So Do Out Of Work Pharisees Get Unemployment Checks?

I am guilty of this as much as anyone, so when I generalize to say “people”, “we” or “they” don’t do something or the other, just know that I include myself in that number.

I have pressed with some degree of vigor and repeatedly asked my esteemed detractors and dissenters to my opinions to define for me what is to be done. So far “obey the Constitution”, “the Supreme Court is seditious”, condemnation of what is “legal” (as if the mere codification of a law is wrong), “have faith in God’s laws”, and getting lectured on the text and spirit of the Constitution are the most popular but being accused of using the tactics of Alinsky, a supporter of King Obama, being a closet “progressive” or being a Pharisee are running a close second.

But I never do anything without a reason. I never debate without a resolution or endpoint in mind…and I think with this post, we reached a point where it is time for me to put up or shut up.

Mark Twain said that a patriot is “…the person who can holler the loudest without knowing what he is hollering about.”

And boy howdy, have we have had a lot of that here over the past week. It is time to bring that to an end by proposing a direction before someone pops an aneurism.

To begin, I would point out a couple of things that Jefferson said:

Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy.

And:

The government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion and not the Constitution the measure of its powers; but… as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

Nullification? Well not quite.

Jefferson, ever the philosopher, always got the intent right but it was left up to Madison to figure out how to make it work.

What I propose is a revival of the Doctrine of Interposition, a doctrine that has been used successfully at the state level to “true up” the national laws to the Constitution. There is a good definition of this doctrine posted at the Heritage Foundation site, written by Christian G. Fritz, Ph.D. Dr. Fritz is a legal historian and a law professor at the University of New Mexico School of Law. I read Dr. Fritz’s 2008 book on the Civil War and his paper last year and it has been kicking around in my head for the past several months. The abstract of his paper defines the issue succinctly:

The seemingly unstoppable growth of the federal government has led to a revival, in some circles, of the discredited notion of nullification as a legitimate constitutional mechanism for states to reassert their sovereign powers. Proponents of this doctrine invoke the authority of James Madison to defend the claim that the Constitution empowers states to nullify laws passed by Congress. In this essay, Christian Fritz explains why Madison emphatically rejected the attempt by a single state to nullify national laws. Instead, Madison embraced something very different. The practice of interposition—public opinion, protests, petitions, and legitimate actions of state legislatures—focused attention on whether the government was acting in conformity with the Constitution. Recovering Madison’s understanding of interposition offers a useful corrective to the mischaracterization of his views and makes clear that he rejected any constitutional basis for nullification.

Dr. Fritz notes something that has become tradition today, was not always so:

Because American constitutions expressed the voice of the people as the sovereign, the people could also weigh in directly on whether government acted consistently with their directions. Some Americans asserted that the Supreme Court was the sole authority to determine questions of constitutionality, but for 18th and 19th century Americans, such a monopoly was hardly obvious or inevitable. Before the Civil War, many Americans believed that individual citizens, state legislatures, and ultimately the people themselves—not just the federal judiciary—played a significant role in ensuring the Constitution’s proper functioning. Interposition was a tool for scrutinizing the national government to ensure that it acted as desired by the sovereign people.

Monitoring the constitutional operation of government was an active responsibility of all citizens and not just their elected officials. As the sovereign, the people who created the Constitution also served as its final arbiter. Properly understood, interposition was inherent in American constitutionalism because, as Madison put it, the sovereign could always—in the end—act outside of the “purview and forms” of the Constitution. For Madison, despite acting outside of such procedures, the collective sovereign of the majority of the people of the states exercised constitutional authority. This was distinctly different, as Madison argued, from an individual state deciding on its own to nullify a national law—constituting a revolutionary act.

Traditions can be changed to make new traditions. This is the point that I have been laboring to make for the past week but at the end of the day, while review can be universal, there can only be one authority with respect to interpretation of law. There must be an arbiter that exists to protect consistency – for what is the worth of a law that means one thing today and another tomorrow? Isn’t that one of our issues?

Madison acknowledges that the appropriate role for the Supreme Court is that of “surest expositor“, meaning that it can act more quickly than the citizenry to correct an unconstitutional law – but even with that, the state legislatures and the people are not relieved of their role to act in concert as the ultimate authority.

Fritz concludes:

Madison distinguished carefully between interposition—groups of citizens or state legislatures identifying unconstitutional laws—and any effort by individual states to nullify such laws. A single state lacked constitutional authority to nullify national laws or secede from the Union, Madison maintained. He considered the people of the states the ultimate judge of the constitutionality of acts of the government. A majority of the collective sovereign held the ultimate constitutional authority to render national laws void or give constitutional text final meaning.

