Not only have presidents often ignored the Court, maintaining that they interpret the Constitution, the states have, as well. To be sure, state resistance to federal courts has sometimes been tragic and unjust. We should note, as Malor does not, that state and local resistance to Brown was, tragically, successful. A decade after Brown, with the exception of a few, high-profile cases in the media, there had been virtually no desegregation of public schools in the South. Significant movement on desegregation did not occur until after the Civil Rights Act passed. As political scientist Gerald Rosenberg has demonstrated, the Court decision, by itself, had virtually no effect.
Now, I think Brown was obviously constitutional precisely because segregation certainly violates the Thirteenth and Fourteenth amendments. It follows that (the very successful) state resistance to the decision was illegal and unjust. But the abuse of a power—here the ability of the states to resist the federal courts—is not an argument against rightful use. And instances of the rightful use of this particular power are not hard to find.
The Alien and Sedition Acts jump immediately to mind. According to the Virginia Resolutions (December 21, 1798) Madison authored, “the powers of the Federal Government” are “nor further valid than they are authorized by the grants enumerated” in the Constitutional Compact. And “in case of a deliberate, palpable, and dangerous exercise of other powers not granted by the said compact, the States, who are the parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them.”
