What is the Matter With Them?

Some conservative state legislators around the nation are hurling themselves against the Constitution. In addition to a movement to circumvent the 14th Amendment and deny automatic citizenship to those born in the U.S., a move is now afoot to allow states to nullify federal laws they find burdensome or odious. The movement is aimed primarily at the recently passed health care law. Idaho, Texas, Alabama, Kansas, Missouri, Nebraska, and several other states are exploring the right of nullification. Nullification is an 18th century doctrine that asserts that states have the authority to determine for themselves what the Constitution permits and what their obligations are under it.

The Constitution is in many parts vague and undetermined. Over two hundred years after it was written and adopted, struggles persist as to what it precisely allows and forbids the government to do. Nevertheless, many issues have been settled. One such issue is federal supremacy. The Civil War was fought over the issue. The side that argued for state supremacy lost. Against the resounding victory of the North and well over a century of Supreme Court rulings, some states are asserting the dusty and obscure concept of nullification. While states have an important role in what is put in the Constitution, once an amendment has been adopted or a federal law has been established, the states are bound to observe it. Hundreds of thousands died and cities were burned to the ground to make that point.

History has never been a strong point in American political life. Almost every generation has felt itself unique and unbound by the past. For the last century political and social movements have battered the Constitution. Frustrated by the halting pace and inertia of society, one group after another has assailed the laws, customs, and traditions of the land in their zeal. Sometimes this has been for the good. Universal suffrage and overturning segregation are two issues that redound to the nation's, and the Court's, credit. Sometimes time it has been for the worse. The 18th Amendment banning the manufacture, transportation and sale of alcohol and Supreme Court rulings upholding segregation are examples that speak poorly of American political sensibilities.

Progressives have historically been the ones who, in their political impatience, pushed for new and elaborate interpretations of the Constitution. To their discredit, some conservatives are beginning to take their political dissatisfaction out on the Constitution. Two issues stand out in recent events. Both are flimsy at best. The move to deny citizenship to some born in the U.S. is in clear violation of text, history and precedent. The growing movement to assert states' right to nullify laws they find unconstitutional is equally against history, tradition, and text.

People can, and do argue over what the Constitution says. They always will. However not everything written in the Constitution is ambiguous. At least conservatives have frequently made that argument. Yet some have taken to parsing words, ignoring clear text and turning over rocks looking for obscure and antiquated interpretations and precedents. That they are doing so is a discredit to themselves and a disservice to the nation. Conservatives claim to be the champions of tradition and law, yet some of them are beating the bushes for legal loopholes and engaging in constitutional spelunking. What is the matter with them?