Thursday, December 2, 2010

Honoring the founders

Dana Milbank has an op-ed at the Washington Post entitled "A strange way to honor the founding fathers." It begins,
Republicans gained control of the House last month on a promise to "restore the Constitution." So it is no small irony that one of their first orders of business is an attempt to rewrite the Constitution.

On Tuesday, Rep. Rob Bishop (R-Utah), a member of the House GOP's majority transition committee, introduced a constitutional amendment that would allow a group of states to nullify federal laws with which they disagree.

My question is how does amending the Constitution in any way dishonor the founders? The founders themselves explicitly provided the authority and procedures by which the Constitution can be amended. Indeed, it's been amended 27 times. Did we dishonor the founders when we passed amendments to abolish slavery or give women the right to vote?

And where is the irony in allowing the states to act as a check against overstepping by a federal government whose only power derives from those very states? Millions of Americans believe that the federal government has abused the powers lent to it. They believe the Supreme Court, charged with protecting and preserving the Constitution, has proved itself a conspirator in a Washington power grab that perverts and exceeds the scope of that document. Therein lies the irony; therein lies the dishonor.

And yet, there is nothing new in this. No group, not even a constitutionally elected federal government, is capable of internally policing itself for very long. Men have ambitions and agendas. It's only natural that they will push at the boundaries of their authorities in order to advance them -- hence the need for checks and balances. And when the internal checks and balances prove inadequate, isn't it logical to look to external ones, in this case the states keeping tabs on an institution they themselves empowered?

Milbank vilifies the doctrine of nullification -- the idea that a state has the right to invalidate a federal law if it deems it to be unconstitutional. He attempts to tarnish it by associating it with slavery and segregation. But both Madison and Jefferson, two of the founders Milbank claims would be dishonored by such a thing, argued in favor of nullification in their Kentucky and Virginia Resolutions.

It's worth noting that Madison and Jefferson asserted that individual states have a right to invalidate unconstitutional federal laws and that this right is upheld by the Constitution. In other words, no amendment is required.

It's silly, then, for Milbank to argue that a properly ratified constitutional amendment, which would require two-thirds of the states to agree that a federal law is unconstitutional before it could be set aside, in any way dishonors the founders or the Constitution.

Update: Ann Althouse agrees:
Dana Milbank notes "the unfortunate echo of nullification," but nullification was the idea that individual states could disregard federal law they opposed. The Repeal Amendment would institute an orderly structural safeguard as part of the Constitution, a check on federal power that requires a supermajority vote of the states.
. . .
Since the Repeal Amendment, proposed by Randy Barnett, can easily be portrayed as an effort to return to something closer to the balance of power provided for in the original Constitution, it is pretty silly to portray yourself as brimming with respect for the Founders when what you really support is the shift of power to the national government that occurred over the long stretch of time, a shift that the courts have allowed to take place.

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