Bluegrass Beacon: Nullification, anyone?

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It’s appropriate that Rowan County Clerk Kim Davis’ personal act of nullification in the form of refusing to grant marriage licenses to gay couples occurred in the state that passed the most-adamant resolution in American history supporting invalidation of the federal government’s attempts to assume powers not granted it by the Constitution.

The Kentucky Resolution penned in 1798 by founding giant Thomas Jefferson was a response to the Alien and Sedition Acts, which created  unconstitutional hardships for legal immigrants and made it a crime to “print, utter, or publish … any false, scandalous, and malicious writing” about the federal government. Those who hold the dangerous view that no legitimate cause for concern exists about an overreaching federal judiciary into our states or individual lives – and who want you to believe nothing could be done about it anyhow – often take that position because it best suits their personal political or cultural agenda.

Such thinking led to implementation of the Alien and Sedition Acts as the U.S. approached the brink of war with France during John Adams’ presidency.

The Federalists, Adams’ political party, wanted to quell criticism of the president’s policies by the Democratic-Republicans – the other major political party – while fearing immigrants living in the U.S. might side with France.

These trepidations resulted in the Acts being used exclusively against Americans associated with the Democratic-Republicans. The only journalists prosecuted under the Sedition Act, for example, were editors of Democratic-Republican newspapers.

It’s not unlike what’s currently happening in the culture war.

Critics of clerk Davis vociferously defend Federal Judge David Bunning for jailing her for refusing to acquiesce to a U.S. Supreme Court opinion disallowing gay-marriage bans – including the prohibition against such unions placed in the Kentucky Constitution by 75 percent of voters barely a decade ago.

“She broke the law,” they screech.

Yet these same zealots were previously silent while elected officials like former San Francisco Mayor Gavin Newsome unlawfully issued gay-marriage licenses long before the practice was legalized. Newsome gets a pass because his views were politically correct – if not lawful – ones.

Our founders surely didn’t intend for five unelected Supreme Court jurists to nullify the wishes of 1.2 million Kentuckians by overriding this commonwealth’s Constitution.

“The Constitution has erected no such tribunal, knowing that to whatever hands confided, with the corruption of time and party, its members would become despots,” Jefferson wrote.

Even Kentucky native and wartime President Abraham Lincoln – who once suspended habeas corpus – warned of the consequences of surrendering power to the Supreme Court.

“If the policy of government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court… the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of the eminent tribunal,” Lincoln said.

Jefferson also adamantly warned against the dangers of allowing the judiciary to usurp unjustified authority.

“To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy,” he penned.

The Constitution’s Supremacy Clause, which supporters of Bunning’s misguided decision will note, allows federal laws to trump state laws – but only if Congress is acting within its constitutionally authorized powers. Nowhere does the U.S. Constitution empower federal courts to change marriage or discard a state’s Constitution and unilaterally enact opposing legislation.

At the very least, Section 5 of the 14th Amendment, upon which the Supreme Court’s majority based its gay-marriage opinion, gives Congress the “power to enforce, by appropriate legislation, the provisions of this article.”

Until Congress or the Kentucky General Assembly acts, any constitutionally honest person must acknowledge that Davis acted in accordance with our commonwealth’s Constitution – unless we’re going to allow five unelected, unaccountable jurists in funny looking black robes to trash our guiding document on a cultural whim.

In which case, the Kentucky Constitution isn’t worth the paper it’s written on. This is precisely the type of situation for which nullification – as expressed in the Kentucky Resolution – was created.

Jim Waters is president of the Bluegrass Institute, Kentucky’s free-market think tank. Reach him at jwaters@freedomkentucky.com. Read previously published columns at www.bipps.org.