The woke social justice warriors, continuing in their flailing fit of Maoist cultural destruction, have recently succeeded in removing the name of Henry Benning from Ft. Benning in Georgia.  But the good people of Georgia may want to find a way to honor him once again, for this same Mr. Benning – an honorable, lawyer, judge, and general of the 19^th century – in a ruling he wrote during his time on the Georgia Supreme Court, explicated a legal principle that could prove invaluable to the States in their battle with the out-of-control federal government.

In the case of Padelford v. Savannah (1854), he proclaimed that principle – that the State Supreme Courts are not inferior to the federal Supreme Court.  He said,

The Supreme Court of Georgia is co-equal and co-ordinate with the Supreme Court of the U. S.; and therefore, the latter cannot give the former an order, or make for it a precedent.

Further on, he expanded somewhat:

But are not the decisions of the Supreme Court of the United States to govern this Court, as to the rule of construing the Constitution? They are not, any more than the decisions of that Court are to be governed by the decisions of this.  The Supreme Court of the United States has no jurisdiction over this Court, or over any department of the Government of Georgia. This Court is not a United States Court; and therefore, neither the Government of the United States, nor any department of it, can give this Court an order. It follows, if this be true, that decisions of that Court, are not precedents for this Court.

To prove his statements, he provided a lengthy quotation from Alexander Hamilton, in summary of which he said,

The idea meant to be conveyed here is clearly this: that the General Government has a sphere in which it is supreme, and the State Governments a sphere in which they are supreme; that these spheres intersect each other, and that the space included between the arcs of intersection, is common to both-is a space in which both are equally supreme, and in which there is no rule but one-Qui prior est in tempore potior est in jure.

He continued:

The same principles have been expressed by Marshall, Chief Justice, since the adoption of the Constitution. In McCulloch vs. Maryland, he says, “In America, the powers of sovereignty are divided between the Government of the Union, and those of the States. They are each sovereign, with respect to the objects committed to it, and neither sovereign, with respect to the objects committed to the other”. (4 Wheat. 410.)  Now, if the General Government, by its Judiciary, can come out of its sphere, into the sphere of a State Government, and ravish a case thence out of the hands of the State Judiciary, the two Governments are not equally supreme within their respective spheres. But they are, by admission of Hamilton and Marshall, equally supreme in their respective spheres; therefore, the former Government cannot do this, with respect to the latter. As well might it be said that England could order a case out of France, from a French into an English Court; or that a State Court could order a case out of the Supreme Court of the United States into it. None but a superior can give an order; none but an inferior is bound to obey one.  The question, when tried by the rule of strict construction, does not admit of a doubt. That rule is, that the General Government has no powers, except such as have been expressly delegated to it; and that the delegations of express power are to be strictly construed.  Now, jurisdiction over State Courts is not expressly given to the General Government, or any department of it.  Therefore, according to this rule, such jurisdiction is not given at all.

To give yet more strength to his position, he then showed that the drafters of the Philadelphia constitution expressly rejected proposals that would have given the federal government the ability to veto State laws:

Now the power to annul State Laws was not given to the General Government. The Federal Convention refused repeatedly to give this power to any department of the General Government.  In Mr. Randolph’s propositions, which were the basis of the Constitution, the effort to give this power first appears. His 6th resolution had these words, “Resolved, that each branch (of the Legislature) ought to possess the right to negative all laws passed by the several States, contravening, in the opinion of the National Legislature, the articles of union; or any treaty subsisting under the authority of the United States”.  His 8th, these: “That the Executive, and a convenient number of the National Judiciary, ought to compose a council of revision, with authority to examine every act of the National Legislature, before it shall operate; and every act of a particular Legislature, before a negative thereon shall be final; and that the dissent of the said council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by – of the members of each branch”. (5 Ell. Deb. 127-8.)  Here the Judiciary was to take part in the veto of State Laws. It might, with the President, affirm a veto applied by either branch of Congress to a State Law. But even this limited right was not allowed to the Judiciary. It was struck from the resolution, and at once. (Ib. 166.) And although asked for repeatedly afterwards, by the enemies of the States, in the Convention, it was pertinaciously refused. The Judiciary was refused the power to participate in any revision or negative of any Laws, whether State or Federal. (See Ib. 344, 428.)  So the power proposed to be given to the Federal Legislature, “To negative all laws passed by the several States, contravening in the opinion of the National Legislature, the articles of Union”, &c., was refused by the vote of seven States to three. (Ib. 321, 322.) Even Gouverneur Morris “opposed this power as likely to be terrible to the States, and not necessary, if sufficient power should be given to the General Government”. (Ib.)  *46 Indeed, members of the Convention, Mercer, and Dickinson, and Sherman, expressed decided opinions against the propriety of the doctrine, that “The Judges, as expositors of the Constitution, should have authority to declare a Law void”; and these opinions were feebly combatted. (Ib. 429.)  It appears, then, that the Convention which drafted the Constitution, although repeatedly requested to give the veto of State Laws to the General Government, steadily refused it -refused to give a mere modicum of it to the Judiciary.- And if it refused to give the power directly, it is not to be presumed that it gave it indirectly, by a forced implication in the said third article-gave it, indeed, without knowing what it was doing.

Justice Benning summed up, boldly, without apology,

The conclusion is, that the Supreme Court of Georgia is co-equal and co-ordinate with the Supreme Court of the United States, and not inferior and subordinate to that Court. That as to the reserved powers, the State Court is supreme; that as to the delegated powers, the U. S. Court is supreme; that as to powers, both delegated and reserved- concurrent powers-both Courts, in the language of Hamilton, are “equally supreme”; and that as a consequence, the Supreme Court of the United States has no jurisdiction over the Supreme Court of Georgia; and cannot, therefore, give it an order, or make for it a precedent.

Each June, folks in the 50 States have come to await with fearful expectation the pronouncements of the justices of the federal Supreme Court, as though they were the final arbiters of all legal disputes that arise within the union.  As St. James, the brother of the Lord, says, ‘My brothers, this should not be so’ (Epistle of St. James 3:10).  The ruling of Justice Benning in Padelford v. Savannah is a fertile field waiting to be cultivated, the fruits of which would be a profound yet beneficial re-ordering of the powers between the States and the federal government, a re-ordering that would allow the States to pass and enforce laws that uphold traditional Christian community life without being vetoed by a federal judge:  laws that affirm two sexes and that marriage is between one man and one woman; that ban abortion and drag shows and the forced taking of experimental treatments; that acknowledge that pornography is not ‘protected speech’ and that prayers, Bible reading, and hymns in public places are such; etc.

The State Supreme Courts should absolutely be at the forefront of efforts to protect sound State and local laws from federal meddling.  But are there any State judges willing to undertake those labors, willing to sacrifice themselves (for the opposition from the federal leviathan and its supporters would be brutal; recall the attacks on Chief Justice Roy Moore of Alabama), for the good of their neighbors?