Right! Because anybody who thinks the Constitution lays out a clear system for resolving legal disputes that ultimately holds Supreme Court decisions to be the law of the land is pining for the good ol' days of Nazi Germany.
Woods, for his part, pines merely for the good ol' days of the antebellum American south. According to the conservative Claremont Institute, Woods' book of American history "is just more wheezy propaganda from the old Confederacy," and "Woods is a founding member of the League of the South, which officially declares: 'The people of the South must come to understand that they indeed are a 'nation'' and may resort to secession if their demands are not met."
In another post today, CAC calls attention to another conservative dismissal of Woods' worldview:
Libertarian author Cathy Young also shredded Woods' book in Reason Magazine, saying:
Much of the book's first half is an apologia for the antebellum South and its cause in the War Between the States (Woods' preferred term).
If you're wondering whether there's a larger context for Woods' pleading, there is. Born and raised in the North, Woods is a co-founder of the League of the South, a neo-Confederate group, and has written frequently for its magazine The Southern Patriot.
In a 1997 article titled "Christendom's Last Stand," Woods proclaims the Confederacy's defeat "the real watershed from which we can trace many of the destructive trends that continue to ravage our civilization today."
If these are the friends Martha Dean turns to for covering fire in the "battle" over nullification — a battle her side lost two centuries ago — then she's got no business representing the Nutmeg State in a court of law. And if these are the candidates the GOP recruits for New England campaigns, who are the Republican champions in so-called "Real America"?
Updated 10/21/10 to reflect Dr. Woods' credentials: a bachelor's in history from Harvard, and postgraduate degrees including a PhD in history from Columbia University.
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