America’s post-constitutional era

By Sean Harshey

From our nation’s founding, it was established that federal law would trump state laws, where there was a conflict. Article VI, Clause 2, of the Constitution is where we find the Supremacy Clause. It established the Constitution, and all laws enacted pursuant to it, as “the supreme Law of the Land.” This Article also binds judges and officials of the government and of the states to support the Constitution and the laws enacted thereunder. This is the oath public officials swear when they take office. But we are now in a post-constitutional era where officials from local prosecutors to the president of the United States openly disregard their oaths and pick and choose what laws they want to ignore or enforce, depending on their own personal preferences.

There is a process for passing laws. There is a process for amending the Constitution. With the odd exception of the 27th Amendment regarding congressional salaries (the proposed amendment had been hanging around since the 1780s), there has been no serious effort to amend the Constitution since 1971 when the voting age for American citizens was set at 18. Nobody even tries to amend the Constitution anymore. Liberals can achieve any policy goal through judicial dictate. For the past 50 years, the left has pursued their desired changes through lawsuits claiming new constitutional “rights” and using protest, social pressure and the appeals process to get their demands to the U.S. Supreme Court and lobby for the court to declare their demand to be a new right. None of this is done pursuant to our founding documents, and Christopher Caldwell’s 2020 book “The Age of Entitlement” does an outstanding job of documenting this legal transformation since the 1960s.

But creating new rights by judicial fiat has now been augmented by government officials refusing to enforce duly-enacted laws simply because elected leaders don’t like the laws.

During the Obama years, the administration simply refused to enforce federal immigration laws and substituted executive orders as de facto new federal law. The borders were open, and border states were swamped with illegal crossers, crime and the pollution that comes from human trafficking. When the administration refused to enforce the law, states took the matter into their own hands and passed state laws mirroring federal laws and began enforcing the law themselves. The Obama administration sued Arizona to block enforcement of its own law, and the Supreme Court agreed, striking down state laws dealing with immigration on the basis that such matters are a uniquely federal function. In other words, in effect, “The federal government will not enforce federal laws, states cannot enforce federal laws, and states cannot enforce their own laws on this matter.

Fast forward to the Trump administration and the renewed efforts at immigration enforcement. The Trump administration was sued at every turn in its attempts to simply enforce laws that had been on the books for years, with claims that such enforcement was inhumane, a violation of immigrants’ rights or otherwise violated the Constitution. Note that during all these disputes, nobody ever actually changed the law or argued the laws are unconstitutional. Just that application or enforcement of the law should be illegal.

Over the past several years, several states and cities have claimed to legalize marijuana, notwithstanding that marijuana use, dealing and production is illegal under federal law. Drug laws are another area where the Obama administration simply stopped enforcing laws on the basis of personal disagreement.

This non-enforcement tactic has since taken root at the state and local levels. A remarkable feature of the past several election cycles has been the rise of prosecutors, mostly in major American cities, promising to refuse to enforce entire lists of criminal laws with which they disagree. Boston, Houston, Los Angeles, St. Louis, San Francisco and other cities have elected prosecutors who are following through on promises to simply ignore state and federal laws and refuse to prosecute drug crimes and other criminal violations they wish were not illegal. Just this week, Baltimore State’s Attorney Marilyn Mosby announced her office would no longer enforce certain laws relating to drugs, prostitution, public defecation, trespassing, traffic violations and other crimes she feels unfairly “criminalize” certain people. It amounts to a reverse version of Rudy Giuliani’s “broken windows” policing in the 1990s that dramatically reduced crime in New York City after decades of criminal destruction.

In addition, leaders in individual states and cities began ignoring federal law and created “sanctuary cities” openly defying federal law. It was disappointing to many that the Trump administration never sued these cities and states, citing the previously mentioned 2012 Supreme Court decision as unconstitutional interference with the uniquely federal function of immigration enforcement.

Now conservative communities across America have begun using the liberal sanctuary city model to create “Second Amendment sanctuaries” where leaders promise to openly defy federal attempts to infringe on citizens’ gun rights. Likewise, several communities around the country have established “sanctuary cities for the unborn,” creating their own legal framework opposing federal laws or Supreme Court decisions. COVID laws provide another example of American communities deciding to enforce their own COVID restrictions in flagrant contravention of state laws.

Our nation’s legal foundation is coming apart at the seams as the specifically prescribed processes for passing laws, enforcing laws, amending the Constitution and honoring the Supremacy Clause are increasingly ignored by individual officials at every level. We are in a post-constitutional era, where the personal opinions of individual leaders trump the Constitution.

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