GARLINGTON: The Constitutional Ombudsman

Since 1787, one little question has continually haunted the States:  Who has the final say in the matter of interpreting federal and State constitutions and laws in the United States?  Despite the grand claims from the federal government (particularly the federal Supreme Court), it is not at all settled that their word is weightiest.

If one takes a quick look around, he will see a number of instances of States and localities thumbing their noses at the federal city – whether it is the legalizing of hard drugs in various States and cities, the anti-gun owner policies of California and NYC, the illegal immigrant sanctuary cities like Chicago, etc.

The problem is that the Philadelphia constitution is silent on this matter.  Into that silence the federal Supreme Court famously interjected its rather loud and raucous claim to be the final arbiter of constitutional questions in Marbury v. Madison (though the federal Judiciary Act of 1789 could come in for a good whoopin’ right about now, also).  But its claim has no supporting evidence.  On the contrary, even the centralizers in The Federalist Papers told us that that Court is supposed to be the weakest branch.  We should hold the justices to that.

Its claim to finality, therefore, is worthless.  They may make as many rulings as they like based on that claim, but no one is obligated to treat their decisions as forever binding.

But if the Supreme Court is not the final authority, nor any other branch of the federal government, then who is?  Thomas Jefferson actually gave us the answer in 1798 in the Kentucky Resolutions:

“ . . . to this compact each state acceded as a state, and is an integral party, its co-states forming as to itself, the other party: That the Government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the constitution, the measure of its powers; but that as in all other cases of compact among parties having no common Judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”

Each State, then, is the final authority of the constitutionality of laws.  This is further borne out by the ratification statements of New York, Rhode Island, and Virginia, when they adopted the Philadelphia plan of union.  Rhode Island, which is about as far from an evil Johnny Reb Southern State as one can get, didn’t leave much to the imagination that the States are the higher power in the federal-State relation when she declared, “That the powers of government [delegated to the feds—W.G.] may be reassumed by the people whensoever it shall become necessary to their happiness.”

Having established the grounds for State supremacy, there is still a problem.  How is this power to be exercised in the State governments?  In which person or department is it vested?  The State legislatures?  State attorneys general?  Somewhere else?

There is one sure answer:  A Statewide convention called into session for the purpose of judging a constitutional issue is a legitimate expression of this power.  But this is a cumbersome process, difficult to organize and employ.  Something nimbler is needed for regular use by the States.

That leads us to a second answer, which is the main point of this essay:  A State may create an officer, via amendment to her State constitution (which would be another instance of a State acting in her sovereign capacity), specifically empowered to act as the final judge in matters of dispute about the constitutionality of laws, an officer that would appropriately be called the constitutional ombudsman.

It would be extremely challenging to make large-scale changes to the federal constitution at this time, so it is best to leave that tar baby alone and aim for the easier task of amending State constitutions to create the office of constitutional ombudsman.  His selection could be made by concurrent majority (requiring a majority of all counties/parishes to vote in his favor), simple numerical majority, appointment by the governor with consent of the legislature – whatever each State felt was the best fit for her traditions, though for such an important post a longer term of office ought to be considered by all the States, 6 to 10 years perhaps.

One of the main problems with advocating for State sovereignty up to now has been that it is an ill-defined and vague concept, seemingly empty words and phrases for most folks.  Vesting that sovereignty in an actual official would make the idea instantly understandable for people, a flesh-and-blood definition in action – the incarnation of State sovereignty, if you will.

For those States wise enough to create the ombudsman office, the federal leviathan may continue (to use the imagery and language of Psalm 2) to rage all it wants, but the States will laugh and “have it in derision,” as they will finally have an effective means of combatting federal abuses of power.  At the petition of anyone in his State harmed by a federal law, ruling, executive order, etc., the ombudsman would review the claim and issue his ruling.

He could review, for instance, Obergefell v Hodges and re-implement his State’s protection of traditional marriage amendment; or he could veto the Biden regime’s Title IX rules to force public schools to make concessions for transgender athletes; or the ruling allowing birthright citizenship could be overturned.  On we could go.  The list of abuses has grown very, very long.

It will inevitably be objected that such an office in the various States would destroy any possibility of a uniform set of laws for the union, but that is precisely the point.  There does not necessarily have to be much uniformity amongst them.  The United States is not one nation, indivisible; they are 50 nations, voluntarily united, each with the right to live according to its own inherited folkways and history without intrusion from outsiders who wish to cancel, mangle, or rewrite some part of them.

Besides, as we noted at the outset, State/local supremacy is already de facto the rule in a growing list of places.  The creation of the ombudsman’s office would merely solemnize and make official the forces that are now at work, and that, frankly, will always be at work, no matter how hard the idolizers of Hamilton, Lincoln, FDR, etc., try to crush the life out of them.

Local rule through a variety of institutions has served the West well in the past.  With the creation of the constitutional ombudsman, the States could begin to reap a bit more of those benefits once again.  What is truly for the good of all the States in the union will find a way to survive the diversification of the laws, but anything entering unlawfully into any one of them will be, at long last, capable of being effectively blocked.

Attorney General Landry floated the idea of major reforms to Louisiana’s constitution in his gubernatorial campaign announcement video.  The time is ripe, then, to begin discussions about adding a constitutional ombudsman to its provisions.

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