By Judge Andrew P. Napolitano
Last week, this column addressed state nullification and secession under the U.S. Constitution. It argued, in effect, that when the government fails to protect fundamental liberties or actively assaults them — as it has done in the past 18 months under the guise of public health — the states and individuals can peacefully ignore the government and, if necessary, leave it.
The concept of states leaving the federal government has been dead and buried since the outcome of the War Between the States. Yet four years after the war, the Supreme Court recognized secession in an old Texas case and held that three-quarters of the states would need to consent for any one of them to leave.
Nullification posits that any state individually — through its legislature or highest court — can determine that an action of the federal government is unconstitutional under the U.S. Constitution and therefore it is nullified and may legally be ignored in that state.
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Both ideas were embraced by many who ratified the Constitution and the Bill of Rights, and they were defended forcefully by Thomas Jefferson and James Madison.
Last week, the Supreme Court revived the concept of nullification.
Here is the backstory.
Since January 1973, when the Supreme Court issued its opinion in Roe v. Wade, abortion has been lawful everywhere in the United States up to the time of fetal viability, after about 24 weeks of gestation. This principle has been challenged many times in many courts, and it has always been upheld.
The Supreme Court has faithfully upheld Roe every time it has come before the court. Sadly, Roe also permits the states to permit abortion up to the moment before birth, as some states do.
Texas, the state where Roe began, recently enacted legislation that directly contradicts Roe’s central holding. The Texas statute prohibits abortions upon the detection of a fetal heartbeat, after about six weeks of gestation. That legislation was challenged by abortion providers in a federal court.
When a federal appellate court declined to enjoin the enforcement of the Texas statute, its challengers filed an emergency appeal with the Supreme Court. Last Wednesday at midnight, a bitterly divided Supreme Court released a 5-to-4 opinion in which the majority declined to interfere with the Texas law.
An emergency appeal is rarely granted. It basically argues that the behavior it seeks to enjoin is so blatantly unlawful, unconstitutional and harmful — and the evidence in support of the appeal is so overwhelming — that the Supreme Court ought not await a trial below before putting the brakes on it.
I am staunchly pro-life. My understanding of American law, animated by my understanding of the natural law, informs that the baby in the womb is a person — with human parents and possessing all the genomic material within herself to develop fully as a post-natal child — and thus enjoys the constitutional protections that prohibit the states from impairing life without a jury trial and proof of fault, and which require the states to protect all persons equally.
Nevertheless, and notwithstanding the above, abortion — and all its 62 million killings in America since January 1973 — and the Roe principles are and have been the law of the land. Thus, the Texas statute — for all its pro-life merits — is profoundly unconstitutional.
Unless the principle of nullification now abides.
The Texas law, notwithstanding its procedural oddities — it is to be enforced by private civil litigants, and not by the state — is only lawful if Texas can lawfully nullify Roe. The Supreme Court knows this and permitted it to take place last week.
I recognize that there are differing interpretations of the court’s cryptic decision. And I also know that the court in the modern era is not in the business of permitting nullification — unless we are about to experience a sea change in American constitutional jurisprudence.
Many of my pro-life friends have opined that the five-member majority of the court has signaled its willingness to reverse or at least temper the extent of Roe. If so, it should be done after full briefings and oral argument.
Nullification presumes that Roe itself is unconstitutional and that Texas has the sovereign power to declare it as such. Nullification as a constitutional instrument has not been applied seriously since before the War Between the States when several states sought to nullify federal taxes.
But nullification is not the result of mere political differences. Rather, it protects the states and their residents from unconstitutional federal incursions when the federal courts have failed to do so.
The Texas nullification is about innocent human life and the right of prenatal persons to be born and the obligation of the states to protect those lives. It is about the rights of individuals and the power of the states to thwart profoundly unconstitutional behavior of the feds. This behavior can come not only from Congress but from the federal courts as well. Congress has never enacted legislation permitting abortion. Abortion is only the law of the land because of the judicially created Roe decision.
The Supreme Court’s midnight decision not to enjoin the Texas statute is preliminary. The challengers will have their day in court, and whatever the outcome, it will end up before the Supreme Court again. In the meantime, expect other states to enact similar legislation, not only with respect to abortion but also with respect to any of the many federal assaults on personal freedom and state sovereignty.
The Texas legislature may have unwittingly ignited a brushfire of freedom with its abortion legislation. It peacefully says to the feds: “You, too, are subject to the Constitution.” If nullification spreads, it is the most effective peaceful tool for returning the federal government to the confines of the Constitution — a place it won’t recognize. The alternative is more dictates from Washington, the Constitution be damned.
COPYRIGHT 2021 ANDREW P. NAPOLITANO
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