The Putnam executive wants a declaration. Where did the idea come from?
Two months into the job, Kevin Byrne, the new Putnam County executive, proposed that the Legislature declare his domain to be a “constitutional county.”
What does that mean? Are there unconstitutional counties?
Byrne was inspired by (and took language from) a resolution passed in 2021 by lawmakers in Cattaraugus County in western New York. Other counties have made similar declarations, including York in Virginia, Brown in Texas and Lyon in Nevada. Some have rejected the idea, including Mesa in Colorado, Bremer in Iowa and Yates in New York.
In Putnam, Byrne’s proposal has two elements.
First, Putnam legislators would vow “to protect the rights” provided to citizens by the Constitution — which doesn’t sound any different from the oath of office.
Second, the draft resolution acknowledges that while the Legislature cannot “unilaterally nullify federal or state laws it opposes” (thank goodness), it will oppose “any efforts to unconstitutionally restrict such rights in order to assure that its citizens will be able to keep and bear arms.”
So, it’s about gun control. One amendment.
The difficulty is that, as even a Florida textbook will tell you, our constitutional system is designed so that the courts decide if laws are unconstitutional. That’s how the Founding Fathers set it up: legislative, judicial, executive. Byrne acknowledges this — somewhat — with a disclaimer that no laws will be broken when Putnam legislators interpret the Constitution.
It’s worthwhile to examine the origins of the notion of the constitutional county — or, properly, Constitutional CountyTM, according to a Montana resident named Kirk MacKenzie, who claims he invented the idea and trademarked the name.
MacKenzie is an interesting character. According to his blog posts and podcasts, he is still working hard more than two years later to uncover (at the county level) the supposed fraud in 2020 that denied Donald Trump a second term. He is an enthusiastic spreader of nonsense about the COVID-19 vaccines, such as that they are “untested DNA-changing biologic agents” and “bioweapons researched and funded by Dr. Fauci.” He fears “international banking families [read: Jews] and their use of control over monetary systems to control the world.” He created a group called Defend Rural America to battle “environmental terrorism,” “abusive agencies,” the Endangered Species Act, “federal takeover of public lands” and “road closures.”
MacKenzie, who sells a $25 DVD that outlines the constitutional county concept, asserts that the Constitution is “timeless and cannot be changed by construction” (although it has been, 27 times). At the same time, he says, county elected officials have the right to declare any law they deem “repugnant to the Constitution” as null and void. A dueling fringe group, the Constitutional Sheriffs and Peace Officers Association, asserts that county sheriffs have the final say.
In Putnam, Byrne’s goals don’t seem as ambitious; he insists his proposal “is not part of any separate organized effort or movement.” In November 2021, he wrote in an op-ed in The Examiner News that he primarily wants a constitutional county declaration to stand up to “radical gun-grabbing special interests.” He added: “It’s not enough to simply raise our right hand and take the oath of office where we swear to uphold the Constitution.” You also need to pass a resolution.
There is at least one point in the Editor’s Notebook on the proposal to make Putnam a “constitutional county” that should be clarified. Kirk MacKenzie, who claims he invented the concept, has stated that the Constitution cannot be changed by “construction,” to which Chip Rowe parenthetically comments, “although it has been 27 times.” That implies that the Constitution has been changed by “construction” these 27 times, which is incorrect.
The Constitution has been amended 27 times. Construction refers to the terms “strict constructionalism,” or a rigid interpretation of the Constitution as it was intended by the Founders, as opposed to “loose constructionalism,” or a liberal interpretation of the Constitution. As an example, loose construction considers flag burning “symbolic speech” protected by the First Amendment; strict constructionalism considers flag burning a federal crime.
The amending processes for the Constitution are enumerated in Article V; construction, or constructionalism as a doctrine, is more a political philosophy expressed through the judicial system. So MacKenzie may be correct in stating that the Constitution may not be changed by construction, although it is interpreted by construction.
Rowe states: “So it’s about gun control. One amendment.” Perhaps so, for today, because the most recent defiance of the Constitution and the U.S. Supreme Court by Albany concerns the Second Amendment. However, over the past three years, state and national executive orders have essentially violated just about every right we have that is protected by Article I, and a bit of local noncompliance and non-enforcement of those might have been welcomed, especially by a free press. The current practice of the “sanctuary city” or “sanctuary state” is another example of flouting law by a polity as form of doctrine. These “sanctuaries” are an absurd doctrine with absolutely no positive benefit to any other than criminals.
Another correction is needed for a letter that stated Putnam County Executive Kevin Byrne intends to revive the doctrine of nullification. Byrne’s idea is not nullification, but lack of enforcement or compliance with laws that are in clear opposition to the Constitution and Supreme Court interpretation. In fact, if you examine Albany’s response to New York State Rifle & Pistol Association Inc. v. Bruen, one has to wonder: At which level of state government is the resurrection of the failed doctrine of nullification being attempted, county or state?
There is precedent for non-enforcement of laws that stand in obvious disregard of the Constitution or lawful court orders, and there is significant danger to it, as well. One example would be civil disobedience during the Civil Rights protests of the 1950s and ’60s. Another excellent example happened during a class I attended on the legality of orders while I was a military officer. We were taught that we had the right — in fact, a duty — to disobey an order that stood in opposition to the Uniform Code of Military Justice or the Constitution. However, it came with the caveat: “You’d better be damned certain you’re right.”
Great paper! I’m sitting in Big Mouth Coffee after a very good lunch at Meyer’s Old Dutch. Visiting from Yorktown. So Mr. Mackenzie is still, two years on, searching for the fraud that stole the election from Donald Trump! Maybe once that’s done he could take up the search for the killer of Nicole Simpson.
Constitutional County – bad idea. Who wants to get shot by a “constitutional carrier” first?