Publius-Huldah has written another masterpiece “Judicial Abuse of the Fourteenth Amendment: Abortion, Sexual Orientation & Gay Marriage“. I decided late last night that this would be the subject I would write about today. Then I read one more article at American Thinker that changed my mind and I was up most of the night writing on a different subject. But I’m still way short of finishing it. So back to my original plan.
As usual, Ms. Huldah uses her expert knowledge of the Constitution and of the Federalist Papers to defend her position; this time against activist judges that want to read things into the constitution that are not there. It is a long post, which is normal for Publius-Hukdah because what she writes is for all practical purposes a legal brief. The only difference is she writes in language that we can understand. I highly recommend that you take the time to read her beautiful arguments. But apart from her article, what I want to share with you is the comment I left her in the form of a question and her reply to my question.
First my comment:
So what recourse do we have against these activist judges? Is this where Tom Wood’s nullification applies?
And here is her reply:
Nullification of unconstitutional federal court decisions is proper & appropriate:
1. Remember, Alexander Hamilton points out in Federalist No. 78 (6th para):
The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. [emphasis mine]
So yes! The executive’s refusal to enforce unconstitutional judgments of courts is the “check” which the EXECUTIVE branch has on the judicial branch. [The LEGISLATIVE branch’s “check” is impeachment.] Officials of the State Executive Branch can nullify unconstitutional federal court opinions by refusing to support them just as the President can. And if the President sends in U.S. marshals to enforce unconstitutional federal court opinions, then the State Governor needs to call in the State militia. Or the Sheriff of the County may call in his forces to prohibit enforcement of unconstitutional federal court opinions. States must either defend themselves and their Citizens from federal encroachments, or submit to the tyranny which is right now being imposed on us.
2. The STATES have not only the inherent Right, but the Duty, to nullify unconstitutional acts of any branch of the federal government, including the judicial branch. Remember, State officials take Oaths to support the Constitution (Art. VI, 3rd cl.) – their Oaths are not to obey whatever the federal courts say.
Read her reply again and let it sink-in. Nullification is not only a right but an obligation on the Executives at the both the Federal and State level. Nullification is the check against unconstitutional decisions of the courts. Nullification is not just conservative rhetoric. How many of our elected officials are aware of this right and obligation? Very few would be my guess. This is a tool that must be put to use.