Unconstitutional law can’t be seen as supreme

Letter to the Editor printed in the Marietta Times 3/6/2012

The recent HHS ruling that forces Catholic institutions to provide health care services in violation of their religious tenets is a perfect example of why something called nullification theory is essential to reigning in an out-of-control federal Leviathan. Thomas Jefferson and James Madison, in the Kentucky and Virginia Resolutions (1798), described what recourse is available to the states and the people when their federal government oversteps its constitutionally enumerated powers.
The Catholic church took a courageous stand against the ruling by stating they would not comply with this "unjust law." Still the Bishops got it wrong because they, like most Americans, are unfamiliar with the theory laid out by two of our most important founders. Nullification theory begins with the axiomatic point that a federal law that violates the Constitution is no law at all. One cannot refuse to abide by a law that does not exist.
Critics of this position will cite the Supremacy Clause in the Constitution which reads, "This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding."
It is important to remember, however, the Supremacy Clause only applies if the federal government is acting in pursuit of its constitutionally enumerated powers, as noted by the phrase "in pursuance thereof." In other words, while the Supremacy Clause makes federal law supreme, it does not make unconstitutional law supreme.