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Obaminable Nullification & Division Among Constitutionalists

Rob at James Madison's home in Virginia

Rob at James Madison's home in Virginia

“Progressives” often attack as indefensible proposals by some conservatives that states nullify federal laws those states deem unconstitutional. But “progressive” politicians now are engaged in a nullification campaign far more audacious and lawless than anything suggested by conservatives.

The latest example is the decision by Virginia’s new attorney general, Mark Herring, to join the attack on the constitutionality of his state’s legal definition of marriage. Of course, the traditional duty of a state attorney general is to defend state laws against attack, not to join the assault. This obligation prevails even if the A-G personally believes the law under question is unconstitutional or unwise. He is a lawyer. His client is the state. His client is not some disaffected interest group. He has a professional role to perform. If he’s not willing to perform it, he should get his butt out.

More serious are the decisions of the President to refuse to enforce federal laws he doesn’t like. For example, federal marijuana statutes, whatever their advisability, are currently on the books, and the Supreme Court upheld them a scant nine years ago. The Constitution imposes on the President the duty is to “take Care that the Laws be faithfully executed.” This is a constitutional commandment, not a serving suggestion. But the Obama administration has pursued an on-again-off-again, state by state, approach to enforcement. The effect is to selectively nullify statutes that were democratically enacted and judicially-vetted.

The Obama-Herring approach to “governing” goes well beyond the kind of nullification some constitutional conservatives advocate. Unlike the President, they seek to nullify only laws that they deem unconstitutional, not merely laws they think unwise. And unlike both the President and Herring, they suggest nullification through duly-adopted state legislation, not by the unilateral decision of an executive officer. (Needless to say, the Obama-Herring practice also goes well beyond President George W. Bush’s practice of issuing interpretive “signing statements,” which liberals then hypocritically assailed as improper.)

As I have noted elsewhere, the United States is suffering a break-down in official adherence to the rule of law. Arbitrary executive nullification is only one example. But executive nullification is a graphic reminder of how serious is the threat to our liberties.

It also should be a reminder to the defenders of liberty to stop fighting among ourselves.

To be sure, arguments among the Constitution’s defenders are almost all about strategy, not about goals. In many cases, however, those arguments have become filled with invective. I am not of a conspiratorial turn of mind, but I do suspect that left-wing sources help foster them. Divide et impera.

Most of the controversies turn on abstruse points of constitutional law. Those points, in turn, depend on such questions as whether the Constitution is a grant from the people or a glorified interstate compact; whether this or that nullification theory is or isn’t constitutionally justifiable under the Madison theory, the Jefferson theory, the Calhoun theory, or whatever;  and what this or that Founder believed at one or another time of life. I don’t think it’s unfair to suggest that most of the combatants do not have the background or training to reach authoritative conclusions on such points. But that doesn’t deter them from fighting.

As often happens in such disputes, the participants talk past each other, and never fully understand what their opponents have to say. Much of the argument over nullification, for example, derives largely from inconsistent use of terms.

Saving the republic will require that, whatever our strategic differences, defenders of the Constitution respect each other as allies. As my friends at the Tenth Amendment Center say, “Concordia res parvae crescunt”—through harmony, small things grow.

Next week’s post will seek to clarify the nullification argument in the hope that a common terminology will reduce the field of dispute.

Rob Natelson