Donald Livingston Interview: The Supremacy Clause For Dummies

Nota bene: This interview was originally published on Feb 12, 2013.

Mandeville, LA – Exclusive Transcript – I think what he just explained to you — this is just another point of view in a long supremacy string of explanations, Professor Livingston — is that you’ve been taught to understand the constitutional order as specifically and totally defined by the federal judiciary when we know from the admonitions of the framers of the Constitution that the government cannot possibly be the sole arbiter of the extent of its own powers.  Check out today’s transcript for the rest…

Begin Mike Church Show Transcript

Mike:  I want to go to the Dude Maker Hotline and say hello to my dear friend Professor Donald Livingston, editor and co-author of the phenomenal book which every one of you should have on your coffee tables or in your reading libraries, Rethinking the American Union for the Twenty-First Century.  Professor Livingston is going to talk to us a little bit today about what is going on in South Carolina.  Don, Professor, Doctor, how are you?

Donald Livingston:  I’m fine, Mike.  How are you this morning?

Mike:  How’d you like all those salutations?

Livingston:  That’s too much.  I’m retired now.  I’m a recovering academic.  I don’t need to hear that.  It’s like alcoholism.  You never quite get over it, you just recover.

Mike:  If I told Professor Livingston what today’s Latin phrase of the day is, he would know: prodesse quam conspici, to be of service rather than be conspicuous.  That’s kind of how the men were of the late 18^th, early 19^th century, weren’t they?

Livingston:  Yes, yes.  That was their ideal.

Mike:  That was their ideal, their beaux ideal.  Recently the legislature of the great State of South Carolina, of which you are a citizen, held some hearings on what to do with this monstrous federal act known as the Affordable Care Act.  They asked for some scholarly citizens to come in and provide some testimony on this process known as nullification, which you did.  This just happened last week.  I’d like you to give the audience a rundown on what happened in that hearing.

Livingston:  The question was whether it’s constitutional to nullify an act of Congress.  The first person who spoke was a law professor.  He said on legal questions there are often two sides but on this question there’s only one side, and that is that Obamacare is the law of the land because of the Supremacy Clause which was passed by Congress and certified by the Supreme Court, case closed, the law of the land.  That set the tone.  I spoke next and argued that the Supremacy Clause did not mean what he took it to mean.  It says that laws passed in pursuance of the Constitution by the central government are the supreme laws of the land, but they have to be in pursuance to the Constitution.  Any law or act of Congress or the President or the Supreme Court that is not in pursuance of the Constitution is not only not the supreme law of the land, it’s null and void.  That’s obvious in the language.

The question is who gets to decide whether it’s null and void?  Most people think the Supreme Court has the final say over that.  I argue they do not.  If you’re going to say the law of the central government is null and void, you have to have a real strong authority.  The only entity that has that strength of authority would be the parties to the constitutional compact.  The states ratified it.  If they hadn’t ratified it, it would have had no force of law at all.  They are the source of positive law.  Therefore, a state can step forth to protect their citizens by sounding the alarm that this central government has gone too far.  What the remedy is that the state takes up is not a question.  I didn’t get into that.  I tried to argue that the way was clear for them to protect their citizens.

Mike:  How was that received?  Was there a debate after that?  Did the law professor get a chance to rebut?  Did the state legislators that were in the hearing rebut?  Did they ask for more corroborating evidence?  What happened after testimony?

Livingston:  There was a panel of the members of the judiciary committee, I’d say about 20 members.  I got a lot of questions from the panel.  The law professor didn’t speak again.  I got more questions than anyone else.  I think they were not expecting that reply.  They were all lawyers.  What you’ve got to understand is that, I don’t know exactly when it started in South Carolina, but in the early 20^th century, the law schools began to, part of that progressive movement at the time, adopted the view that the Constitution is what the court says it is.  These law school-trained lawyers, most of them seem to think, as far as I could tell, that the Constitution is nothing but a long string of case law written by nine unelected, politically-appointed lawyers called Supreme Court Justices.  In other words, the law school professor simply rattled off cases from the Supreme Court.  That’s what they think the Constitution is.  One of the things a number of them said is that they had taken an oath to uphold the Constitution, even after my talk.  I replied: If you’ve done that, then you want to protect your citizens.

Mike:  And what was the response to that?  They have taken an oath.  If they allow something to become law on their citizens that they know to be an act of perversion or an aberration of enumerated powers, aren’t they violating their oath?

Livingston:  They most certainly are.  I think they were a bit taken aback.  What I put before them was, if this is indeed an unconstitutional act, which it is, then they have a duty.  I quoted Madison.  Madison said the state has a duty to interpose to protect its citizens.  They know that if they do act, this is going to be a constitutional confrontation, which it should be.  There should be more constitutional confrontations.  That’s the only way the central government will learn that it’s acting beyond its bounds.  People have to resist.  I don’t mean through violence.  Let’s put it this way.  I tried to convey this notion.  What the states must do is declare this unconstitutional.  Obamacare is bad not because it’s a bad healthcare plan, not because it’s inefficient, etc., etc.  What’s wrong with it is that the central government has no authority to order us to buy health insurance.  That’s what’s wrong with it.

If South Carolina wants to take Obamacare and present it itself to its citizens, they’d have the right to do that.  The state can order us to buy health insurance.  The federal government cannot.  That’s what they must do.  The next question is: How are they going to enforce it?  That’s a difficult question, I understand that.  I’ll have to leave that to the men on the ground.  They have to try to enforce it what way they can.  They have to first boldly say it’s unconstitutional and the reason they’re going to nullify is because it’s not law.  We need to hear that.

Mike:  Professor Livingston’s book Rethinking the American Union is a great read and contains a little bit of what you just heard.  More importantly, it contains a lot of information about how we are taught to think about these things.  I think what he just explained to you — this is just another point of view in a long string of explanations, Professor Livingston — is that you’ve been taught to understand the constitutional order as specifically and totally defined by the federal judiciary when we know from the admonitions of the framers of the Constitution that the government cannot possibly be the sole arbiter of the extent of its own powers.  That’s the case that Professor Livingston was making.  Don, I’d love to have you on for longer but we are out of time.  The book is Rethinking the American Union.  He is Professor Donald Livingston.  I have his comments and I will post them today along with the transcript.  Don, I appreciate it old friend.  Thank you.

Livingston:  Mike, thanks a lot, take care.

End Mike Church Show Transcript