Declaring its group a “constitutional county” on Might 23, 2023, the Board of County Commissioners in Ottawa County, Michigan, voted 9-1 to not implement any legislation or rule that “restricts the rights of any law-abiding citizen affirmed by the USA Structure.”
Nor will the county present assist or sources to any state or federal company that county officers choose to be infringing on or proscribing these rights.
Ottawa will not be the primary county in Michigan to declare itself a refuge from what its leaders say are anti- or unconstitutional actions undertaken by an overzealous state or federal authority.
Livingston County, additionally in Michigan, handed the same decision in April 2023.
It isn’t clear what number of there are, precisely, however there are additionally self-designated constitutional counties in Virginia, Texas, Nevada and New York. As a scholar of constitutional idea, I imagine extra will comply with, particularly within the roughly 1,100 counties of the nation’s 3,200 counties which have already declared themselves Second Modification sanctuaries.
However the place Second Modification sanctuaries goal to create havens for gun rights allegedly below siege, the constitutional county motion has a broader agenda.
One of many drafters of the Ottawa Decision, for instance, defined, “As we wrote this decision … we acknowledged the necessity to defend not solely Second Modification rights however all constitutional rights. … We want to spotlight freedoms and constitutional rights which have been violated over the previous few years, in addition to these presently in danger as a result of societal and political pressures.”
Why constitutional counties are unconstitutional
Though the 2 Michigan county resolutions are mainly symbolic and do little greater than encourage – somewhat than order – native legislation enforcement authorities and native officers to ignore federal legal guidelines they declare are unconstitutional, the hazards they pose to the U.S. constitutional system are substantial.
This mind-set is profoundly mistaken and undermines Individuals’ collective dedication to constitutional democracy.
Declaring oneself a constitutional county undermines the authority of officers approved to behave below the Structure. I imagine it in the end subverts the authority of the Structure itself.
When these resolutions instruct county police to not implement sure legal guidelines, comparable to crimson flag legal guidelines that enable the confiscation of firearms from sure folks, they violate Article 6 of the U.S. Structure. Article 6 declares that the Structure itself and federal legal guidelines are “the supreme Regulation of the Land” and can’t be overruled or outdated by state legal guidelines or legal guidelines at decrease ranges of presidency.
So any county that claims to nullify federal legal guidelines it finds objectionable raises constitutional issues. So, too, do assertions of a proper to hinder federal legislation or to impede the train of federally assured rights and liberties.
In each eventualities, native authorities declare they’re below no constitutional obligation to implement, or to assist state or federal officers implement, legal guidelines and laws which might be, of their view, plainly unconstitutional.
However, if the purpose is solely to refuse to help federal officers in implementing federal legislation, then that most likely will not be unconstitutional.
In Printz v. United States, the Supreme Courtroom held in 1997 that federal officers can not drive state and native officers to implement federal legislation.
Constitutional rules – or politics?
Among the many constitutional liberties Ottawa County officers suppose are in danger is freedom of faith, which they are saying is threatened by state and federal range necessities in colleges. Different rights they are saying are threatened embody these granted by the Second Modification and parental liberties; in addition they cite sure sorts of threats to particular person liberty, comparable to COVID-19 masks necessities.
Notably absent had been issues about threats to reproductive autonomy, sexual and gender identities, or public security endangered by firearms violence. Professions of constitutional constancy by constitutional county advocates are extra typically about politics than actual concern for the Structure.
These declarations can be utilized – and I imagine can be used – for just about any political agenda and to evade federal legal guidelines that some residents discover objectionable.
In doing so, they grow to be little greater than political excuses to end-run Article 6 of the Structure at any time when it fits.
Taking the Structure severely
It’s tempting to applaud any effort by residents to take the Structure severely. As I wrote in my e-book “Peopling the Structure,” a wholesome and vibrant constitutional democracy requires residents who perceive its guarantees and take some duty for making these guarantees a actuality.
A decision that merely makes a symbolic declare about federal legislation or about what the Structure really means, and doesn’t order authorities to disregard or violate federal legislation, doesn’t itself violate the Structure. Such claims are a significant a part of civic and constitutional debate in a wholesome constitutional democracy.
However constitutional populism is a double-edged sword. The road between principled constitutional variations of opinion and partisan politics pretending to be a constitutional argument won’t at all times be apparent or straightforward to discern.
When it substitutes partisanship for discernment, and assertion for argument, the constitutional counties motion undermines the very Structure it purports to honor.
This story incorporates materials from a earlier story in The Dialog by the creator.