Will the Supreme Court Put Itself on the Wrong Side of History?
Publisher’s note: With the decision by SCOTUS down to days or hours, this timely and very well thought out, if necessarily a tad lengthy, article by Tim Dunkin is a must read.
Tim very clearly points out the parallels between what the slave owners of yesteryear and the powerful “Big Gay” lobby of today are doing.
I would ask that all of my readers take the time to read and consider Tim’s argument.
Tim Dunkin: Sometime later this month, possibly as early as next week, the Supreme Court of the United States of America is going to impose gay “marriage” onto every state in the union. They will not do so because there are any sound or convincing moral, ethical, legal, or (especially) constitutional arguments in favor of gay “marriage.” Rather, they will do so because the political class in America wants it, and as recent experience has shown, the political class nearly always gets what it wants, regardless of what We the People think.
The Left likes to flatter itself by asserting that the push for gay “marriage” is about liberty. Indeed, they have been quite successful in convincing themselves that it is the “new civil rights struggle,” as if the push for a special redefinition of marriage for the benefit of a group of people who choose their lifestyle and who already enjoyed equality before the law and the full panoply of constitutional liberties, and who are in fact more well-off than the average American, can in any way, shape, or form compare their experience with an entire race of people (born that way) who spent several centuries in slavery, and then another century after that being cheated of the civil rights that they had been promised but never really given. Please. What tone-deaf, illiterate nonsense on the part of the gays and their supporters.
Instead (as I have been pointing out for years, and which recent months have been proving me right about), the radical gay agenda is antithetical to our constitutional rights. Freedom of religion? Nope. Freedom of association? Nope. Freedom of speech? Nope. The Left has systematically been setting out to use the power of government to curtail exactly those constitutional liberties that would allow folks to live their own lives apart from having to support the gay agenda, among other things, with which they disagree. Gay “marriage” has been playing a huge, huge part in this destruction of liberty.
In doing this, the Supreme Court will be mimicking in spirit an earlier terrible ruling that also set back the cause of the expansion of genuine liberty in America for decades – the case of Dred Scott v. Sandford.
The parallels here are uncanny. In the Dred Scott case, the Supreme Court ruled in favor of a small but wealthy minority, generally localized into a certain geographical area, which purported to represent its entire section but which really did not, and which used its disproportionate political power to dominate one political party while bullying the other into acquiescing to its wishes most of the time. The slaveholding plantation owners, always a small percentage of the population, nevertheless were the wealthiest people in the South, and held more wealth in aggregate than even northern industrialists and shipping magnates at the time. This slaveholding class was concentrated, for the most part, in the flatlands of the Atlantic and Caribbean coasts, and up the Mississippi river. The slaveholders constantly presented themselves as the representatives of “the South,” even though most Southerners didn’t own slaves, and the small farmers in the mountains had almost nothing in common with them. Before the war, they largely controlled the Democratic Party, and were able to influence the Whigs far more than they should have.
So today, the Supreme Court is set to rule in favor of a small but wealthy minority, generally localized into a certain geographical, which purports to represent its entire section but which really does not, and which uses its disproportionate political power to dominate one political party while bullying the other into acquiescing to its wishes most of the time. Gays are wealthier, per capita, than the average American due largely to the fact that their lifestyle is a concomitant with the decadence that generally attends to wealth and leisure. Gays are mostly found in liberal enclaves on the coasts and around a few major progressive cities in the interior. Gays purport to find support among the large majority of Americans, even though they do not (as the actual voting has always shown). And gays pretty much control the Democrat Party, and have been successful in cowing most Republican politicians into yielding to them as well.
The one other parallel, of course, is that both groups – the slaveholders of yesteryear and the gays of today – support using the power of government to allow them to force their will onto other people. The slaveholders used whips and chains. The gays use “anti-discrimination” laws that are interpreted to allow them to force participation in their ceremonies by people who would otherwise choose not to. In both cases, the victims are coerced into acting against their will. Perversely, both groups believe(d) they were/are “supporting liberty.” The slaveholders supported the “liberty” to own other human beings as property, while gays support the “liberty” to force other human beings to use their own property to do what the gays want them to.
The gays and their allies are surely going to be ecstatic when the Supreme Court rules in their favor. Likewise, the slaveholders were ecstatic when the Dred Scott decision was handed down. That case was a complete and total victory for the slave power. It effectively denied American citizenship to escaped slaves, denying them the constitutional liberties that whites enjoyed. It destroyed the Missouri compromise and allowed slavery to expand into the territories once again. It destroyed the hopes of millions of black slaves that they might be able to find any sort of equitable redress from the government.
