All Republicans seem to agree that our country has been taken over by a post-constitutional military regime that usurps power to achieve its insidious ends rather than obeying the rule of law. But when it comes to correcting these usurpations using the only tool James Madison gave us: federalism, elected officials too often shirk their responsibility. Worse, they realized that this terrible usurpation was actually land law.
The latest victim of this dangerous post-constitutional doctrine is Tennessee Attorney General Jonathan Scumetti.
This is the most dangerous myth that Americans must purge from our legal and political politics if we are to remain a free people.
As part of a growing movement against federal overreach, Tennessee lawmakers earlier this month SB2775, the Restoration of National Sovereignty through Nullification Act. This bill would authorize all state and local stakeholders to pursue a process to prohibit enforcement of unconstitutional federal laws within the Volunteer State.
Similar bills give only state attorneys general or state legislatures the power to interpret the Constitution, but SB 2775 would put that power in the hands of all citizens, as it was always intended.
This is how it works. The law would allow governors to issue executive orders declaring federal policies invalid. Alternatively, members of Congress could trigger a floor debate and vote to repeal the policy. Alternatively, a state court could rule the policy unconstitutional if the issue arises during a legitimate lawsuit or dispute. Alternatively, a combination of 10 local governments could file a petition for annulment through their respective executive or legislative branches, triggering a vote in Congress. Alternatively, and last but not least, a group of 2,000 registered voters could file a similar petition that would trigger an automatic vote in Congress on override.
In other words, this bill emphasizes that we all have a responsibility to uphold the Constitution. Once everyone understands that the federal government oversteps its boundaries too often, we have an obligation to push back.
constitutional confusion
Mr. Scumetti took office last week. declared SB 2775 “Unconstitutional.” The attorney general’s argument is not new. He, like many of his colleagues, accepts the dual premise that the federal government is supreme over the states in constitutional interpretation, and that the judiciary is king within the federal government.
“Legislative action that would give Congress itself the power to invalidate unconstitutional federal actions is impermissible because it would usurp to Congress itself the power to interpret the law that properly belongs to the judiciary,” the attorney general argued. “In short, under the Tennessee Constitution, only the judiciary has the authority to determine the constitutionality of federal lawsuits.”
it’s not!
Let’s start with Scrumetti’s Supremacy Clause argument. Certainly, states should not enact laws that are contrary to federal law or the Constitution. However, the Constitution makes the federal government supreme only when Congress passes and the President signs laws consistent with the powers enumerated in the Charter.
For example, Congress can impose tariffs on imported goods. This is because it is a power enumerated in Article 1, Section 8 of the Constitution. Just because a tariff is unfair to some countries under certain circumstances does not make it unconstitutional. States may lobby and file complaints, but the Constitution is clearly on Congress’ side.
But what if the federal government decides to force everyone in the state to wear a mask?
Alexander Hamilton, the most ardent supporter of strong national government among our founders, told us what he thought would happen in such a situation. “It does not follow from this doctrine that an act of a larger society which is not in accordance with its constitutional authority and which is an intrusion upon the remaining authorities of a smaller society becomes the supreme law of the land,” Hamilton wrote in The Federalist. wrote. 33.
Roger Sherman argued in a December 1787 paper: letter When the federal government issues regulations that clearly exceed its jurisdiction, states can easily push back without resorting to court. Sherman writes:
And although the general government supersedes the constitutions and laws of particular states in matters within its jurisdiction, any act of Congress not guaranteed by the constitution is void. Nor can it be forced against the sensibilities of the majority of states. One of the great things about the Constitution is that it is in the interest of a particular state’s legislature to uphold the U.S. government when it acts within its proper scope; That is, when it interferes with the rights of the government. , they are powerful enough to check it. However, the distinction between the jurisdictions of the two countries is so clear that there would be no significant risk of interference.
That sounds exactly like what SB 2775 seeks to strengthen.
the most dangerous myth
Mr. Scumetti argues that only the courts have the final say on constitutional arguments. He cites the Supreme Court’s 1958 decision. cooper vs aaronOstensibly it was about desegregation, but in reality it was a brazen assertion of judicial supremacy. Chief Justice Earl Warren declared, “The fundamental principle that the federal judiciary is supreme in interpreting constitutional law is a permanent and essential feature of our constitutional system.”
Warren was wrong. The Supreme Court is not a king. There are no last words. This is the most dangerous myth that Americans must purge from our legal and political politics if we are to remain a free people.
The very rationale behind the concept of a court Also Having a say in the interpretation of the Constitution (despite not being elected) means that judges take an oath to uphold the Constitution. denial The idea of judicial supremacy.
After all, all members of the federal and state governments Also I swear to the Constitution. Just as federal judges are not allowed to violate their oaths by using enforcement powers in cases or disputes over unconstitutional laws, elected state and federal officials are not allowed to violate their oaths in cases or disputes over unconstitutional laws. It cannot promulgate, fund, or enforce proclamations. .
Chief Justice John Marshall said: Marbury vs Madison He argued that publishing opinions that go against the Constitution is “immoral” and a “crime.” “How immoral to impose it upon them, when it is to be used as a tool to violate and to know what they have sworn to uphold!” An exasperated Marshall exclaimed his most famous opinion: It has expanded.
Defending judicial review, Marshall asked, “Why do judges swear to do their jobs in agreement with the U.S. Constitution, since it does not constitute the rules of government?” What if it’s closed to him and he can’t test? ”
The same argument came back, for example, when a federal judge handed down a shocking ruling. ruling Students at a school in Knoxville, Tennessee, had to wear masks for seven hours a day. There is no man alive who can justify that proclamation as a federal power, judicial, executive, legislative or otherwise.
State and county officials have an obligation to set aside this ruling, just as Marshall believed courts would be obligated to do if Congress passed a law mandating mask-wearing.
Madison 1, Scumetti 0
How can a branch, especially a non-elected branch with lifetime tenure, become the sole and final arbiter not only of the boundaries of its own authority, but of the boundaries of authority of the states and other federal branches?
As Thomas Jefferson advised in the Kentucky Resolutions of 1798: “The government established by this compact shall not be the exclusive or final judge of the extent of the powers delegated to it. It was not, because then its discretion, not the Constitution, would be the measure of its power.”
“The early history of the United States is rich with examples in which all three branches of the federal government played a role in constitutional interpretation,” the Congressional Research Service said in a 2017 report. Members of Congress were not very happy with their jobs and told the court: Last or exclusive It is responsible for defining the fundamental powers and limits of the federal government. ”
Before the 20th century, most members of Congress agreed with Madison’s views in Federalist No. 49. “It is clear that the several ministries are perfectly coordinated by the terms of a common commission, and that no ministry can claim exclusive or superior rights.” The boundaries between their respective powers is to solve. ” Madison emphasizes. believed it It is “each [department] When exercising the functions of the Constitution, each party must follow the provisions of the Constitution in accordance with its own interpretation of the Constitution. ”
Mr. Scrumetti could not be further off the mark in persistently citing the Tennessee Constitution as the basis for making the federal judiciary the sole exponent of the U.S. Constitution.
In fact, Article 11, Section 16 of the Tennessee Constitution makes clear that the Declaration of States Rights “shall not be violated under any pretext.”
So what is your remedy when a federal employee violates these rights? Do you scream in court and hope for the best? no.
“In order to prevent any violation of the higher powers to which we have delegated, we do hereby declare that all matters contained in the Bill of Rights shall be excluded from the general powers of government and forever inviolable.”
Perhaps Mr. Scumetti could use a refresher course on state constitutions — and Mr. James Madison while he’s at it!
