We’ve discussed the increasing use of constitutional rhetoric on DeObfuscate before, but I wanted to delve into the issue a little deeper, and specifically addressing the “nullification movement” (a.k.a. “tenthers”) and the increasing rhetoric that everything President Obama does is unconstitutional.
If you’re not familiar with the idea of nullification it boils down to this: States can declare federal laws unconstitutional and thereby “nullify” them and make them void within their state. It’s the sort of flawed logic that got us into the Civil War, and it’s been a debunked legal theory since 1832. The primary legal inconsistency is that if Federal law can be nullified by states, then there’s no point in a federal government… and well, we’re basically back to the days of Articles of Confederation (and that worked out oh-so-well). There are a LOT more issues with nullification, but I won’t get into all of them here.
As an Attorney, you’re generally ethically bound to avoid asserting fringe legal theories as hard and true fact, and if it’s a totally debunked legal theory then you shouldn’t assert it at all. I have many Conservative Lawyer friends who would probably love living in a world where States can trump federal law whenever they feel like through nullification, but they would never assert that this is such a world. So I was surprised to see organizations like the Tenth Amendment Center and scholars like Thomas E. Woods describe nullification pretty much as a given. When I started poking around, i realized that Woods is a historian, not a legal scholar, and I couldn’t identify anyone with formal legal training associated with the Tenth Amendment Center. I don’t mean to suggest that a social or political movement needs attorneys or lawyers, but when your underlying claim is one to Constitutional interpretation, it might help.
But my main point in bringing all this up is the Rhetoric flowing out of if. Rhetoric has consequences. If you start with the assumption that the Constitution stands for what “tenthers” say it does, then it’s true: Everything President Obama’s done might be Unconstitutional. Of course, by that measure everything George W. Bush did was also unconstitutional, as was anything done by Clinton, Reagan, Nixon, Johnson, etc. all the way back to George Washington. But that fact is lost in all the rhetoric describing Obama’s supposed unconstitutional assault on our “freedom”. Rhetoric that leads Representatives in Colorado to call Obama a greater threat than Al Qaeda, or another in Tennessee to suggest secession from the U.S.. Combine that with the below video promoting “Nullify Now” get-togethers, which features gun-shots and machine guns firing in the background and things look pretty ugly.
As Americans, no matter what our ideology, we’d expect a natural inclination to “honor and defend” the Constitution of the United States. It’s what our soldiers do, and it’s what our elected officials are supposed to do. By bypassing a generally acceptable framework for constitutional interpretation and substituting their own as fact, the nullification movement manages to evoke people’s passions while avoiding the more difficult (and likely unpopular) issue of what a world with nullification would actually be like.
So, not that I really want to propound my own flavor of Constitutional Rhetoric, but, given the widely accepted view that nullification is a dead legal concept, those who continue to support it are … well… striving for something Unconstitutional.