Ultimately, Dred Scott led to the Civil War, in part because the slave power was so emboldened by the decision that it kept pushing and pushing and pushing into the matter finally came to a head. Likewise, I cannot imagine that if the gays, emboldened as they will be by the decision in Obergefell v. Hodges, keep pushing and pushing, next going after churches that don’t perform gay “marriages” and criminalizing speech against homosexuality (as is currently the case in Canada and elsewhere) and continuing to pursue and destroy business owners who disagree with them, that the matter won’t come to a head violently. People will only take so much destruction of their liberty before reaching the point where no amount of propaganda from the media will keep them sedated.
So how do we avoid this end result?
The answer is really actually pretty simple – though it will require quite a bit of political courage to implement, at least at first. The answer is nullification by the states.
There really are two routes to nullification which the states can pursue. The first is nullification by a simple refusal to comply or provide assistance to the federal government (known as the doctrine of “anti-commandeering”). The second is outright declaration of nullification via statute. In both cases, the federal government has little recourse to do anything about it.
First, let’s look at anti-commandeering. Anti-commandeering is a principle which reaches as far back as its articulation by Madison in the Federalist papers, and which has generally been upheld by federal courts for nearly two centuries. What this principle essentially says is that no state can be required by the federal government to give aid or support to the federal government’s efforts to enforce a federal law within that state’s jurisdiction. States do not, for instance, have to provide the support of police or other personnel, state computer systems and other data sources, and so forth to the federals when the feds seek, for example, to enforce a gun law in that state. Montana or Tennessee or Kansas can legally pass a law that says “No, we’re not going to provide you with any material support in enforcing this type of law within our state’s borders.” The feds will then have to enforce it using their own resources – which makes it much, much tougher on them since the feds generally rely on state personnel and resources to help them. Deny them that, and they are stretched much thinner and are much less able to coordinate information and tactics than they would be with state assistance. They’re not actively impeding the federal government, but they ARE refusing to provide assistance. Again, let me remind you, not only is this legal, but it has been settled legal doctrine in this country for quite a long time.
In Federalist no. 46, Madison bluntly proposes anti-commandeering as a remedy for federal overreach. He said, among other things, that the people of the state themselves could refuse cooperation with federal officials, that state legislatures and governors could pass laws to impede and hinder the federal government from enforcing a law, that state officials could deny assistance to the feds, and that states could work together to form common plans for opposing federal action.
Indeed, far from being some way out, radical doctrine, it has a long and honorable history in this country. In 1842, the Supreme Court decided the case of Prigg v. Pennsylvania in favor of the slave power as well. This case involved one Edward Prigg, a slave-catcher whose job it was to track down and return escaped slaves to their owners. In 1837, Prigg led an “asset recovery team” into Pennsylvania and captured a free black woman living in the state who had formerly been owned by a Maryland slave owner and who lived in virtual freedom but had never officially been emancipated. The slave owner’s children wanted to take her back as a slave and so sent Prigg and his team in. Prigg was arrested by Pennsylvania authorities and convicted of violating that state’s law against capturing escaped slaves and returning them to their state of origin. Prigg appealed his conviction and the case went all the way to the Supreme Court, which ruled in his favor, basically saying that Pennsylvania’s fugitive slave law could not override the federal Fugitive Slave Act and the US Constitution (Art. 4, Sect 2).
However, in his opinion, Justice Joseph Story observed that while Pennsylvania couldn’t nullify a constitutional federal law (which, sadly, it was), Pennsylvania and other states could refuse to cooperate with the enforcement of the federal law. This, then, was the genesis of the personal liberty laws which Pennsylvania and many other Northern states passed in the 1840s – laws which explicitly precluded any state officials or property from being used to aid in the recovery of escaped slaves. The plantation owners hated these laws and many slaves found freedom because of them.
Anti-commandeering is being put into practice by an increasing number of states. Several states had passed laws that legalize marijuana, for instance, and which deny the use of state resources for the enforcement of federal drug laws. Other states have been filing and passing bills that (among other things) bypass FDA regulations about experimental drugs so as to allow terminally ill patients access to potentially lifesaving medicines, refuse state cooperation for the enforcement of firearm and environmental laws, deny resources and assistance to the NSA and its activities in spying on the American people, etc. All in all, over 200 bills have been filed this year in state legislatures all across the country.
How would this apply to the issue of gay “marriage”? One answer comes to us today from North Carolina, which just overrode the veto by spineless Republican governor Pat McCrory of that state’s opt-out religious freedom bill. This bill, SB2, allowed state magistrates, judges, county clerks, and other people in government who can perform marriages to choose to opt out from performing marriages that conflict with their consciences. Essentially, this bill says that no state official can be coerced into performing a gay “marriage” against his or her conscience, or else face jail time and other punishments. The Supreme Court can “legalize” gay “marriage” at the behest of the radical homosexual lobby, but North Carolina has basically just told the Court that it can’t force state officials to participate in them. And really, there’s precious little the federal government can do about it. The bill doesn’t ban gay “marriage” – it simply prevents the commandeering of state officials into enforcing it against their wills.
