George Will is one of the brightest and most articulate columnists on the national scene (Washington Post Writers Group). I normally savor every one of his appearances on the opinion page. This is why I am disturbed by Will’s false and malicious criticism of presidential candidate Mike Huckabee (“Huckabee’s ‘appalling’ crusade for nullification”).[1] Will is a huge fan and student of baseball and occasionally writes a column on the subject. Using a baseball analogy, Will must know that his column’s pitches at Huckabee were not only far outside the strike zone but that they were intended as bean balls meant to injure and harm Huckabee. This disappoints because Will has not lowered himself to such levels in past columns that I have read.
Will claims to be “appalled” by Huckabee’s recent remarks that deal with the question of judicial error and overreach with regard to the Constitution, an issue that also concerns a great number of Americans. Will takes Huckabee to task for rejecting “judicial supremacy” and suggesting that a ruling by the Supreme Court does not make its ruling the “law of the land.” In doing so, Will incorrectly links Huckabee’s remarks with the pre-Civil War doctrine of nullification which arose in 1830 during Andrew Jackson’s presidency.
The doctrine of nullification evolved from resolutions initially adopted by the South Carolina legislature in December 1828 and which opposed certain tariffs imposed by the federal government. In opposition to President Jackson with regard to the tariffs, Vice President John Calhoun authored a lengthy essay on state government which supported the Southern position of state sovereignty and minority rights. According to the doctrine of nullification, individual states did not have to follow a federal law and in effect could “nullify” the law. By 1830, the nullification debate had evolved to the larger questions of origin and nature of the Constitution. Massachusetts senator Daniel Webster defended the federal position by “…attempting to show that the Constitution was not the result of a compact, but was established as a popular government with a distribution of powers binding upon the national government and the states.”[2]
It is misleading for Will to accuse Huckabee of crusading for nullification of federal laws at will because the Constitution was merely the product of a compact. Huckabee’s concern is with modern judicial efforts to create legislation as opposed to interpreting the law. What is interesting and lends authority to Huckabee’s position on interpreting the Constitution is Andrew Jackson’s response to the U.S. Supreme Court’s view of the constitutionality of a re-charter of the 2nd Bank of the U.S. Although the Supreme Court viewed the legislation passed by Congress as constitutional, Jackson did not and vetoed the legislation. The bank charter debate became the major issue of the 1832 presidential campaign.[3] In defending his veto, Jackson made a noteworthy description of the duties of the three branches of government with regard to interpreting the Constitution.
The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others…The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.[4]
In the first seven decades following the writing of the Constitution in 1787, the Supreme Court ruled only twice that a law created by Congress was unconstitutional, and both times the ruling was ignored by Congress and the President.
Marbury v. Madison
In the last hours of the presidency of John Adams, he made several Federalist judicial appointments in the District of Columbia in an attempt to further load the bench with Federalist appointees. Under President Adams, John Marshall was both Adams’ Secretary of State and the Chief Justice of the Supreme Court. As Secretary of State, it was Marshall’s duty to deliver President Adams’ legally executed appointments, but he failed to do so. When James Madison became Secretary of State under newly elected President Thomas Jefferson, the president refused to have the appointments delivered. The disappointed appointees sued, and in Marbury v. Madison (1803), Chief Justice Marshall and the Supreme Court at first ruled that the Court had no judicial authority over the case. Then with a surprisingly contradictory action, the Chief Justice ruled that President Jefferson should deliver the appointments. Jefferson and Madison ignored the ruling and received virtually no condemnation voiced by Congress, the Supreme Court, or the public. Jefferson called the Court’s attempt to interfere with the business of the Executive decision a “perversion of the law” by attempting to strike down the Judiciary Act of 1789 in which on two occasions the Supreme Court had found no objection or fault.[5]
Nineteen years later, Jefferson affirmed the general view of the Founders that any of the three branches could interpret the Constitution.
[E]ach of the three departments has equally the right to decide for itself what is its duty under the Constitution without any regard to what the others may have decided for themselves under a similar question.[6]
Jefferson specifically rejected the belief that the Judiciary was the final voice and described the damage to the Constitution of a contrary opinion.
