Some liberal governors are threatening to disobey laws that may be passed restricting certain liberal policies like immigration, drugs, “climate change,” “travel bans to states over disagreements regarding same-sex rights, and abortion. Good for them on the principle.

What if a federal court ruled that gun ownership is no longer permitted in the United States and all guns must be confiscated? Should the states comply and go on a gun confiscation program?

You and I know that it was morally right for states to outlaw slavery even if the national government had mandated the practice.

I was watching the 1961 film Judgment at Nuremberg some time ago. It stars many well-known actors of the era: Spencer Tracy, Burt Lancaster, Richard Widmark, Maximilian Schell, Werner Klemperer, Marlene Dietrich, Judy Garland, William Shatner, and Montgomery Clift.

It’s a powerful film that deals with events related “principally to actions committed by the German state against its own racial, social, religious, and eugenic groupings within its borders ‘in the name of the law.’”

“Judge Dan Haywood (Spencer Tracy) is the Chief Trial Judge of a three-judge panel that will hear and decide the case against the defendants. Haywood begins his examination by trying to learn how the defendant Ernst Janning (Burt Lancaster) could have sentenced so many people to death.”

What reason did the defendants give for their actions? They were only following orders.

Adolf Eichmann: “I cannot recognize the verdict of guilty… It was my misfortune to become entangled in these atrocities. But these misdeeds did not happen according to my wishes. It was not my wish to slay people… Once again I would stress that I am guilty of having been obedient, having subordinated myself to my official duties and the obligations of war service and my oath of allegiance and my oath of office, and in addition, once the war started, there was also martial law… I did not persecute Jews with avidity and passion. That is what the government did… At that time obedience was demanded, just as in the future it will also be demanded of the subordinate.”

I’m not saying that governors who comply will all federal laws are Nazis. I am saying that any statement by any governor who says that he will obey all federal laws regardless of the ruling is dangerous. If governors will “never do anything to disobey a federal court ruling,” we all should be worried.

Then there is the constitutional issue based on the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The doctrine of the lesser magistrate, also known as interposition, is not anarchy since the action is done with an existing magistrate.

If a person does not like a state’s laws, he or she can move to any of the other 49 states. It’s a great principle, the essence of freedom.

Here’s what Thomas Jefferson had said on the subject of judicial supremacy:

• “The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly, there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches.”1
• “But the Chief Justice says, ‘There must be an ultimate arbiter somewhere.’ True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal, where that of other nations is at once to force.”2
• “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”3
• “This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is,ad libitum (at one’s pleasure], by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt.”4

“Just following orders” or “just following the law” was a constant refrain at Nuremberg. John Warwick Montgomery explains the problem the tribunal faced:

When the Charter of the Tribunal, which had been drawn up by the victors, was used by the prosecution, the defendants very logically complained that they were being tried by ex post facto laws; and some authorities in the field of international law have severely criticized the allied judges on the same ground. The most telling defense offered by the accused was that they had simply followed orders or made decisions within the framework of their own legal system, in complete consistency with it, and that they therefore could not rightly be condemned because they deviated from the alien value system of their conquerors. Faced with this argument, Robert H. Jackson, Chief Counsel for the United States at the Trials, was compelled to appeal to permanent values, to moral standards transcending the life-styles of particular societies — in a word, to a “law beyond the law” of individual nations, whether victor or vanquished.5

There is a higher law. It was this law that Martin Luther King appealed to when he faced and opposed segregation.

The day may be coming when we’ll have to come under the political and legal sanctuary and protection of the states. This will mean voting for political leaders who agree with applying the Tenth Amendment to judicial and statist tyranny.

1. Thomas Jefferson to W. H. Torrance, 1815. [↩]
2. Thomas Jefferson to William Johnson, 1823. [↩]
3. Thomas Jefferson to William C. Jarvis, 1820. [↩]
4. Thomas Jefferson to Edward Livingston, 1825. [↩]
5. John Warwick Montgomery, The Law Above the Law (Minneapolis, MN: Dimension Books/Bethany Fellowship, 1975), 24–25. [↩]