As the national election outlook for conservatives looks gloomier by the day, it’s becoming more apparent that governors and state legislatures will serve as the last defense for liberty. By that measure, Florida’s Governor Rick Scott is demonstrating exactly what NOT to do as Republican leader of an important state: unconditionally surrender to federal overreach. He has now publicly surrendered marriage and abortion to the rogue courts.
States have Full Control Over all Internal Affairs
Our Founders intended the states to serve as a platform to give voice to the people in the event that the federal government overstepped its boundaries. And they were very clear on the nature of those boundaries. Congress had enumerated powers, “exercised principally on external objects, as war, peace, negotiation, and foreign commerce,” in the words of Madison in Federalist #45. The executive branch was tasked with executing laws under those powers, and the judiciary interpreted those laws while having “neither force nor will” over policy issues.
What about the states?
Their powers, according to Madison, were to be “numerous and infinite,” extending to “all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.”
Yet, not only has the federal government intervened in every aspect of internal order and liberty within the states, the unelected federal judiciary has crushed their ability to function as sovereign entities. Just since the release of my book last month, federal courts have mandated states fund Planned Parenthood, destroyed religious liberty in Mississippi, codified transgenderism into law in several cases, forced states to give birth certificates to illegal aliens, and tossed out the most basic voter integrity laws and traditional ballots while mandating early voting and voter registration of 16 year olds.
What do the federal courts and executive have to do in order to elicit an appropriate response from the Republican-run states?
Well, according to Rick Scott, there is no floor to the insanity.
Governor Scott’s Sunshine Smooch of the Federal Courts
Last week, a federal district judge permanently “blocked” (not that courts can block laws) a measure in Florida — duly passed by the state legislature and signed by the governor — which would have cut off $500,000 in funds to Planned Parenthood “A state agency, a local governmental entity, or a managed care plan … may not expend funds for the benefit of, pay funds to, or initiate or renew a contract with an organization that owns, operates, or is affiliated with one or more clinics,” read Florida’s House Bill 1411. In a growing pattern throughout the country, the lower federal courts are forcing states to fund a private entity under criminal investigation for harvesting baby organs. These courts believe private organizations have a right to taxpayer funds, even for something that violates the conscience of half the citizens.
Instead of boldly proclaiming that a federal court had no jurisdiction to overturn such a statute, Rick Scott not only complied with the ruling but has declined to pursue further legal action, a move that, according to the Naples Daily News, “greatly sped resolution in the case.”
This flaccid response from Governor Scott comes just weeks after he declared gay marriage “the law of the land” because “the Supreme Court has already made a decision,” even though states have plenary power over marriage. Someone ought to inform Scott that the fight isn’t over because the marriage ruling has codified the sexual identity agenda as a super-right — over and beyond mandating marriage licenses. Religious liberty, conscience, and property rights — the most foundational inalienable rights — are the casualties of this super-right. Is nothing sacred from judicial tyranny?
If federal courts can simply redefine marriage or mandate taxpayer funding for a criminal abortion enterprise, what exactly did Madison mean that almost all non-defense issues would be within the purview of the state? What is the purpose of having states or electing Republican governors if they will roll over in the face of such systemic violations of the Constitution?
Let’s engage in a thought exercise for a moment. What if Congress were to pass a law mandating states accept all forms of marriage (polygamist, incest, bestiality, a picnic bench, etc.) or require states fund a white supremacist social work organization, or order a certain number of weeks of early voting in a given state? Would that be the law of the land?
Of course not. Hamilton blatantly said with regards to the Supremacy Clause of the Constitution that “it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land.” In fact, he said they would be laughed off: “These will be merely acts of usurpation, and will deserve to be treated as such.”
Hamilton said this with regards to laws passed by Congress, the elected branch of government, which, according to Madison, “necessarily predominates” in a republican form of government. Could our Founders have ever envisioned such craziness emanating from the unelected branch, which was to have “neither force nor will,” being tolerated by governors?
Democrats Know How to Fight Courts Even With Constitution not on their Side
But we need not revert to our out-of-vogue Founders to find governors defending their turf. Just look at what the Democrats do when they don’t like a court decision. Virginia Governor Terry McAuliffe announced yesterday that he is unilaterally restoring voting rights for 13,000 felons in Virginia, and is planning to incrementally restore voting for tens of thousands of additional felons. This comes after the Virginia Supreme Court ruled that his plan to issue a blanket amnesty for 206,000 felons violated Article 1 Section 7 and Article 2 Section 1 of the Virginia Constitution. Why? Because McAuliffe is carte blancherestoring voting rights to entire classes of felons without communicating specific reasons to the legislature on a case-by-case basis. McAuliffe didn’t give up and declare the court decision to be the law of the land. He plowed ahead with piecemeal restoration of voting rights to achieve the same objective!
Let’s take a step back for a moment: McAuliffe is implementing an executive action in contravention to long-standing legislation and practice since Virginia’s founding. Further, it was a state court, not a federal court that said he violated the state’s constitution. Yet, McAuliffe had no problem fighting on. How much more so should Republicans governors who are upholding state statutes or long-held state traditions in the face of opposition from federal judges who have no jurisdiction over this subject matter — fight to the death to defend their turf?
The sad reality is that there is at least even-odds that Hillary will be president, and that is a charitable prediction Even if Republicans win this election, the courts will relentlessly strike down the most common sense laws within the purview of state powers. It is quite evident that states will be our last line of defense for liberty. The federal government is not going to give the stolen power back willingly; states will have to rip it out of the hands of the federal leviathan. Governors like Rick Scott are moving in the exact wrong direction by legitimizing federal judicial tyranny without at least putting up a fight.
When it comes to standing up for state powers, this is one area conservatives might want to take their cues from Democrats. In the long run, they will have no other choice.
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Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.