In a day and age when the federal government is despised, out-of-control and has so many laws on the books that it makes your head spin, there is at least one ‘conservative’ who is concerned that the federal government isn’t dishing out enough law and order.
In a recent post at the conservative legal blog Volokh Conspiracy, Todd Zywicki finds it appalling that the Department of Justice is celebrating the fact that the Defense of Marriage Act was declared unconstitutional by the Supreme Court. He doesn’t feel this way because of his opinion on DOMA, but rather he is concerned that the law is being disrespected by the Obama administration.
“I am clearly not alone in being concerned about the unwillingness of state and federal officials to defend the duly-enacted laws of their states. Indeed, refusing to defend the law and acquiescing in an adverse judgment against it seems tantamount to a retroactive veto by the Executive Branch. If Eric Holder is ‘delighted’ that the law is invalid, wouldn’t the appropriate response in our system of government be for the President to propose the repeal of the law with which he disagrees, rather than effectively retroactively vetoing it?”
Zywicki has a point about the law being disrespected by the Obama administration. From drone murders, to illegal surveillance, to arming drug gangs as a pretense to curtail gun rights, to funding Islamic extremist dictators, the Obama administration has made a complete mockery of the rule of law in America. But the recent DOMA ruling isn’t the case to complain about. Whether you support the decision or not, the idea of state non-compliance with federal laws shouldn’t be on trial here. The problem with our country clearly isn’t the fact that too many states have rebelled against the edicts of the federal government. On the contrary, it has been the states routinely jumping into the federal snake pit that has gotten us into this mess.
The founding fathers also disagree with Zywicki’s take on this matter. James Madison eloquently commented on the necessity of states standing up to the federal government in Federalist #46.
Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.
Madison knew the benefits of gridlock and feared the power of a runaway central government operating without checks and balances. It is too bad that the legal opinions dominating our day don’t seem to take the words of the founding fathers into account very often. The so-called legal experts are usually more than happy to come up with bizarre justifications for the feds to do just about anything they want and fret only when the federal government’s will isn’t being imposed on our lives fast enough.
The Volokh Conspiracy did, to their credit, run a counter-opinion that wasn’t conjured up by a federal supremacist. Blogger Ilya Somin responded to Zywicki’s blog post.
“In my view, the President’s duty to uphold the Constitution supersedes any obligation he might have to defend a federal statute. Therefore, if he sincerely believes that a federal law is unconstitutional, he should choose not to defend it.”
Somin understands the importance of the government adhering to the Constitution. There are a ridiculous number of federal laws on the books, and you don’t have to be a legal scholar to figure out that many of them are unconstitutional. We need more federal laws being disobeyed. Compliance is the enemy of freedom. Blind adherence to federal law that is clearly being used to harm our rights, rather than to protect them, is misguided and foolhardy.