Wednesday, January 23, 2013

Danial Horwitz's responds to Tracy Tarum's critique of his defense of federal supremacy

The below is a response to an article written by Tracy Tatum critiquing a previous post of Daniel Horwitz's in which he supporting my position critical of a bill sponsored by Representative Joe Carr which would require local Tennessee law enforcement officers to arrest Federal agents enforcing new federal gun control laws in Tennessee. At this link you will find the most recent article in this series which links to the previous post on the topic. Rod

Danial Horwitz's responds to Tracy Tarum's critique of his defense of federal supremacy

by Daniel Horwitz

Dear Mr. Tarum,

I fear that you have misread much of my post, or at least failed to understand it.  My defense of Mr. Williams was not borne out of my own “thoughts” or “conclusions” about the Supremacy Clause.  Nor was it based on my own personal opinion about the proper role of the Federal government.  The primary points I made were objective statements of the law as I understand it, and they can be summarized as follows:

(1) Pursuant to the Supremacy Clause of the Constitution of the United States, whenever a state law conflicts with a Federal law, the Federal law takes precedence;

(2) The power to strike down Federal laws as unconstitutional is vested exclusively within the Federal judiciary; and

(3) Obstructing Federal agents in their official capacity is in fact a crime punishable by 8-20 years in prison (see 18  USC § 111). 

Attacking the claims above on the basis that I am merely a law student is completely reasonable, and doesn’t bother me a bit.  Dismissing the identical views of people like Professor Fisher, Chief Justice Taney and Father of the Constitution James Madison (along with, quite frankly, every legal practitioner alive today) is obviously much less reasonable, but ultimately that doesn't matter, either.  Your response to my post betrays a fundamental misunderstanding of judicial review (point #2, above), and this is ultimately what makes your aggressive critique of me appear so silly. 

As you note, what you find “most disturbing” about my defense of Mr. Williams is that I “assume that the Federal government has power over the sovereignty of the States on domestic matters not enumerated.”  Of course, a thorough reading of my post reveals that I never actually suggested anything of the sort.  What I did say – and what I will repeat here now – is that “the power to declare Federal laws unconstitutional is vested exclusively within Federal courts.”  Similarly, I explained that “there is one and only one mechanism for invalidating a Federal law: appeal to the Federal judiciary for relief, and convince a Federal judge to strike the law down as unconstitutional.”  These are accurate statements of the law.  Thus, even assuming that citizens do have a constitutional right to own “high-capacity” magazines, and even assuming that the Obama Administration's recent initiatives are indeed unconstitutional (and just to be clear, we  probably don’t, and they probably aren’t), your position that Representative Carr’s bill can pass constitutional muster would still be wrong.  Only Federal judges have the power to nullify Federal law. 

Whatever you and Representative Carr may think or want, the state of Tennessee may not usurp the authority of the Federal judiciary, nor take steps to nullify Federal law in the judiciary’s place.  Your belief that our state may lawfully claim such authority has effectively turned the concept of judicial review – a bedrock of our constitutional system – on its head, and it is completely and utterly wrong.  Unlike the Federal judiciary, the state of Tennessee simply cannot nullify a Federal law.  Period.  You are certainly welcome to disrespect titles like “Chief Justice,” and to condemn the Supreme Court’s rulings as  “intentional misinterpretation[s] for personal or political agendas.”  But the Justices of the Supreme Court have spoken with one voice on this issue since our nation’s founding, and one thing that you cannot do is overrule them. 

Taking as an example your hypothetical about a Federal law restricting couples to a maximum of two children, here is how such a situation would likely play out in reality.  The moment that any such law was enacted, it would immediately be challenged in Federal District Court.  An injunction prohibiting enforcement of the law would be granted immediately (indeed, it would be granted long before the bill was scheduled to go into effect), and the law would be struck down shortly thereafter for violating the Fourteenth Amendment rights of citizens pursuant to Skinner v. State of Okl. ex rel. Williamson (which held that procreation is protected as “one of the basic civil rights of man”).  Simultaneously, I suppose it’s possible that an enterprising state legislator would introduce a bill calling for the arrest of Federal agents in order to gin up support from his base in anticipation of a primary challenge to a Congressman beleaguered by a recent abortion scandal.  Such a bill, however, like Representative Carr’s bill today, would violate the Supremacy Clause, and would be an unconstitutional attempt to usurp the power of the Federal judiciary— the fact that it was premised upon the perceived unconstitutionality of a Federal bill notwithstanding.  Once again, just to make the point crystal clear: the fact that a Federal bill itself is unconstitutional is not what matters.  What matters is that the Federal judiciary is the one and only body vested with the power to make that determination.  

On a final note, with regard to the many personal attacks that you’ve celebrated as having been dripping with “condescension, arrogance [and] sarcasm”: I don’t know the origin of your intense hatred for Vanderbilt (which makes you come across a bit crazy, by the way), but allow me a moment to respond to a few of the things that you appear to hate most about both my school and about me personally.  First, at least based on my own experience, Vandy isn’t anything like the ivory-tower law school that you envision.  I don’t perceive it that way, and I honestly don’t think that anyone else does, either.  Second, Vanderbilt Law is not in the liberal “indoctrination” business; I was taught constitutional law by one of the most respected and effective conservative legal scholars of the last century, and unsurprisingly I don’t hold even a single one of the views that you have erroneously attributed to me.  (There isn’t a Liberal alive who holds those views either, by the way.  You’re attacking straw men.)  In particular, I found your accusation that I “believe that subjection to government is the duty of mankind” to be especially entertaining.  Suffice it to say that such nonsense detracts enormously from your credibility, and makes you seem slightly unhinged.

Lastly, being so rudely dismissive of someone whom you’ve never met solely on the basis of your own unsubstantiated belief that they don't have “skin in the game” and have never “actually achieved something” is fairly childish.  In addition to paying taxes here in Tennessee that I'd much rather see spent on something more worthwhile than litigating over a bill that all thinking people realize is unconstitutional (which is really all the justification I need), I actually take great pride in advocating for the limited-government causes that are near and dear to my heart.  When asked, I also do my very best to provide an objective analysis of constitutional law for this blog so that its readers can understand the issues of the day from a purely constitutional (rather than political) perspective.  If you find that offensive, sir, I make no apologies. 

In sum, rather than resorting to petty insults in an effort to support the views you hold, next time it would probably be beneficial to take the time to read and actually understand whatever it is that you’re critiquing, then take Representative  Faison’s advice and join the rest of us “in the land of reality.” 

Daniel Horwitz is a third year law student at Vanderbilt University Law School, where he is the Vice President of Law Students for Social Justice. He can be contacted at

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