By Brooke Obie, Online Communications Director

In an  interview on Wednesday with TheDay.com, Connecticut Attorney General candidate Martha Dean falsely and dangerously claimed that, under the Tenth Amendment to the Constitution, states have the power to “nullify” – that is, disobey or ignore —  federal laws that the states believe the federal government had no constitutional power to enact, a theory that has not seriously been entertained since it was put to bed by the Civil War.   According to Dean, in some instances:

“[T]he Supreme Court is just wrong, so what option does the state have? …They have the option of nullification….This is a tool that has existed…It is a tool that isn’t often used. It isn’t often needed.”

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.

It also conflicts with a unanimous opinion of the Supreme Court.  As CAC’s Chief Counsel Elizabeth Wydra explained in our series “Strange Brew: The Constitution According to the Tea Party”:

[A]fter the Supreme Court’s 1954 decision in Brown v. Board of Education, a number of southern state legislatures passed “Resolutions of Interposition” vowing not to abide by the Supreme Court’s ruling that the Constitution required desegregated schools.  In Cooper v. Aaron (1958), in a unanimous opinion in the name of all nine Justices, the Supreme Court repudiated the Little Rock, Arkansas school board’s plan to prevent African-American students from attending the formerly all-white Central High School and strongly reaffirmed that states have no power to nullify federal law.  Quoting the Supremacy and Oath of Office Clauses and discussing precedents dating back to the birth of the Republic, the Court held flatly unconstitutional Arkansas’ refusal to obey the mandate of the Equal Protection Clause.  “[N]o state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.”

Dean would do well to remember why nullification “is a tool that isn’t often used.” Besides being completely unconstitutional, its invocation has brought about some of the most divisive moments in our history: from the attempted destruction of our great Nation by secessionists in the 19th Century, to the dividing of people by segregationists in the 1950s and 1960s.  Encouraging such backsliding of America into its darkest days is an extremely dangerous position for anyone to take, let alone someone seeking to become a state Attorney General.

If Dean is elected, she, like every other federal and state office holder, will be required by Constitution to take an “oath of affirmation” to support the Constitution.   Hopefully, by at least this time, she would realize that her oath would require her to uphold and defend the Constitution of the United States– not the Constitution according to Martha Dean or any other state official.