Tucson may be a 17-hour drive from the occupied federal buildings in southeastern Oregon, but the occupiers’ arguments sound like an echo from Arizona.
The federal government has overreached by so much, the argument goes, that it is behaving unconstitutionally, forcing us to act unilaterally to rein it in.
That’s what the armed men say who are occupying the offices of a remote national wildlife refuge in Oregon. They argue the federal government went too far in pursuing what they say are excessive sentences against two ranchers convicted of arson.
That’s also what our own state Rep. Mark Finchem, an Oro Valley Republican, says. A bill Finchem has introduced would prohibit the state from using any resources to support or implement unconstitutional presidential executive orders, federal policies or even U.S. Supreme Court rulings.
“The court can pass an opinion all day long,” Finchem told Howard Fischer of Capitol Media Services. “But until that opinion goes back to Congress and becomes an enactment, and is signed into law, a statute, by the president, it’s not operable.”
Finchem told me, “States are co-equal sovereigns, so we also have an opinion that matters in this.”
Yes, the Supreme Court is not really so supreme in the view of an increasingly prominent group of self-described “constitutionalists.” We all have an opinion, after all, and who’s to say the state’s view isn’t actually the correct one?
That’s the fundamental problem with the “constitutionalist” fever that has a hold on a good part of Arizona’s and America’s right wing. Their arguments devolves into an anarchical view that our country should operate based on cherry-picked constitutional principles interpreted by ad libbed authorities.
My education on these matters — so-called militias and constitutionalists — goes back more than a decade. In the late 1990s, while covering Tucson’s federal court, I repeatedly went through civil suits by people claiming that judgements made against them were invalid because they were made in courts where a gold-fringed American flag flew, making it an admiralty court.
That’s one of the outer rings of anti-federal-government conspiracy theories, but ultimately most of them are related in declaring the government’s actions unconstitutional and our own need to rein them in however we see fit.
Over the years one Southern Arizona character really helped me grasp “constitutionalist” arguments and their weaknesses. Richard Mack, the former sheriff of Graham County, has had periods of national prominence since the mid-1990s.
He won a 1997 Supreme Court ruling that sheriffs do not have to perform background checks for gun purchases, as dictated by federal law, and spun that into a partial career in public speaking.
His big argument is for “constitutional sheriffs” — the idea that sheriffs are the top constitutional authority in any given county.
In his view, sheriffs — because they’ve sworn the oath to uphold and defend the constitution, and because they are elected — should step in when constitutional rights are being violated. A constitutional sheriff would have stopped the arrest of Rosa Parks for refusing to sit at the back of the bus, Mack has often said.
How are they to judge? Well, if they swear an oath to protect and defend the Constitution, then it’s their job to figure it out. And we are apparently to accept their judgement.
One of the occupiers of Malheur National Wildlife Refuge offices is Jon Ritzheimer, a man who became infamous after organizing an armed anti-Islam rally in Phoenix last summer. “F--- Islam” is a slogan he embraced.
In the fall, Ritzheimer pursued the idea of arresting Debbie Stabenow, a U.S. senator from Michigan, because she voted in favor of the U.S.-Iran nuclear deal — treason in his view and that of some fellow travelers from Michigan.
The idea was to journey across the country, arresting all those senators who voted for the deal, finishing up by arresting the president.
Now, that may be a bit further out than some “constitutionalist” actions, but it is in keeping with the idea of do-it-yourself constitutional interpretation and enforcement. This is something our Legislature, too, has excelled at over the years.
In the last decade the Legislature has proposed nullification of federal laws, forcing federal agents to register with county sheriffs, and converting all federal lands into state lands. None of this, of course, would pass a judicial challenge.
The Legislature referred to the 2014 state ballot an initiative similar to the bill Finchem has proposed this year, and we passed it by 51 percent to 49 percent. Proposition 122 amended the state Constitution to give Arizona voters and the Legislature the power to overturn any unconstitutional federal-government act through initiatives or bills.
Who determines what’s unconstitutional? Well, that’s an open question, much as in Finchem’s bill, which contains no language to explain who are the arbiters as to which executive order, federal policy or Supreme Court opinion violates the Constitution. Finchem told me he’s willing to hear suggested amendments, but that the state House might be the best judge because of its power of the purse.
Finchem, by the way, is a retired police officer from Michigan and a member of the Oath Keepers, a group of current and former military members, police officers and first responders dedicated to upholding their view of the Constitution, especially protection of the right to firearms. Among its list of “orders we will not obey” is:
“We will NOT obey orders to invade and subjugate any state that asserts its sovereignty and declares the national government to be in violation of the compact by which that state entered the Union.”
Who decides what is invasion or subjugation? Again, who knows — maybe the Oath Keepers board? These self-described constitutionalists all have their own ideas but ignore the obvious — we already have a judicial system that grapples with questions of constitutionality every day.
The courts are the home of the rule of law. Whether you’re in Oregon or Arizona, when those rulings go against you, it doesn’t give you the right to take up arms against the entire federal system or improvise your way out of it.