Anti-commandeering is the easier, though less effective, way of nullifying federal overreach, such as the imposition of gay “marriage” onto all 50 states will be. Declared nullification would be more effective, yet more costly in terms of courage and fortitude.
I’ve shown previously that despite the misconceptions of people who slept through their middle school civics course, outright nullification is not actually “illegal” and the Nullification Crisis of 1832 didn’t bury nullification as a legitimate doctrine once and for all. Indeed, not only did the Founders who wrote the Constitution believe that nullification of unconstitutional federal actions by the states was legitimate – they thought it was REQUIRED, if liberty was to be maintained. In Jefferson’s draft of the Kentucky Resolutions (1798), he wrote,
“…where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact…to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them…” (Jefferson’s draft of the Kentucky Resolutions, 8th resolution)
Hamilton wrote in Federalist No. 33,
"But it may be again asked, Who is to judge of the necessity and propriety of the laws to be passed for executing the powers of the Union? I answer first that this question arises as well and as fully upon the simple grant of those powers as upon the declamatory clause; and I answer in the second place that the national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. The propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded. Suppose, by some forced constructions of its authority (which, indeed, cannot easily be imagined), the federal legislature should attempt to vary the law of descent in any State, would it not be evident that in making such an attempt it had exceeded its jurisdiction and infringed upon that of the State? Suppose, again, that upon the pretense of an interference with its revenues, it should undertake to abrogate a land tax imposed by the authority of a State; would it not be equally evident that this was an invasion of that concurrent jurisdiction in respect to this species of tax, which its Constitution plainly supposed to exist in the State governments?"
In Madison’s Report of 1799-1800 on the Virginia Resolutions, he observed several important points about the relationship of unconstitutional federal acts vis-à-vis the states. Among these observations were that the states, not the federal government itself, were the final authorities on any question of whether the federal government had violated the Constitution, and their decisions were unappealable; that none of the three branches of government had the power to annul the authority of the states; and that the judicial branch (e.g. the Supreme Court) was as subject to this as the other two branches and thus the states had the right to overrule federal court decisions found to be unconstitutional.
Keep in mind – Jefferson, Hamilton, Madison, these guys were primary actors in writing the Constitution. If anyone ought to know what the original intent and the proper interpretation and application of its principles are, it would be them. These guys supported, and indeed advocated, nullification. It’s not some strange, weird, outside-the-box legal principle – it’s sound constitutional policy that the states can, and in the opinion of Jefferson, MUST use if our system of liberty is to be maintained.
If the Supreme Court rules in favor of imposing gay “marriage” on the states, it will be an unconstitutional ruling. Nowhere in the Constitution is any branch of the federal government granted the enumerated power to define marriage, or even involve itself in the institution in any way. The “Equal Protection” clause in the 14th amendment cannot apply here, because in every single state where gay “marriage” was barred, gays were nevertheless still equal before the law. Equality before the law does not mean that your personal preferences are encoded into law, it means that the laws apply to you equally as they do to everyone else. In every single case, gays and straights had the exact same access to the institution of marriage, and single gays were on the same equal footing as single straights with respect to access to benefits and privileges. As such, there is simply no credible case to be made that the imposition of gay “marriage” is either a constitutional necessity or is even constitutionally allowed.
As such, each state that desires to do so is completely free to not only prevent commandeering of state personnel and resources, but to outright nullify a pro-gay “marriage” ruling and simply declare it unenforceable within their state. And again, what will the federal government do about it? Send in the 82nd Airborne into Oklahoma City to force state magistrates to marry gays at gunpoint? I don’t think so. Not unless they want to incite unrest and civil disobedience all over the country like they’ve never seen before, and which would paralyze them completely.
No, the real hurdle to nullification is psychological – because the states have been so cowed by the federal government for the last 150 years, the idea of actually and effectively resisting federal usurpations through nullification seems radical and strange. Nobody does that! Why, that’s…that’s…that’s unthinkable! But really, it’s not. If friendly state governments can be convinced not only of the legitimacy of nullification, but also the possibility of it, then not only gay “marriage,” but a whole host of other federal usurpations could begin to be rolled back, and the proper balance between the states and the federal government could be restored. I’m not saying that it wouldn’t be an extremely hard row to hoe – but wouldn’t it be worth a try, if it meant restoring genuine liberty across this land?