Back in the colorful but tendentious late '60s, when I was a student at the University of Wisconsin--Madison, one of the most interesting of many local personalities was a lawyer, activist and business owner named Edward Ben Elson.
Eddie Elson cared passionately about many issues, especially the nation's increasing mistreatment of mentally ill citizens, who over the decades as a matter of "compassionate conservatism" were turned out into the streets to fend for themselves because ... freedom. Interested in breaking through the noise barrier, Elson was adept at staging political happenings to draw attention to his beliefs, such as the time he announced he was running for Dane County district attorney to a roomful of reporters. He did it in the nude.
For my money one of Elson's best of many good lines was his campaign slogan, a tongue-in-cheek poke at The Establishment and its continuing fetish for certitude. The slogan: "Obey only good laws."
Truth is, Elson the progressive activist would have had no patience whatsoever with the growing number of red states that have unilaterally decided (with the help of right-wing think tanks) that they can blithely ignore federal law, if they choose. This custom, known in the movement as "nullification," echoes a political manifesto first uttered when secession and the Civil War loomed in slave-friendly states of the 1850s.
Just consider the latest example, as described in a recent dispatch at Huffpost.com:
The Alabama state Senate passed legislation Tuesday that would nullify all federal gun laws in the state, joining a growing list of state legislatures looking to ban gun legislation from the books. The Alabama bill says that any federal law that is contrary to the Second Amendment would be declared "null and void" in the state.
The thinking in red Alabama and other states goes like this:
Never mind the conservative majority on the US Supreme Court, or the federal judiciary in general. If they don't affirm right-wing policies, we'll just pretend they don't exist or at least don't matter.
What are constitutionally minded progressives to think and do about this? Besides electing more sensible lawmakers, that is. My suggestion:
Nullify the nullfiers.
Read on past the cumulus cloud.
If a member of your athletic club or condominium association refused to follow established rules, what would happen? That's right: At some point, the offenders would be tossed out and maybe even banned from future membership.
Granted, the US doesn't quite work that way. A "member" of the USA, whether a person or corporate or government entity, who doesn't follow the law and is sanctioned as a result, usually has a chance to redress that sanction whether it be a prison sentence by trial, a fine, or other form of censure. He or she or it (yes, a corporation is an "it," the awful Citizens United decision notwithstanding) can sue or appeal. Failing that, there is always the option of seeking to change the law.
But if all that fails, then there's one final option for anyone or thing subject to the laws of the USA, short of the redneck prescription of the 1960s to either "love it or leave it." And that's to practice civil disobedience. We progressives, who have fought many hard-nosed battles for our rights over the past century, know this intimately. But no campus or civil rights protester of the 1960s ever expected that joining a peaceful sit-in or occupying the office of an inhumane or unjust decision-maker would come without negative consequences.
That sort of civil disobedience continues. Just to consider one under-reported example: For many years, protesters young and old from around the country have converged routinely on what used to be known as the US Army's School of the Americas (now the Western Hemisphere Institute for Security Cooperation) at Fort Benning, Georgia, where they block entrances and are regularly hauled off to sordid local jails. They are willing to pay this price in order to demonstrate their anger over the military establishment's long history of teaching dictators and armies in Central American countries how to control and subjugate their citizens, through force if need be.
Trouble is, while progressive activists who engage in civil disobedience frequently accept that they will have to pay a price for their illegal actions and then do so, right-wingers -- especially those in power positions -- more and more seem to regard the law as something they can define and defile at will. This is especially so on those rare occasions when the courts -- which are often packed with right-wing ideologues -- nevertheless break ranks and affirm a law unfavored on the right, as in the case of the Supreme Court's decision upholding the Affordable Care Act despite Republican insistence that it was unconstitutional and should be repealed.
When simply ignoring the decision of the state and federal courts is not an option, Republicans begin working hard to wreck implementation of disfavored laws by refusing to fund them, by holding them hostage to other interests, or by incrementally reinterpreting them, as in the case of abortion rights.
So, what are conscientious citizens to do if a state like Alabama, in thrall to wing-nut lawmakers, decides to violate federal gun laws (weak though they are) because it prefers to pick and choose what it regards as good legislation, irrespective of what courts may have decided? I say, let the rest of us pick and choose among states we regard as law-abiding, in the way those lawmakers are picking and choosing.
On a personal level, we should avoid visiting such states, even for a vacation. Don't spend money with businesses that are quartered in such states or have contracts with them. Leave the state if you're a resident and can afford it. Work to propose that lawless states begin again to abide by the law, through legislative realignment and by insisting upon federal sanctions. You can also insist that your own state refuse to do business with law-breaker states.
Finally, if all fails, give them what they sometimes profess to want -- as in, for example, the case of Texas Gov. Rick Perry. Call their bluff. Tell them to actually try seeking secession, not just talking about it. And in the unlikely event secession comes to be, then go ahead and let such reckless states drop their membership in this great, continent-spanning nation. Because while states like Texas are messing things up for many of its own citizens and the rest of us, we in turn are not supposed to mess with Texas. Which amounts to letting the bullies have their way
If Alabama doesn't want federal emergency relief funds, why, then it should persist in ignoring other federal laws its temporary political leaders dislike, such as health care reform or gun control. But the state can't have it both ways. Like the Eddie Elsons of America's historical left, a red state should retain the right to say anything it likes about the law of the land, and take all legal actions to change those laws, and maybe even engage in civil disobedience. But as in the case of southern states that fought desegregation with force in the '50s and '60s, such lawlessness should not go unpunished.
Because, for red states (and it's only red states) to argue that disfavored laws can be "nullified" itself nullifies federal law, along with the history of court precedents dating back to the Civil War. That's a tautology -- a big word, perhaps, for some simple-minded lawmakers but one we should help them learn, and fast.