By Bryan Fischer
Follow me on Twitter: @BryanJFischer,
on Facebook at “Focal Point”
(It should go without saying that in this column I am speaking
just for myself and not for my organization. I am here seeking to contribute
what I believe are important constitutional ideas to the debate over marriage.
Let the discussion begin!)
“Nullification” is the legal theory that the States, as the
creators of the Constitution and indeed the federal government itself, have the
right to nullify any unconstitutional law passed by the federal government.
This theory was first advanced by Thomas Jefferson, the author
of the Declaration of Independence, and James Madison, the father of the
Constitution. They may be presumed to know what they were talking about.
In the suggestions I make in this column, I am simply standing
on their shoulders. This theory is not my invention, nor is it a novel idea.
It’s been around since 1798. If anyone has a problem with it, his problem is
with Jefferson and Madison, not with me. Of course, it’s true that courts have
rejected this theory. That is utterly unsurprising, as for courts to agree with
this theory would be to accept a lesser role for themselves in American
jurisprudence than the exalted one to which they feel entitled. The issue is
not what courts have done, but whether what they have done is right.
The concept of nullification is gaining currency once again as
one state after another reaches its saturation point of absorbing the
heavy-handed and unwarranted dictates of the central government.
According to the Associated Press, “about four-fifths of the
States have enacted local laws that directly reject or ignore federal laws on
marijuana use, gun control, health insurance requirement and identification
standards for driver’s licenses.”
Jefferson and Madison reminded Americans that the federal
government is the creation of the States, not the other way round. Under the
form of government given to us by the Founders and ratified by the first
generation of United States Americans, the States are the master, the federal
government the servant.
The States delegated to the central government certain powers
of action, detailed in Article I, Section 8, and reserved every other power of
action to themselves and to the people in the 9th and 10th Amendments.
Now conspicuous by its absence in the Constitution is any
mention of marriage. Nowhere in the Constitution, in Article I, Section 8 or
anywhere else, did the Framers grant any authority to the federal government -
including the court system - over domestic policy in the individual States.
Marriage policy, in our form of government, is an issue that is
reserved solely to the States. No branch of the federal government -
legislative, executive or judicial - has any moral or constitutional authority
to dictate marriage policy to the States.
Some will cite the 14th Amendment, of course, but the subject
of marriage is not a part of the wording of that amendment nor was it a part of
the debate over its ratification. Simply put, the 14th Amendment says nothing
about marriage whatsoever. Those who cite it in support are simply guilty of
judicial activism. The 14th Amendment was written solely for the purpose of
granting full citizenship to newly emancipated slaves, and guaranteeing their
right to vote.
So what should our response be if the Supreme Court overreaches
this week, and imposes same-sex marriage on all 50 states?
James Madison wrote the Virginia Resolutions of 1798. When the
federal government engages in "a deliberate, palpable, and dangerous
exercise" of powers not granted by the Constitution, he said, "the
States, who are parties thereto, have the right, and are in duty bound, to
interpose, for arresting the progress of the evil, and for maintaining, within
their respective limits, the authorities, rights and liberties, appertaining to
So what should States do if the Supreme Court overreaches
again, as it its wont, and seeks to dictate marriage policy to the States? It
may be time for the States, particularly the ones who have marriage amendments
in their state constitutions, to “interpose” themselves between the tyranny of
the central government and their own citizens. Just as caring families do an
“intervention” with a loved one whose life is out of control, it may be time
for the States and for Congress to perform an intervention with the Supreme
Court. It may be time for direct action to break its addiction to its own
On this view, States with marriage amendments would continue to
recognize only marriages which are valid under their state constitutions, for
the purpose of state recognition and state benefits. On constitutional grounds
they would simply ignore the Supreme Court and its judicial overreach. If this
action is taken by the state legislatures, by the elected representatives of
the various states, that wouldn’t be rebellion. Far from it. It would represent
the best of a republican form of government in action.
Congress likewise could and should simply refuse to recognize
the legitimacy of any Supreme Court action that overturns the Defense of
Marriage Act. Deciding the definition of marriage for federal purposes is the
responsibility of Congress, not the Supreme Court, and Congress should not
surrender its constitutional authority to the Supremes. If Congress doesn’t
surrender on this matter of constitutional law, what recourse does the Supreme
Were Congress and the States to do this - stand firm and unbending
on constitutional principle - what could the Supreme Court do? Nothing. It has
no police force. It has no power to enforce its unconstitutional will on
The authority of the Supreme Court is entirely a function of
the good will of the American people, who are just at the point where they have
had it with being pushed around by black-robed tyrants. The power of the
Supreme Court is exclusively in its moral authority. If the Court oversteps its
constitutional bounds and imposes sodomy-based marriage on the States against
their will, it will have shredded what little remains of that moral authority.
And neither the States nor Congress have any moral or constitutional obligation
to surrender their rights under the Constitution.
If Congress and the States follow Jefferson and Madison and
“interpose” themselves between a hyperactive judiciary, the Supreme Court may
lose but the Constitution and the American people will win. I’ll take that
trade any day.
(Unless otherwise noted,
the opinions expressed are the author’s and do not necessarily reflect the
views of the American Association or American Family Radio.)