Nullification Is the Name of the Game
What is “nullification?”
It is the legal theory that the States, as the creators of the Constitution and the federal government itself, have the right to nullify any unconstitutional law passed by the “federales.” This theory was first advanced by Thomas Jefferson, the author of the Declaration of Independence and James Madison, the father of the constitution.
In this column, I am going to stand on their shoulders. I did not come up with this idea and it is not novel. It has been around since 1798, so if anyone has a problem with it, you’ll have to channel Jefferson and Madison and take it up with them.
It is true, courts have rejected this theory. That is not surprising, since agreeing with this theory would be to accept a lesser role for themselves in American jurisprudence. Most courts and many judges feel they are entitled to a more exalted position in the scheme of things. Still, the issue is not what the courts have done, but whether what they have done is right.
The concept of nullification is being bounced around in the marketplace of ideas a lot more these days. That’s because one state after another is reaching its saturation point with the heavy-handed and unwarranted dictates of “Big Brother.”
According to the Associated Press, “about four-fifths of the States have enacted laws that directly reject or ignore federal laws on gun control, health insurance requirements and identification standards for driver’s licenses,” among other things.
Make no mistake. The federal government is the creation of the States, not the other way around. Thus said Jefferson and Madison. Under the form of government given to us by the Founders and ratified by the first generation of Americans, the States are the master, the federal government is the servant.
The States delegated to the central government certain powers which are detailed in Article 1, Section 8 of the Constitution, and reserved every other power to themselves and to the people in the 9th and 10th Amendments.
Conspicuous by its absence in the Constitution is any mention of marriage. Nowhere in the Constitution, in Article 1, Section 8, or anywhere else, did the Founders grant any authority to the federal government—including the court system—over domestic policy in the individual States. Marriage policy, in our form of government, is an issue that is reserved for the States. No branch of the federal government—legislative, executive or judicial—has any moral or constitutional authority to dictate marriage policy to the States.
Of course, some will cite the 14th Amendment, but the subject of marriage is not a part of the wording of that amendment, nor was it a part of the debate concerning its ratification. Simply put, the 14th Amendment says not one thing about marriage. So, those who cite it as it supposedly relates to marriage are simply guilty of judicial activism. The 14th Amendment was written only for the purpose of granting full citizenship to newly emancipated slaves and guaranteeing their right to vote.
So, out there in the future somewhere, what should our response be if the Supreme Court overreaches and imposes same-sex marriage on all 50 states?
Here is what James Madison wrote in the Virginia Resolutions of 1798. When the federal government engages in “a deliberate, palpable, and dangerous exercise” of powers not granted by the Constitution, he said, “the States, who are parties thereto, have the right, and are 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.”
So, what should States do if and when the Supreme Court overreaches, as is its wont (Roe vs. Wade, 1973), and seeks to dictate marriage policy to the States? If S.C.O.T.U.S. crosses the constitutional line, the States, particularly the ones who have marriage amendments in their state constitutions, should “interpose” themselves between the tyranny of the central government and their own citizens.
Just as caring families do an “intervention” with a loved one whose life is out of control, the States and Congress should perform an intervention with the Supreme Court if the justices choose to run past their constitutional authority. It would serve to break the court’s addiction to its own power.
States with marriage amendments would continue to recognize only marriages which are valid under their state constitutions for the purpose of state recognition and state benefits. On constitutional grounds, the States would simply ignore the Supreme Court and its unconstitutional muscling. If this action were to be taken by the state legislatures, by the elected representatives of the various states, it would not be rebellion. It would, in fact, represent the very best expression of the republican form of government.
Congress would simply refuse to recognize the legitimacy of any Supreme Court action that would overturn what is left of the Defense of Marriage Act. Deciding the definition of marriage for federal purposes is the responsibility of Congress, not the Supreme Court, and Congress should not surrender its constitutional authority to the justices. If Congress does not surrender on this matter of constitutional law, what recourse does the Supreme Court have?
What would the Supreme Court do if Congress and the States stood firm and refused to bend on constitutional principles? Nothing. It has no police force. It has no power to enforce its unconstitutional will on anyone.
The authority of S.C.O.T.U.S. is entirely a function of the good will of the American people. Many citizens are tired of being pushed around by the lifers in black robes. The power of the court is exclusively in its moral authority which is slipping a little more each day.
If Congress and the States take the advice of Jefferson and Madison and “interpose” themselves between a hyperactive judiciary and the people, the Supreme Court will be the loser, but guess who the winners will be? The American people.
I like it when the good guys win.
Ed Baswell pastors The Clarion Church and is the host of Crossfire Radio, weekdays from 7-9 am, on The Promise, 90.7 FM. The show is streamed live worldwide at promisetalkradio.org and at ktbs.com. It can be seen each day on the KTBS 24-hour, digital news channel.