What too many Republicans get wrong about the Constitution

Every Republican seems to agree that our country has been taken over by a post-constitutional junta that usurps power to achieve its insidious objectives rather than follows the rule of law. But when it comes to redressing those usurpations with the only tool James Madison gave us — federalism — our elected officials too often shirk their responsibilities. Worse, they declare that the egregious usurpations are, in fact, the law of the land.

The latest victim of this dangerous post-constitutional dogma is Tennessee Attorney General Jonathan Skrmetti.

This is by far the most dangerous myth Americans must purge from our law and body politic if we ever hope to remain a free people.

As part of a growing movement to push back against federal overreach, Tennessee lawmakers earlier this month introduced SB 2775, the Restoring State Sovereignty Through Nullification Act. The bill would empower all state and local government stakeholders to pursue a process barring the enforcement of unconstitutional federal laws within the Volunteer State.

While similar bills empower only the state attorney general or legislature to interpret the Constitution, SB 2775 would leave that power in the hands of the whole people — as it was always meant to be.

Here’s how it would work. The law would permit the governor to issue an executive order declaring a federal policy null and void. Or any member of the legislature could trigger a floor debate and vote to nullify the policy. Or any state court may find the policy unconstitutional if the question arises during a legitimate case or controversy. Or any combination of 10 local governing authorities — either through their respective executives or legislative branches — may submit a petition for nullification that would trigger a vote in the legislature. Or, last but not least, any group of 2,000 registered voters could submit a similar petition triggering an automatic legislative vote on nullification.

In other words, the bill underscores how we are all responsible for safeguarding the Constitution. When everyone understands the federal government frequently oversteps its boundaries, we have an obligation to push back.

Constitutional confusion

Enter Skrmetti, whose office last week declared SB 2775 “unconstitutional.” The attorney general’s argument isn’t new. He, like a great many of his colleagues, accepts the dual premise that the federal government is supreme to the states in constitutional interpretation and that, within the federal government, the judiciary is king.

“Legislative action that vests the legislature itself with the authority to nullify unconstitutional federal action is not permissible because it arrogates to itself the power to interpret the law that properly belongs to the judiciary,” the attorney general argued. “In short, under the Tennessee Constitution, the judicial branch alone has the power to determine the constitutionality of federal action.”

Not so!

Let’s begin with Skrmetti’s Supremacy Clause claim. True, states may not enact laws that are contrary to federal laws or the Constitution. But the Constitution only makes the federal government supreme when Congress passes and the president signs laws that accord with the charter’s enumerated powers.

For example, Congress may place tariffs on imported goods because that is a power enumerated under Article 1, Section 8 of the Constitution. Just because a tariff might be unfair to some states under certain circumstances does not make the tariff unconstitutional. A state may lobby and complain, but the Constitution is clearly on the side of Congress.

But what happens if the feds decide to force everyone in a state to wear a mask?

Alexander Hamilton, the most ardent supporter of a strong national government among our founders, told us what he thought would happen in such a circumstance. “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," Hamilton wrote in Federalist 33.

Roger Sherman argued in a December 1787 letter that when the federal government would promulgate a regulation clearly beyond its jurisdiction, the states could easily push back without running to the courts. Sherman wrote:

And tho' the general government in matters within its jurisdiction is paramount to the constitutions and laws of the particular States, yet all acts of the Congress not warranted by the constitution would be void. Nor could they be enforced contrary to the sense of a majority of the States. One excellency of the constitution is that when the government of the United States acts within its proper bounds it will be the interest of the legislatures of the particular States to support it, but when it overleaps those bounds and interferes with the rights of the State governments, they will be powerful enough to check it; but distinction between their jurisdictions will be so obvious, that there will be no great danger of interference.

That sounds exactly like what SB 2775 seeks to reinforce.

The most dangerous myth

Skrmetti asserts that only the courts have the final say over constitutional arguments. He cites the Supreme Court’s 1958 decision in Cooper v. Aaron, which was ostensibly about desegregation but really a brazen assertion of judicial supremacy. “The basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution,” Chief Justice Earl Warren declared, is “a permanent and indispensable feature of our constitutional system.”

Warren was wrong. The Supreme Court is not king. It does not have the last word. This is by far the most dangerous myth Americans must purge from our law and body politic if we ever hope to remain a free people.

The very rationale undergirding the concept of the courts also having a say in constitutional interpretation (despite being unelected) — namely, that judges swear an oath to uphold the Constitution — is a repudiation of the idea of judicial supremacy.

After all, every member of the federal and state government also swears an oath to the Constitution. The same way a federal judge can’t violate his oath by giving the force of law in a case or controversy to an unconstitutional law, an elected state or federal official cannot promulgate, fund, or enforce an edict of a court that violates the Constitution.

Chief Justice John Marshall said in Marbury v. Madison that it would be “immoral” and “a crime” to issue an opinion contrary to the Constitution. “How immoral to impose it on them if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!” an indignant Marshall thundered in his most famous opinion.

In defense of judicial review, Marshall asked, “Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government? If it is closed upon him and cannot be inspected by him?”

This same argument comes back around when, for example, a federal judge issued a shocking ruling that Knoxville, Tennessee, school children had to wear a mask for seven hours a day. Nobody alive could justify that edict as a federal power — judicial, executive, legislative, or otherwise.

State and county officials had an obligation to set that ruling aside the same way Marshall believed a court would be obliged to do if Congress passed a law forcing people to wear masks.

Madison 1, Skrmetti 0

How can one branch, particularly the life-tenured unelected branch, be the sole and final arbiters of the boundaries of its own powers as well as that of the states and other federal branches?

As Thomas Jefferson admonished in his Kentucky Resolution of 1798, “The government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers.”

The Congressional Research Service observed in a 2017 report that “early history of the United States is replete with examples of all three branches of the federal government playing a role in constitutional interpretation.” Members of Congress weren’t so complacent in their duties and, the CRS noted, never sat idly while allowing the courts to have “a final or even exclusive role in defining the basic powers and limits of the federal government.”

Prior to the 20th century, most federal legislators subscribed to Madison’s view in Federalist 49 that “the several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.” Madison emphatically believed that “each [department] must in the exercise of its functions be guided by the text of the Constitution according to its own interpretation of it.”

Skrmetti could not be more off target by citing the Tennessee State Constitution as rationale for obsequiously crowning the federal judiciary the sole expositors of the U.S. Constitution.

In fact, Article 11, Section 16 of Tennessee’s constitution makes it clear that the state’s declaration of rights “shall never be violated on any pretense whatever.”

So, what is the remedy when federal officials violate those rights? Cry to the courts and hope for the best? Nope.

“To guard against transgression of the high powers we have delegated, we declare that every thing in the bill of rights contained, is excepted out of the General powers of government, and shall forever remain inviolate.”