Sowing the seeds of anarchy (2/19/2011)

In their passion to declare their opposition to the newly enacted federal health care bill — the Affordable Health Care Act — the 49 members of the Idaho House of Representatives who voted for and effectively forced passage of HB 117 momentarily lost their constitutional compass, despite their sworn commitments to defend the Constitution.

In their passage of a measure that would “nullify”– that is, declare the federal law null and void in Idaho — the legislators aligned themselves with a discredited historical theory committed to the nullification of fundamental constitutional principles.

The legislators’ assumption of extra-constitutional authority, which is at war with every foundation stone of American constitutionalism, is not saved by their policy rationales or the degree of their outrage for, as the Supreme Court observed in a landmark precedent in 1819, McCulloch v. Maryland: “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.”

If the perceived justice of one’s cause becomes the measure of its legality, then the American legal system ceases to be a system of obligatory rules. Rather, it invites anarchy; every individual would assume license to determine what the law is. That is why George Washington, in 1798, rightly characterized nullification as “preposterous and anarchic,” a doctrine that would lead to the “dissolution of the union.” Despite Washington’s warning, however, this group of legislators embraced a doctrine that is revolutionary in nature.

In its revised form, HB 117 dropped references to “nullification,” probably in response to the universal condemnation of such language. But you cannot change the contents of a book by changing its cover. This bill, in no uncertain terms, retained the discredited and indefensible Doctrine of Nullification — the seed corn of the secessionist movement that ignited the Civil War.

The floor debate was unenlightening. Several legislators mistakenly invoked the Declaration of Independence as the law of the land. Of course, it has no such status. Some grounded their votes in the belief that the federal government had grown too large and that the health-care bill was bad public policy. Both claims might be right, but they don’t speak to the constitutionality of the federal law.

The legislators’ most common error was found in confusing the wisdom of the policy with its constitutionality. This sacrifices the Constitution on the altar of policy preferences, which opens a Pandora’s Box: Anyone — on the right or the left — is free to frame policy differences in constitutional garb. This method of complaint reduces the Constitution to mere window dressing. When every measure is, in someone’s estimation, unconstitutional, nothing is constitutional. In that event, legality is in the eye of the beholder.

Consider the implications of such a doctrine.