Article by "Publius of Mississippi"
Posted August 16, 2013I’m pretty sure Jeff Smith never seriously thought the Legislature would pass House Bill No. 490 he and a colleague from Lowndes County introduced in the Regular Session 2013.
Jeffrey C. Smith is a smart lawyer. He’s served in the House of Representatives for 20 years. He knows better. Jeff was trying to make a political point.
H.B. 490 resurrected an idea many white Southerners have fantasized about at least since John C. Calhoun and Robert Hayne tried to get their home state to “nullify” the Tariff of 1828.
To be sure, the Mississippi Balance of Powers Act is written in words a bit more temperate than the South Carolina Ordinance of Nullification of 1832. For example, H.B. 490 uses “neutralization” instead of “nullification.”
In this world where all is relative, the media and political firestorm Jeff Smith generated in the Winter of 2013 was down right civil. After all, Andy Jackson sent ships to Charleston harbor and threatened (personally!) to hang the nullifiers (from whose number he never excluded Calhoun and Hayne) for their palpable treason.
Jeff Smith’s big idea spawned guerilla actions. The Governor said he would block any federal action infringing [his reading of sacred] Second Amendment rights. Roe v. Wade had to be neutralized. Obamacare would be fought in the streets, though it would bring dollars to Mississippi on an order of magnitude much greater than what it will cost us. And so on, ad infinitum, until Sine Die mercifully arrived in early April.
The H.B. 490 experience is worth reflection, in the relative calm of the inter-session.
In Section 3, it would have made subject to “neutralization” all federal laws “which are repugnant and obtrusive to … the Mississippi Constitution of 1890, state law and the citizens of the state.” H.B. 490, lines 136-39.
In Section 4, a Joint Legislative Committee on the Neutralization of Federal Laws would have been charged to neutralize all federal laws “in direct violation of the Mississippi Constitution of 1890.” H.B. 490, lines 187-88.
Section 5(4) would have enshrined the rights of the people of Mississippi “as they were understood and secured by the law in the State of Mississippi at the time the Mississippi Constitution of 1890 was adopted on November 1, 1890.” H.B. 490, lines 237-39.
Given these references, turn to that selfsame Mississippi Constitution of 1890. A good place to start is Art. 4, § 40, the oath of office for all legislators. Each must “solemnly swear (or affirm) … that I will, or as soon as practicable hereafter, carefully read (or have read to me) the Constitution of this state, … ”! Hmmmm!?!
Art. 3, § 7 1 affirms two great principles. First, “[t]he right to withdraw from the Federal Union on account of any real or supposed grievances, shall never be assumed by this state, …”
The only point of interest here, of course, is the phrase “any real or supposed grievances.” (Emphasis added.) From history, even in 1890 the draftsmen knew the propensity of those in political power in Mississippi for conjuring less than bona fide grievances against “the Federal Union.”
Reading H.B. 490 sends me to the clause of more practical importance in Art. 3, § 7, viz., “[N]or shall any law be passed in derogation of the paramount allegiance of the citizens of this state to the government of the United States.” (Emphasis added.)
Much of the public discussion of H.B. 490 this past Winter centered on whether and to what extent it might be enforced consistent with the Supremacy Clause, U. S. Const., Art. VI, § 2. The answer, of course, is “hardly at all, if at all.” A smart lawyer like Jeff Smith knows that.
But I doubt Rep. Smith realized he had drafted his Mississippi Balance of Powers Act so that it would have been unenforceable in state courts as well, and as a matter of state law, given the second clause of Art. 3, § 7. In his regular references to the Mississippi Constitution of 1890 as the gold standard, Jeff Smith sowed the seeds of H.B. 490’s undoing.
Among the rights “understood and secured by the law [to Mississippians] … at the time the Mississippi Constitution of 1890 was adopted … ,” 2 H.B. 490, § 5(4), lines 237-39, was the right that no law could “be passed in derogation of the paramount allegiance of the citizens of this state to the government of the United States.”
The whole idea of H.B. 490 was and remains “in derogation of the paramount allegiance of the citizens of this state to the government of the United States.” (Emphasis added.) As such, it runs afoul of Art. 3, § 7, which is a sort of an inverse supremacy clause — a state constitutional imperative with force that would withstand even the repeal of the federal Supremacy Clause.
Let’s break it down.
Without doubt, the Legislature is disabled from “pass[ing]” laws proscribed by § 7’s second clause. So are local governmental entities such as boards of supervisors, city councils, boards of aldermen, school boards and the like.
You don’t have to know much about constitutional construction to know that § 7’s bar extends to executive department officials, elected or otherwise, from the Governor on down to mayors.
