In response to my recent post, Thomas Jefferson vs the Enforce the Law Act of 2014, pointing out Jefferson’s view that the executive branch has a duty to refuse to enforce acts that it considers unconstitutional, a number of conservatives were quite upset.
They have, unfortunately, been taught that without blind obedience and enforcement of the law, the nation will fall into chaos. Standing opposed to that false view, Jefferson and virtually every other founder felt that adherence to the Law is adherence to the Constitution, not a blind adherence to whatever a Congress passes and a president signs.
When in conflict, the constitution prevails over law.
All the founders held that a law passed by congress outside the scope of their constitutionally-delegated powers is no law at all. All of them.
In response to learning, probably for the first time, that a leading founding father (Thomas Jefferson, that is) disagreed with them on blanket executive enforcement of all congressional acts, I was told some of the following:
1. This is my view (they didn’t want to accept that I was simply reporting Thomas Jefferson’s view)
2. Jefferson wasn’t at the constitutional convention, so his view doesn’t hold water.
3. Jefferson was wrong. He didn’t know what he was talking about, the president has no power to make a decision on constitutionality. Ever. That’s the role of the courts, and only the courts.
On the second, I note that anyone – including myself – having this discussion today wasn’t at the constitutional convention. So our opinion on the role and duty of the executive branch in comparison to Thomas Jefferson’s is like an ant to a giant. All of us, myself included.
As far as the courts and the determination of constitutionality, this is wildly inaccurate. The nature of the Oath of office is that each person – individually – is to act in support of the constitution to the best of their own ability and understanding. They’re not supposed to blindly follow whatever they’re told until the Supreme Court tells them otherwise. Doing so would leave this country in the state of being a dictatorship of unelected lawyers on the supreme court.
Regardless, Jefferson was far from alone in his view that each person, and each branch has a duty to act according to their own understanding of the constitution.
Here’s James Madison on the subject from a letter he wrote in Dec. 1834:
As the Legislative, Executive & Judicial Departments of the U. S. are co-ordinate, and each equally bound to support the Constitution, it follows that each must in the exercise of its functions, be guided by the text of the Constitution according to its own interpretation of it; and consequently, that in the event of irreconcileable interpretations, the prevalence of the one or the other Departmt. must depend on the nature of the case, as receiving its final decision from the one or the other, and passing from that decision into effect, without involving the functions of any other.
Anyone who tells you that only the courts are allowed to consider the constitutionality of an act or law is either ignorant, or lying. For those who just disagree in principle, I suggest they take it up with the “Father of the Constitution” rather than me.