[O]ur Constitution…has given – according to this opinion – to one of them alone the right to prescribe rules for the government of the others; and to that one, too, which is unelected by and independent of the nation…The Constitution, on this hypothesis, is a mere thing of wax in the hands of the Judiciary which they may twist and shape into any form they please.[7] [emphasis added]
Jefferson and the other Founders would be greatly alarmed with the modern view of the Judiciary that it may prescribe rules for the other branches of Government.
Dred Scott v. Sanford
Dred Scott was a Negro slave, a household servant for Dr. John Emerson who had taken Scott to various areas in the North where slavery was prohibited. Scott eventually sued for his liberty in Missouri courts and maintained that he was free because of his stays in a free state and a free territory. In March 1857, the Supreme Court ruled (Dred Scott v. Sanford) that Scott (and all other slaves) was not a citizen of the U.S. or the state of Missouri and therefore not entitled to sue in the federal courts. For Scott and all other slaves, the effect of the ruling reinforced the status quo of slavery and made it impossible for slaves to gain their freedom through the courts or legislation.[8] Effectively, the Supreme Court had declared that Congress could not outlaw slavery and that slaves were not citizens but property.
Several of Abraham Lincoln’s remarks in his first Inaugural Address were prompted by the Dred Scott decision.
I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court…At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made…the people will have ceased to be their own rulers, having…resigned their government into the hands of that eminent tribunal.[9] [emphasis added]
Like Jefferson’s response to the Supreme Court’s ruling in Marbury v. Madison sixty two years earlier, both Lincoln and the Congress ignored the ruling of the Supreme Court in the Dred Scott case. Not only was the ruling ignored but directly disobeyed. On June 9, 1862, Congress prohibited the extension of slavery into free territories and in 1863 Lincoln issued the Emancipation Proclamation ending slavery.[10]
Jefferson, writing to Abigail Adams in 1804, said of the Supreme Court, “[T]he opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action, but for the Legislature and executive also in their spheres, would make the Judiciary a despotic branch.”[11] [emphasis added] But this is what the Supreme Court has become in 2015 America. Thoughtful judicial interpretation of laws in light of the Constitution is the courts’ proper role. But through judicial activism by liberal judges usurping the role of the legislature in making laws, the courts have appropriated unto themselves a law-making role never intended by the Founders and breaches the coveted separation of powers.
Will is not only incorrect in his spurious charge that Huckabee was crusading for nullification, he crudely disparages Huckabee’s Christian faith because of his call for prayer for the Supreme Court justices considering the fate of same-sex marriage (See: 1 Timothy 2:1-2). He also belittles Huckabee’s well-founded concern that the nation is moving toward the criminalization of Christianity which is amply demonstrated by the growing trend of the judiciary and bureaucracy to punish Christians for practicing their faith.
In the age of the “living” Constitution, the Judiciary has made it pliable in order to accommodate the whims of a humanistic society unhooked from mores, norms, traditions, and voices of the past. In Jefferson’s words such a Constitution becomes, “…a mere thing of wax in the hands of the Judiciary which they may twist and shape into any form they please.” Combining the words of Jefferson and Lincoln, such a Judiciary would become a “despotic branch” and “the people will have ceased to be their own rulers.”
Larry G. Johnson
Sources:
[1] George Will, Huckabee’s ‘appalling’ crusade for nullification,” Tulsa World, May 15, 2015, A-15.
[2] Richard B. Morris, ed., Encyclopedia of American History, (New York: Harper & Brothers, Publishers, 1953), pp.167-168.
[3] Ibid., p. 173.
[4] Ibid.
[5] David Barton, Original Intent, (Aledo, Texas: Wallbuilder Press, 2008), pp. 275-176.
[6] Barton, p. 271. Quoting: Thomas Jefferson, Writings of Thomas Jefferson, Albert Ellery Bergh, ed., (Washington, DC: Thomas Jefferson Memorial Association, 1904), Vol. XV, p. 213, to Spencer Roane, September 6, 1819.
[7] Ibid.
[8] Morris, pp. 221-222.
[9] Barton, p. 272.
[10] Ibid.
[11] Barton, pp. 271-272. Quoting: Thomas Jefferson, Memoir, Correspondence, and Miscellanies, Thomas Jefferson Randolph, ed., (Boston: Gray and Bowen, 1830), Vol. IV, p. 27, to Abigail Adams, September 11, 1804.
