In a recent article, Gabriel Malor rakes Mike Huckabee over the coals. Huckabee’s sin? In an interview on Hugh Hewitt’s radio show, Huckabee rejected judicial supremacy. Huckabee says the courts can neither make nor enforce law. The context of his comments concern the ruling of federal courts on the matter of same-sex marriage and on the rights of states to resist what he considers judicial overreach.
I haven’t read Huckabee’s book, and I don’t plan to. Nor did I hear his interview. My concern here is not with Huckabee but only with Malor’s strange view of the Constitution. What I found striking was Malor’s facile dismissal of the notion that states might ever resist or fail to comply with the decisions of federal courts. He calls Huckabee’s insistence that they can “gobbledygook.” As Malor sees it, any failure of states to comply with federal law is analogous to the resistance of state governments to desegregation. I would like to set the issue of marriage to the side and focus on Malor’s understanding of the Constitution, which I find deeply misguided at best. […]
Two points must be noted here. First, the point of a written constitution is both to empower and to limit government. The point of the Constitution of 1789 is to empower and also to limit the national government—both as a whole and every part therein. Consequently, the Constitution aims at limiting not only legislative and executive power but judicial power as well. To hold that the Constitution does not function as an effective limit on judicial power (save for in the rare instance of Constitutional amendment) is, more or less, to hold that we don’t have a Constitution at all. Malor’s understanding of judicial power under the Constitution is the overthrow of constitutionalism.
Second, in their reasoning in the Virginia and Kentucky Resolutions (and in Madison’s Report to the Virginia Assembly), Madison and Jefferson merely applied the logic justifying judicial review (especially in Federalist 78) to the instance of federal overreach or usurpation (including overreach or usurpation by the federal judiciary) vis-à-vis the states. Constitutionalism—and, in particular, the idea of a government that has only those powers delegated by the Constitution—entails that any governmental actions that go beyond powers granted or delegated are null and void and not authoritative. According to Hamilton, the idea of judicial review presupposes not that the Court is superior to the legislature but that the Constitution is superior to both. The very logic (necessarily) entails the possibility of unconstitutional Supreme Court decisions—decisions that either go beyond power given or are contrary to constitutional prohibitions. But the logic of constitutionalism and the argument of Federalist 78 entail that all such decisions are null and void.
The argument that states can rightly (that is, consonant with the Constitution) resist the unconstitutional actions of the federal government was not newly made in the Virginia and Kentucky Resolutions. It had already been defended by Publius in Federalist 46. There Madison argues that “an unwarrantable measure of the Federal Government” may well rightly (to wit, constitutionally) meet with the “refusal to cooperate with officers of the Union” or “embarrassments [of the federal law] created by [state] legislative devices.” For the most considerable of federal usurpations he even countenances the right of armed resistance. Yes, such a power can and has been abused. But Madison, like Hamilton, would remind us that the abuse of a power is not an argument against rightful use.
To all of this Malor has but one reply: the Supremacy Clause of Article VI.
Not that this really matters. We are in a Constitution-as-Calvinball era where states can can set their own marijuana laws and be ignored by the Feds, but marriage statutes and immigration enforcement contrary to the great Nanny in DC brings full Federal wrath.
Gabriel Malor is one of the reasons I began to view Ace’s page with a very jaundiced eye.
yup
Thank you, Darleen, for keeping this joint open.
It’s one of the very few places I can get a decent drink of Wisdom, straight-up.
huckabee thinks if he keeps beating the anti-gay drum all teh Rs will go hey that’s a super-important issue let’s nominate huckabee for so he can really stick it to them gays
but there’s a couple three things wrong with this thesis
The anti-gay drum has become so huge and comprehensive that one cannot exist without beating it to some degree. Even gay people beat it from time to time as it slowly fills every empty space with itself.
it might could be time to switch to the anti-gay maracas
you’re so gay, you probably think this thread is about you
Bob,
I plan on hanging out until the lights go out and the liquor cabinet is empty.
I would urge anyone else with posting privileges to join the party and dance with me.
Unfortunately for Mr. DeHart (and us) “The argument that states can rightly (that is, consonant with the Constitution) resist the unconstitutional actions of the federal government” was shot at Fort Sumter in 1861 and buried at Appomattox Courthouse in 1865.
Once the Federal government was viewed as having the right to compel the states by force of arms to obey its’ commands under any and all circumstances, only force of arms is going to undo it. We’re seeing that right now where the Executive can essentially do whatever it likes because it has fully realized that only another Civil War can rein it in — and most people simply don’t feel things are bad enough to justify that yet.
I hope they do, Darleen.
[You heard her! No git-er-done.]
‘Now’
See here and here.
And another.
You have to pass the plan to see what’s in it.
This is what got me about the 9th circuit getting upheld. So, you can’t have a a state constitution amendment forbidding marriage. Fine but, you still have to pass laws to allow it.
Ditto, Shermlaw: Malor’s continued presence as a co-blogger at Ace’s sends the unmistakeable signal that being a principled conservative isn’t necessary to blog there. It suggests that provoking the disdain of conservative readers is a feature, not a bug, as it may drive blog hits and comments, at least in the short term.
I’ve also reached a position similar to WFB on atheism. He wrote that conservative must not necessarily believe in God, but he cannot hold believers in contempt; I’ve come to the conclusion that anyone who actively argues for the radical redefinition of marriage is probably not a conservative in any meaningful sense.
…and, Darleen, THANK YOU for keeping the light burning. :-)
I figure Malor’s primary purpose is to make Ace look like a super-staunch rock-ribbed paleocon by comparison.
Instead of a squishy NYC rah-rah Republican.
Instead of a squishy NYC rah-rah Republican.
ELECTABILITY!!!
I am done with being Charlie Brown to the squish Lucys every 2 years.
“…a squishy NYC rah-rah Republican.”
He does the best he can, for a New Yorker. Remember he comes from a troubled environment