Because American constitutions expressed the voice of the people as the sovereign, the people could also weigh in directly on whether government acted consistently with their directions. Some Americans asserted that the Supreme Court was the sole authority to determine questions of constitutionality, but for 18th and 19th century Americans, such a monopoly was hardly obvious or inevitable. Before the Civil War, many Americans believed that individual citizens, state legislatures, and ultimately the people themselves—not just the federal judiciary—played a significant role in ensuring the Constitution’s proper functioning. Interposition was a tool for scrutinizing the national government to ensure that it acted as desired by the sovereign people.

Interposition supplemented other devices built into the Constitution itself to ensure the government’s responsiveness to the sovereign—such as periodic elections. Like elections, interposition could reflect the will of the people. Unlike elections, it served to clarify issues that could not be clarified simply by voting for one candidate or another. Interposition could bring voters’ attention to matters that might help focus the exercise of the suffrage. The constitutional guarantee of voting did not preclude the use of more informal means such as interposition.

While interposition could be used to express a view on the constitutionality of a law, it did not preclude the role of the Supreme Court as interpreter of the Constitution. The judicial branch continued to play an important role in monitoring the operation of the national government. As a supplement to more formal and informal institutions of government, interposition was a sporadic tool available to the people when circumstances warranted the exercise of that authority. This informality gave it no lesser role than was played by other informal devices such as political parties in a conception of constitutionalism shared by Madison and many other Americans before the Civil War.

Whether Madison’s concept of interposition remains a viable and appropriate mechanism today is a question that the present generation of Americans must decide. At the very least, however, Madison would have approved of a vigilant citizenry participating in monitoring the federal constitutional order.

So other than bitch about it and call each other names to the point of risking friendships, what have we done? We spout off and carry on as if quoting the Constitution to each other changes a damn thing…it doesn’t – it makes us look arrogant and foolish.

Simply stated, the states have to stop acting as if they are the federal government’s subordinate slaves. Our state legislatures are where the powerbase of conservative Republicanism rests. Thanks to the elections in 2010 and 2012, the Republicans control one or both houses in 29 of 50 states and 30 of 50 governorships.

We can act through our local state representatives and make that heard at a national level. The individual citizen has little ability to realistically impact a Senator or Congressman once they are sequestered in Washington but it is likely that you only live a few miles away from your state representative or state Senator. This is where pressure can be applied and where public expositions of choice can be heard. Most of us could call or personally see our state lawmakers every week, some every day.

We don’t do this. Why? Is it because we have been told we are powerless for so long that we believe it? The carrot of a “third party” gets dangled periodically but this is nothing more that a passifier to sooth the aching gums of the disaffected. Going from nothing to a national party is simply not practical – maybe theoretically possible – but if the Tea Party can’t pull it together, what is the alternative?

Why do we sit back and whine that Muslims get what they want through protest because our society fears them and we fail to learn from that?

The states are not going to be given back their rightful power; they are going to have to take it back. I am not advocating terrorism in a violent sense but I am sure advocating it in a political sense. Nothing scares a politician more than the threat of having work as a greeter at Wal-Mart or drafting deeds and wills for a living. We need to represent a credible electoral threat.

This is where is has to start and I think the Doctrine of Interposition is the tool for the job.

6 thoughts on “So Do Out Of Work Pharisees Get Unemployment Checks?

  1. I’ve never heard of it. I wonder, though, what happens when the SCOTUS says: nope, federal law trumps state law (I’m thinking of that decision about Arizona voting that B. was talking about…)

    • In that case, you do the same thing – but in this case, SCOTUS was following the Constitution – the states cannot pass a law to regulate a national election. That is the role reserved for Congress.

        • I assume that it is because that does not supersede federal law. What SCOTUS said was that a state cannot change an eligibility requirement that is already established at the federal level. Since there is no federal restriction regarding felons, the states are free to do what they wish. I guess – I don’t really know…

      • The intent of the Founders was that the States decide who is eligible to vote in that state.

        Scotus was referencing a 1970’s law NOT original intent ………. not that that matters anymore.

  2. I may be wrong as to my “interpretation” but in the Modern Political Context I would say indeed modern Pharisees would go to the head of the Line for Unemployment Checks……

    Another benefit would be they won’t get an IRS audit …. heck , if it’s “a system” it has to work for someone Right ??

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