Bryan Fischer
Is it time for states to follow Madison and nullify Supreme Court rulings?
By Bryan Fischer
June 25, 2013

Follow me on Twitter: @BryanJFischer, on Facebook at "Focal Point"

(It should go without saying that in this column I am speaking just for myself and not for my organization. I am here seeking to contribute what I believe are important constitutional ideas to the debate over marriage. Let the discussion begin!)

"Nullification" is the legal theory that the States, as the creators of the Constitution and indeed the federal government itself, have the right to nullify any unconstitutional law passed by the federal government.

This theory was first advanced by Thomas Jefferson, the author of the Declaration of Independence, and James Madison, the father of the Constitution. They may be presumed to know what they were talking about.

In the suggestions I make in this column, I am simply standing on their shoulders. This theory is not my invention, nor is it a novel idea. It's been around since 1798. If anyone has a problem with it, his problem is with Jefferson and Madison, not with me. Of course, it's true that courts have rejected this theory. That is utterly unsurprising, as for courts to agree with this theory would be to accept a lesser role for themselves in American jurisprudence than the exalted one to which they feel entitled. The issue is not what courts have done, but whether what they have done is right.

The concept of nullification is gaining currency once again as one state after another reaches its saturation point of absorbing the heavy-handed and unwarranted dictates of the central government.

According to the Associated Press, "about four-fifths of the States have enacted local laws that directly reject or ignore federal laws on marijuana use, gun control, health insurance requirement and identification standards for driver's licenses."

Jefferson and Madison reminded Americans that the federal government is the creation of the States, not the other way round. Under the form of government given to us by the Founders and ratified by the first generation of United States Americans, the States are the master, the federal government the servant.

The States delegated to the central government certain powers of action, detailed in Article I, Section 8, and reserved every other power of action to themselves and to the people in the 9th and 10th Amendments.

Now conspicuous by its absence in the Constitution is any mention of marriage. Nowhere in the Constitution, in Article I, Section 8 or anywhere else, did the Framers 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 solely to 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.

Some will cite the 14th Amendment, of course, but the subject of marriage is not a part of the wording of that amendment nor was it a part of the debate over its ratification. Simply put, the 14th Amendment says nothing about marriage whatsoever. Those who cite it in support are simply guilty of judicial activism. The 14th Amendment was written solely for the purpose of granting full citizenship to newly emancipated slaves, and guaranteeing their right to vote.

So what should our response be if the Supreme Court overreaches this week, and imposes same-sex marriage on all 50 states?

James Madison wrote 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 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."

So what should States do if the Supreme Court overreaches again, as it its wont, and seeks to dictate marriage policy to the States? It may be time for the States, particularly the ones who have marriage amendments in their state constitutions, to "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, it may be time for the States and for Congress to perform an intervention with the Supreme Court. It may be time for direct action to break its addiction to its own power.

On this view, 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 they would simply ignore the Supreme Court and its judicial overreach. If this action is taken by the state legislatures, by the elected representatives of the various states, that wouldn't be rebellion. Far from it. It would represent the best of a republican form of government in action.

Congress likewise could and should simply refuse to recognize the legitimacy of any Supreme Court action that overturns 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 Supremes. If Congress doesn't surrender on this matter of constitutional law, what recourse does the Supreme Court have?

Were Congress and the States to do this – stand firm and unbending on constitutional principle – what could the Supreme Court do? Nothing. It has no police force. It has no power to enforce its unconstitutional will on anyone.

The authority of the Supreme Court is entirely a function of the good will of the American people, who are just at the point where they have had it with being pushed around by black-robed tyrants. The power of the Supreme Court is exclusively in its moral authority. If the Court oversteps its constitutional bounds and imposes sodomy-based marriage on the States against their will, it will have shredded what little remains of that moral authority. And neither the States nor Congress have any moral or constitutional obligation to surrender their rights under the Constitution.

If Congress and the States follow Jefferson and Madison and "interpose" themselves between a hyperactive judiciary, the Supreme Court may lose but the Constitution and the American people will win. I'll take that trade any day.

© Bryan Fischer


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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