Holding Court is a series by retired Rye City Court Judge Joe Latwin. Latwin retired from the court in December 2022 after thirteen years of service to the City.
What topics do you want addressed by Judge Latwin? Tell us.
By Joe Latwin
The Constitution creates a fuzzy chasm between the rights of the state and federal governments. The Supremacy Clause of the (Article VI, Clause 2) establishes that the Constitution, federal laws made pursuant to it, and treaties made under the authority of the United States, constitute the “supreme Law of the Land”, and take priority over any conflicting state laws. However, federal laws comport with the Constitutional powers of the federal government – they must be within the federal government’s enumerated powers, and not violate other constitutional limits on federal power, such as the Bill of Rights. Also, the Tenth Amendment to the Constitution says, “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Drawing those lines creates the battlegrounds we see today.
In 1791, there was a revolt in Western Pennsylvania over a tax Congress placed on whiskey – the mode of currency then in use in the West. In 1794 it became an armed insurrection. That August, President George Washington issued a proclamation ordering the rebels to return home and calling for militia from four States. After negotiations failed (an early Beer Summit like Obama held?), Washington ordered 13,000 troops into the area to put down the Whiskey Rebellion.
In 1798, the Virginia and Kentucky legislatures Passed the so-called Virginia and Kentucky Resolves. The resolutions were written by James Madison and Thomas Jefferson. The States’ principal arguments were that the national government was a compact between the states, that any exercise of undelegated authority on its part was invalid, and that the states had the right to decide when their powers had been infringed and to determine the mode of redress. The Kentucky resolution declared the federal Alien and Sedition Acts to be “void and of no force”. In recent times, states and municipalities have taken positions that the federal immigration laws will not be recognized by them. Other states and localities have said they would not recognize or enforce federal gun control laws.
In 1807, President Jefferson was vexed by the Aaron Burr conspiracy to overthrow the government, and got the Insurrection Act enacted, in part, to permit Jefferson to use the U.S. army to catch Burr and suppress the supposed insurrection.
As the issue of slavery boiled up, federal troops were used to enforce the Fugitive Slave Laws and to suppress domestic violence. Federal troops were dispatched to Kansas to stem the violence between pro-slavery and anti-slavery factions in “Bloody Kansas.” In 1859, after John Brown’s raid on Harper’s Ferry, the President sent U.S. army and Marines (commanded by then Col. Robert E. Lee and Lieut. Jeb Stuart) to capture Brown and forestall the revolt.
Do we seem to be repeating the events that led up to the Civil War? Do States have the right to nullify Federal law?
Some places are passing laws to keep federal officials out of their areas. For instance, California, Minnesota and Illinois officials have asked Customs and Border Patrol to leave. There is a long history of federal officials and the military policing within the States. We must ask: (1) from whence does the federal government derive its power? For instance, Article 1, section 8, grants Congress the authority to regulate immigration; (2) does that grant contradict any limit on powers of the federal government; & (3) is the power reserved to the States?
Let’s hope we can resolve these issues in the Courts and not on the battlefields.
