No...
The issue was settled a LONG time ago in favor of the OPPOSITE viewpoint. It directly contradicts the US Constitution. You can't even cry "judicial activism" on this one, because the US Constitution explicitly spells it out:
That really doesn't leave much room for interpretation.
Except that the Constitution is silent as to whom may deem a federal law unconstitutional.
Prigg v Pennsylvania (
41 U.S. 539) established the supremacy of federal law to state law--that much is undeniably settled. However,
Marbury v Madison (
5 US 137) points out that
Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void.
The measure being advocated in the South Carolina legislature empowers that state to ignore federal laws it deems unconstitutional. By the standards that have guided judicial review of federal law since
Marbury, if an act of Congress is unconstitutional it is null and void, and is of no effect; this also is long settled.
Marbury also established the power of the Supreme Court to declare federal law unconstitutional:
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
However, does this paragraph restrict the province of constitutional review strictly to the courts? Does the judicial duty to "say what the law is" preclude a state from saying what the law is not?
It is worth noting that five years before
Marbury, in 1798, Thomas Jefferson and James Madison penned the Kentucky and Virginia Resolutions, advancing state nullification as a means to counter an overreach of federal authority (in 1798, the overreach was the Alien and Sedition Acts) (trivia note: Jefferson's Kentucky Resolution was given new life recently when Georgia revisited the language of the Kentucky Resolution in passing their own
resolution affirming states rights). Both the Kentucky and Virginia Resolutions and
Marbury v Madison reflect a very real need to constrain the federal government from wandering beyond the borders of the Constitution in its exercise of government power. Not every act of Congress is inherently constitutional, and this is also long settled law.
South Carolina's previous foray into nullification, the
Ordinance of Nullification, passed in 1832, came some thirty years after
Marbury. It was never challenged in court, but was repealed after a compromise was reached over the Tariff of 1828. Nullification itself is thus a most unsettled law, at least from the Constitutional perspective.
The routine arbiter of constitutionality is and no doubt will remain the Supreme Court. South Carolina seeks to extend that capacity to the states--and even the existence of that capacity is most assuredly not a matter of settled law.
