When Smart People Say Foolish Things, Constitutional Edition

     Sometimes, as I’ve written before, smart people say foolish things. I’ve done it. So have you, Gentle Reader, so don’t put on any airs. It can be painful or merely funny, according to the context and what’s said. Sometimes, it’s not just the speaker who winces.

     Take this, from an American Thinker essay:

     Nullification — the doctrine whereby states or localities can disregard a federal law the state deems unconstitutional — was discredited long ago, most notably during the Civil War and the desegregation era. A related concept, interposition, involves a state asserting that a federal law is unconstitutional and stepping in to “interpose” itself between the federal government and its citizens. These doctrines were historically invoked to resist federal authority, often to disastrous effect.

     The person who wrote the above, Charlton Allen, is “an attorney and former chief executive officer and chief judicial officer of the North Carolina Industrial Commission.” Therefore we must assume that he’s got something other than a hard vacuum between his ears. But the statement is both absolutely wrong and utterly irrelevant to the point of his essay: the Hawaii Supreme Court’s denial of Second Amendment rights to residents of Hawaii. Moreover, it suggests that this apparently intelligent and erudite man doesn’t understand the nature of the Constitution and why it deserves respect.

     The Constitution of the United States is a contract among the states. It was explicitly so from the very beginning, as evidenced by the ratification clause:

     Article VII: The Ratification of the conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

     There is no other way to read those words.

     It seems absurd to have to say this, but nevertheless: the Civil War, which forced the Southern states back into Union with the North, was not a legal argument. It didn’t “discredit” anything. It was an exercise in pure power: a stronger party’s imposition of terms upon a weaker one. In effect, the War dismissed the contractual nature of the Union. It said to the seceding states that “You’re going to be part of the Union whether you like it or not.”

     Nullification and Interposition are essential tools for enforcing the Constitutional contract. Should one party insist on a change to the terms of the contract, that does not legally or morally impose an obligation upon the others to agree to it. To dismiss nullification and interposition on the grounds that the Civil War was won by the Unionist states is to say that the contract simply doesn’t matter – i.e., that “might makes right” and the weaker party simply has to accept what’s dictated to it by the stronger one.

     A great part of the reason Constitution-era Americans opposed the idea of a standing army was to preserve the states’ ability to resist arbitrary federal impositions upon them. Mr. Allen seems unaware of that. Yet it was so.

     The irony here is that the issue of concern to the author is an explicit element of the Constitutional contract, rather than an arbitrary change to it or a dismissal of one of its terms. Had the federal government passed a law asserting that the Second Amendment doesn’t apply to Hawaiians, that would have been a violation of the contract; the Hawaiian government would be right to oppose it. But the facts are the other way around. By applying for statehood, Hawaii agreed to abide by the Constitution as it stands; it could not claim afterward that it agreed “except for that inconvenient ‘right to keep and bear arms’ stuff.”

     I have no idea what would follow were Hawaii to announce that it is seceding from the Union. In the fantasy case of a successful secession, Hawaii would no longer be bound by the Constitution’s prescriptions and proscriptions. In the real world as it stands today, Hawaii has agreed to the Constitutional contract; therefore, the Second Amendment is binding on Hawaii. Nullification and Interposition are irrelevant to the matter. Charlton Allen should not have mentioned them at all. I cannot imagine why he did so.