We’re approaching 200 years of understanding that the common law was and remains little more than a lot of judge made law, and so Art. 3, § 7, says the Supreme Court of Mississippi may not judicially legislate “in derogation of the paramount allegiance of the citizens of this state to the government of the United States.” Given its power of judicial review, see, e.g., Alexander v. Allain, 441 So. 2d 1328 (Miss. 1983), the Supreme Court is charged to make sure those exercising the legislative and executive powers do not transgress Art. 3, § 7.
No dictioner’s exegesis of the verb “derogate” and its derivatives is needed to see the point. Derogation connotes the partial, not the complete. Art. 3, § 7, enjoins state lawmakers not to diminish or to impair “the paramount allegiance of the citizens of this state to the government of the United States.” Nor to disparage or to belittle that paramount allegiance.
Each legislator who in the Regular Session 2013 was being asked to enact H.B. 490 had long since been told, “don’t mess with this ‘paramount allegiance’ at all.”
By its text, Art. 3, § 7, assumes a pre-existing “paramount allegiance of the citizens of this state to the government of the United States.” H.B. 490 doesn’t read as though its draftsmen had any such thought.
The short and sufficient answer is in the Pledge of Allegiance we recite so often. It is worth a pause that, each time each one of us says the Pledge of Allegiance, we are reaffirming a legally pre-existing allegiance to the United States of America, which at least includes its government, though that is hardly all.
Art. 3, § 7, protects us from state or local passage and enforcement of any law, rule or order “in derogation of the paramount allegiance” we pledge so often.
The word “paramount” connotes that our allegiance to the federal government is not exclusive. Nothing in Art. 3, § 7, precludes allegiance to our state and its government, and to our towns, cities and counties and their governments, except in case of conflict with our pledged paramount allegiance to the government of the United States.
But what is “the government of the United States” within Art. 3, § 7? To say it is “the republic for which [the flag] stands” is a tautology. Anthems, books, constitutions and laws that have been written afford an incomplete and clouded glimpses of the whole. Wars have been fought and peace has been made in its name. Laws have been passed and men have been hanged in its name.
Ten thousand pages later it will remain an ongoing democratic experiment, a living organism made by men and steered by their conflicting and contentious purposes, and in which each of us lives and participates daily with our votes and our taxes, with our respect for, our cooperation with, our wars with, our fears of, and sometimes just plain grudging tolerance of each other.
Individual liberty, the dignity and worth of each person, is a countervailing cornerstone. Most amendments to the U. S. Constitution secure some aspect of the individual’s right of privacy or right to vote, grounded in political recognition of the inviolability, dignity and worth of each person.
The blend looks something like this. Each citizen’s allegiance to the government of the United States includes both a duty to respect — and support — what the government has lawfully chosen to do and a right to work within the system to change course where a citizen believes the government is off base.
The duty to respect and support what the government has lawfully chosen to do is a function of the process the U. S. Constitution has ordained. No matter how fervently you may believe Obamacare is a bad idea, your paramount allegiance to the government of the United States says you should respect and support it in general, subject to your right of resort to the political process to try to undo it or change it.
By the same token, no matter how fervently you may have believed a decade ago that the U. S. War on Terror was a bad mistake, your paramount allegiance to the government of the United States required that you respect and support it in general, subject to your right of resort to the political process to try to stop it.
There is something very American and noble about the idea of The Loyal Opposition, notwithstanding our ongoing partisan contretemps.
Justice Tom P. Brady was quite outspoken in the 1950s and 1960s. His thinking was such that he found the Constitution of 1890 quite congenial, as it was originally written. Justice Brady viewed federal excursions — most prominently Brown v. Board of Education — as anathemas. Yet this bull headed, “unreconstructed” Mississippi jurist well explained our duty of paramount allegiance, when we extend his references to the Supreme Court to the entire “government of the United States":
“Our attitude toward a decision of … [the U. S. Supreme] Court does not authorize or control its rejection or acceptance. We must follow the decision until it has been abrogated by constitutional and legal procedures. Irrespective of how erroneous it may appear, or how odious it is, a decision of the … Supreme Court is still the ultimate in judicial determination and is binding on the tribunals and citizens of the respective states …” 3
And so of our attitude towards Obamacare, the War on Terror, and hundreds more actions of the government of the United States.
Of course Jeff Smith and his colleagues have the right of responsible dissent. Notwithstanding his affirmation of his paramount allegiance to the government of the United States, Justice Brady was confident that, in the end, “Just as water always seeks its own level, so absolute law will expose ultimately and punish its long submerged desecrations which have been committed in the name of justice.” 4
Until that day comes, it is the duty of Representative Smith and those who espouse his politics to join latter day Tom Bradys in the Loyal Opposition, which is state constitutionally bound to honor and defend “the paramount allegiance of the citizens of this state to the government of the United States,” warts and all.
