January 25, 2011

This op/ed originally appeared in the Richmond Times Dispatch

Democracy and the governing of our republic is a contentious business. No matter which Party is in power and, most frequently, no matter who the occupant of the Oval Office, a significant portion of the citizenry is unhappy with the policies being proposed. Most Democrats, and even many Independents and Republicans were distressed with President Bush’s leadership and ideas. Now, the situation is reversed, with many Republicans and some Democrats wary of President Obama’s leadership.

However, the difference is that, unlike in the past, many Republicans have chosen to first challenge the legitimacy of this president and this government and, when that fails, to now attempt to actually change our form of government, undermining the very democratic principles that have served us so well. As large and diverse a country as we have, we have succeeded in egalitarian and elected government because our system of checks and balances works so successfully.

This past summer, Governor McDonnell refused to state his position on the principle of nullification, the idea that a state can unilaterally override a federal law. Unfortunately for the governor, this is actually not a concept that is open to debate. Whether or not the governor concedes the point, nullification has been resolved by the Supreme Court. Not even sixty years ago, in a response to attempts to ignore Brown v. Board of Education in which African-American children were first given the opportunity for an equal integrated education with white children, the Supreme Court ruled on Cooper v. Aaron. In this extremely significant case, the Court ruled that, because the Supremacy Clause of Article VI made the United States Constitution the Supreme law of the land and Marbury v. Madison gave the Supreme Court the final power of judicial review, then all states are bound by federal law and bound by Supreme Court decisions.

Moreover, we as Virginians, should recall the amount of blood spilled, families and homes decimated and young men killed the last time states made foolish decisions based on nullification. Surely, here in Virginia, which is criss-crossed with battlefields and graveyards of those who died fighting in that war and those who died trying to protect their homes and families and the numbers of slaves and free blacks who died trying to protect their loved ones and their few and meager possessions, we must recognize the inflammatory and even dangerous nature of talk of nullification.

Now, in a perversion of this concept, bills have been introduced this General Assembly Session to call for a Constitutional Convention which would amend the US Constitution to allow two-thirds of state legislatures to overturn a federal law. While on its face, this seems a more palatable concept, it is, by its very nature, completely undemocratic. Were this to pass, thirty three states could join together to overturn a law over the objections of seventeen states.

However, nothing in this concept speaks to the size or population of any of the states. Using the latest United States Census figures now available (2000), the bottom thirty-three states total 92 million people, or about 30% of the total US population. The largest seventeen states total 216 million, or about 70% of the population. If this concept were enacted, about 30% of the US population, less than one-third, could overrule federal laws that passed both Houses of Congress.

Instead of the democratic republic that has survived for over two hundred years, we would find ourselves in a tyranny of the minority. Significantly less than half the population could be dictating which laws, although debated and passed by both houses of Congress and signed by an elected president, should actually be enacted. This is a complete abrogation of the principles on which our country was founded.

We are Americans, proud to be part of the greatest democracy on earth, and if we disagree we have legal, political and legislative means to resolve those disagreements. Living in a democracy means that if we don’t like what is happening we will have an election and we can peaceably, within our Constitutional procedures and rights, address those grievances. Elections are determined by a majority vote. Laws are then enacted with a complicated process that ensures that a majority of popularly elected officials in two different bodies have to support them and then a president elected by a majority of electoral college votes has to sign those bills for them to be laws. Even then, should there be any doubts about the constitutionality and legitimacy, under our Constitutional principles, the Supreme Court has the complete authority to rule it unconstitutional and, therefore, null and void.

This system has worked and continues to work. This is why both parties should and must work together not for undoing the system but for ensuring that all Americans recognize the privilege and importance of participating and voting.