What happens when the federal government promulgates a blatantly unconstitutional and life-altering regulation on our life, liberty, and property that no reasonable person can believe is within the confines of the constitutionally enumerated powers? What happens if a federal court invents a right out of whole cloth, such as mandating gay marriage upon the states two years after conceding it’s a state issue? Are we completely at the mercy of that edict and forced to embark on the impossible task of amending the Constitution the government or the court just illegally amended? Hell no. And a Tennessee representative is leading the charge with a new bill that will restore the constitutional balance of power once and for all.
The federal government is only supreme over state laws if its laws are “in pursuance” of the Constitution. If we allow the federal government’s actions to be supreme – not just in a gray area of dispute, but when they are unambiguously unconstitutional – then we quite literally have no Constitution. If the federal courts are the final arbiters of the Constitution, then again, we have no separation of powers to speak of. This is the era we are living through today, and if there is ever any hope of restoring the Constitution, we must follow our founders, who believed that the Constitution rests in the whole of the people.
Sure, within their respective spheres of influence and leverage, all branches of the state, federal, and county governments have certain specified or implied powers. But no one branch is supreme over the others (other than the Supreme Court over the inferior courts within its branch of government). Our founders envisioned that the people would jealously guard their constitutional rights and, through the three levels of local, state, and federal governments, would use their respective powers and influence to fight for the Constitution rather than surrendering to any one branch’s usurpation of it. The Supreme Court was not regarded as the final authority on a fundamental constitutional question affecting the whole of the people. The law of the land is the Constitution itself, not any single branch. (See more about judicial supremacism vs. constitutional decompartmentalism here.) (You can listen to my podcast series here, here, here, here, here, and here.)
In Tennessee, Rep. Bud Hulsey (R) introduced a bill (HB 726) that would involve the people, all branches of the state government, and the county governments in constitutional interpretation affecting vital policies when they believe the federal government is clearly wrong. Either the governor may issue an executive order declaring the federal policy void; any member of the legislature can trigger a floor debate and vote to nullify the policy; a state court may declare said policy unconstitutional if it arises during the course of a legitimate case or controversy; any combination of 10 local governing authorities – either through their respective executives or legislative branches – may submit a petition for nullification that triggers a vote in the legislature; and any group of 2,000 registered Tennessee voters may submit a similar petition triggering an automatic legislative vote on nullification.
Once such a bill passes (or a policy is implemented by the governor via executive order), it would be unlawful for any state or local official to assist or fund the policy in any way. When factoring in the constitutionality of a federal policy from any of the three branches, the state legislature must consider the plain text of the Constitution, the ratification debates, state constitutions, the original members of Congress and the Supreme Court, and statements on natural law by philosophers whose wisdom was drawn upon by the framers of the Constitution.
This law would have no statute of limitations, meaning that it could trigger a debate and vote on any law of Congress, executive policy, or precedent from a court ruling.
This is one of the most beautifully written bills I’ve seen in a long time. It would finally restore constitutional supremacy by calling upon the whole of the people and all their respective branches of government to scrutinize governmental policies against an original standard constitutional interpretation. Constitutional interpretation was given over to every elected state and federal official as well as the judges of the courts, who all swear an oath to uphold the federal Constitution in addition to the state constitution.
This bill is a fulfillment of exactly what our founders had in mind when the federal government usurps powers belonging to the states or the people. Sure, there is no state veto on legitimate federal authority over simple disagreement with the policy. But even Alexander Hamilton, the chief proponent of federal power himself, makes it clear that the Supremacy Clause of the Constitution only applies to lawful federal powers. "It will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land," wrote Hamilton in Federalist #33.
The entire foundation of the U.S. Supreme Court’s power to get involved in constitutional interpretation, as opposed to merely interpreting statute, is built upon Marbury v. Madison. In Marbury, Chief Justice Marshall said that it would be “immoral” and “a crime” to issue an opinion contrary to the Constitution. That applies to the other branches of state and federal governments as well.
Since World War II, and accelerating in our times, the federal agencies and courts have remade our lives with social transformation without representation. Those two branches have absolutely no law-making authority, even if their policies comported with the Constitution, which they usually don’t. So what are we supposed to do? Sit back and take it? The Tennessee constitution has a provision similar to that in many state bills of rights repudiating this notion. "That government being instituted for the common benefit, the doctrine of nonresistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind," reads Article I, Section 2 of the Constitution of Tennessee.
Every officeholder has a responsibility to exercise his powers only in concert with the way he understands the Constitution. During his sixth debate with Stephen Douglas during the 1858 race for Senate in Illinois, Abraham Lincoln asserted: “Judge Douglas understands the Constitution according to the Dred Scott decision, and he is bound to support it as he understands it. I understand it another way, and therefore I am bound to support it in the way in which I understand it.”
Obviously, during a time of constitutional stability, it makes sense that some would believe that the few gray-area disagreements should be decided by the federal courts and deference should be given to the supremacy of federal powers over the states. But in this post-constitutional and indeed post-humanist and post-enlightenment era, if we are going to unilaterally disarm in front of any unambiguous assault on our way of life, we are the ones guilty of perpetuating the unconstitutional power-grabs.Now a half-century into the complacency of the conservative movement and the perfidy of the GOP, there is no silver bullet to winning back our freedom and way of life. But this Tennessee bill is probably the closest thing to that multiplying force for good that we’ve been looking for.