EXECUTIVE WATCH

Evidently, the way to get reelected in Texas is to fan the flames of states’ rights and secession. At least that appears to be Governor Rick Perry’s strategy. Locked in a reelection race against Senator Kay Bailey Hutchison, Gov. Perry appeared at a rally yesterday where his crowd screamed for secession. After the event, Gov. Perry offered that it could come to that. This came a day after Gov. Perry publicly endorsed a resolution that Texas call upon “the federal government, as our agent, to cease and desist, effective immediately, mandates that are beyond the scope of [its] constitutionally delegated powers; and, … [t]hat all compulsory federal legislation that directs states to comply under threat of civil or criminal penalties or sanctions or that requires states to pass legislation or lose federal funding be prohibited or repealed.” This may call to mind the states’ rights populism of bygone Governors like George Wallace and Orval Faubus, but it is strikingly modest compared to the crackpot resolution passed by the Georgia Senate on (when else) April Fool’s Day:

that any Act by the Congress of the United States, Executive Order of the President of the United States of America or Judicial Order by the Judicatories of the United States of America which assumes a power not delegated to the government of the United States of America by the Constitution for the United States of America and which serves to diminish the liberty of the any of the several States or their citizens shall constitute a nullification of the Constitution for the United States of America by the government of the United States of America…. [And t]hat should any such act of Congress become law or Executive Order or Judicial Order be put into force, all powers previously delegated to the United States of America by the Constitution for the United States shall revert to the several States individually. Any future government of the United States of America shall require ratification of three quarters of the States seeking to form a government of the United States of America and shall not be binding upon any State not seeking to form such a government.

If we were to take the Resolution seriously (admittedly this may be too great a suspension of disbelief even for a measure that passed by a vote of 43-1), Georgia has almost certainly already seceded.

The Resolution cites unauthorized criminal laws as among the usurpations of the federal government (the only federal crimes the resolution considers to be authorized are those specifically enumerated in the Constitution – counterfeiting, piracy, treason, and the like). Under this formulation, the Georgia Resolution would declare the Constitution to be dissolved, if a federal court has sentenced any Georgia citizen for violating federal narcotics laws since April 1. Over the past decade, a great deal of interesting work has been done on the idea of constitutional construction outside the courts. These examples should provide a caution for anyone who might be inclined to romanticize the capacity of the people or the political branches to engage in real constitutional construction. The results can be laughable (if they amount to no more than legally irrelevant resolutions) but I fear that they could actually prove dangerous. The examples above are by no means isolated. Governor Perry’s turn at demagoguery was one installment of the nationwide “Tea Party” tax protests. The Georgia and Texas Resolutions are about as useful an exercise in constitutionalism as tracts of tax protestors are to understanding the validity of the Internal Revenue Code. The arguments about the nature of our federal system found in the Georgia Resolution have been thoroughly repudiated by a long and well-settled line of cases the highlights of which include such classics as McCulloch v. Maryland and Texas v. White. The Georgia Resolution cannot be bothered to acknowledge, let alone to challenge or distinguish these precedents or inconvenient historical facts such as the Civil War. There is some pedigree, though not at all a proud one, for the states’ rights arguments contained in the Georgia Resolution. The Resolution’s use of the term “nullification” is not accidental. It places the legislation in the tradition of the nullification controversy of the early nineteenth century. The Georgia Resolution goes well beyond the claims of that failed theory, however. The nullifiers claimed the authority of the states to determine for themselves whether a federal law violated the Constitution and was, therefore, void. The nullifiers never claimed that an invalid federal law would nullify the Constitution itself. The Resolution also follows in the footsteps of assertions of states’ rights advocates who asserted the doctrine of interposition – the power of states to protect their own sovereignty against alleged federal encroachments – which was most recently asserted by southern Governors who sought to perpetuate racial segregation in the wake of Brown v. Board of Education and in the face of the Civil Rights Movement. Given the amnesia of the Georgia Resolution, it can hardly be taken to provide an edifying elaboration of the Constitution’s meaning. Moreover, by failing to contend with the horrible consequences that these theories wrought in the past, the Resolution has dangerous protent, especially if it is part of a national movement. I do not mean to claim that people other than judges and lawyers do not and should not think about how to realize the Constitution’s promise. The Texas and Georgia Resolutions, however, should lead us to a renewed commitment to the fundamental role that the judiciary has to play in elaborating the meaning of the Constitution and in resolving significant constitutional controversies.