Controversy Surrounding the Attorney General’s Opinion on State Sovereignty

Mar 14, 2024 by David Fowler

Controversy Surrounding the Attorney General’s Opinion on State Sovereignty
A good friend asked for my opinion on a statement released by another organization critical of a formal opinion issued by the Tennessee Attorney General’s office on the constitutionality of Senate Bill 2775/House Bill 2795, the “Restoring State Sovereignty Through Nullification Act.” The opinion and the bill provide helpful insight into two major problems we are facing as a nation. Read on to see if you are part of the problem or the solution.

The context for and description of the bill.

The sentiment of the bill’s sponsors, both of whom are friends and among the best the legislature has to offer, is understandable. The jurisdiction of the federal government, in all its branches, increasingly encroaches on the jurisdiction of the states. I am frustrated, too.

The attorney general’s opinion accurately summarizes the bill:
[It] specifies various ways in which a state action of nullification may be initiated by the governor, the legislature, any Tennessee state court, a combination of counties and municipalities, or a group of registered Tennessee voters. Id. § 9. And once a federal action is nullified by state action under a process provided in Senate Bill 1092, the federal action is rendered “ultra vires, [and] will not be recognized as valid within the bounds of this state.”

Where I agree with the Attorney General’s opinion.

The opinion contains many statements with which I am in hearty agreement, and I agree that the Supremacy Clause of the U.S. Constitution does not allow a state to enact a law to nullify a federal law. Logically speaking, that renders the Supremacy Clause meaningless.

But that does not mean I think a state is powerless to resist federal actions that it believes violate the U.S. Constitution, but, to me, thinking a bill is necessary to do that evidences how little we know about how to use to our state’s advantage the separation of powers and our system of dual sovereigns.

At this link is a description of five ways that the U.S. Constitution countenances state “nullification” of usurpations by the federal government of matters left to the jurisdiction of the states. I’ve even written a book that expounds on the key tool left to the states for recovering civil liberty, Recovering the Constitution—Using the Ninth Amendment to Restore Civil Liberty.

Where I disagree with the Attorney General’s Opinion

For reasons not apparent to me, the opinion went beyond asking if a state statute nullifying a federal law was constitutional to ascribing to the U.S. Supreme Court a legislative power. Citing the Court’s roundly criticized opinion in Cooper v. Aaron (1958), the attorney general opined:

[T]he Supreme Court’s interpretation of the Fourteenth Amendment in Brown is the supreme law of the land, and the Supremacy Clause makes that interpretation binding on the States, “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

This ascription of power and jurisdictional authority to a judicial essay that may at best garner a plurality of the justices on the Supreme Court as justification for its judgment almost took my breath away as a denial of the separation of powers.

A few comments from Jeff Shafer on this point will be sufficient to demonstrate its folly:
Judicial supremacy over all departments of government is itself an unconstitutional concept.

The founding era emphasis in describing the three branches of government is on their independent interpretive authority in the respective areas of authorized operation. Each department, legislative, judicial, executive, is both required and empowered to follow the Constitution as they understand it. Indeed, they're oath-bound to do so.

The oath of office under the Constitution found in Article VI is not an oath to support Supreme Court decisions, which may, for all intents and purposes, be whimsical fancies, but is an oath to the Constitution itself. Indeed, we could wonder, how could one even swear an oath to support something like Supreme Court decisions? How could you do such a thing intelligently and in good faith when you don't even know what may lie ahead and may come from that court?

The last point is irrefutable since there may be as many opinions and rationales for a judgment as there are justices. In that case, which justice’s opinion “is” now the “supreme law?”

The democratic problem in the bill; where does it stop?

Surely owing to frustration with the federal government and a largely unknowledgeable and cowardly legislature, the bill authorizes “any combination of ten (10) counties and municipalities” or “2,000 registered voters” to petition the legislature to force a bill of nullification to the House and Senate floor for a vote.

However, once we concede to this democratic, leveling spirit that is contrary to our fundamental governing principle of representation, what other issues should be allowed to circumvent that fundamental principle? Maybe education issues? Prison issues? Budget issues?

What is the objective principle by which all other issues, important to other factions, should be evaluated as proper objects of petitions and direct legislation?

And what is the objective principle by which the number of local governments is forever set at 10 or the number of voters forever set at 2,000? Where can any principled line be drawn?

And what happens when liberals want to “nullify” an executive order or federal statute that doesn’t allow parents to “trans” their kids, arguing that it violates “states’ rights”? Are the “conservatives” who support this democratization of everything great with that petition too?

California likes this petition idea so perhaps these folks can move there, but please don’t California Tennessee simply because we keep electing people who won’t do what they can already do!

My most fundamental problem is a big one.

A leading organization in support this provision must believe in leveling all authorities by complete democratization so that the voice of the people is the voice of God.

I know its leadership will disagree with my assessment, but it can’t repeatedly quote, as it did in its commentary objecting to the attorney general’s opinion, “all power is inherent in the people.” This idea was the predicate of the revolutionary democrats of France!

But worse yet, this quotation is a blasphemous denial that all authority is inherent in God (Romans 13:1, “[T]here is no power but of God: the powers that be are ordained of God.”).

The assertion that all power is inherent in people is, in one fell swoop, a denial of God’s transcendence and the doctrine of creation ex nihilo upon which God’s power and authority are predicated.

The poison of the French Revolution being embraced in our nation brings to mind Proverbs 4:14-15:
Do not enter the path of the wicked and do not proceed in the way of evil men.
Avoid it, do not pass by it; turn away from it and pass on.

Bottom line on “nullification”

Though I think it unconstitutionally wrong for the attorney general to concede that the U.S. Supreme Court’s power of rendering judgment can be converted into the making of laws of general applicability, at least his office is doing a great job of defending our state’s jurisdictional authority against Congress, the President, and Black Rock.

But if state officials don’t know of or won’t exercise the power they already have to “nullify” a federal action, enacting a statute won’t help.

And finally, while I understand the frustration of many with those kinds of officials, the solution is not to deny the representative principle from our nation’s founding and substitute the principle of democratization, which says there is nothing true except that which accords with the voice of the people.

God is not democratic, and His cosmos wasn’t created to be run on democratic principles; however, He does recognize representation as evidenced by Adam and Christ as representative heads of two different humanities.

God have mercy if we continue rejecting the way God has ordered His cosmos to work.

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