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Guest O pinion
Jay Jackson
Imagine some law or policy you find reprehensible. (No really, take a second and do it. We have time.)
Unfortunately, our own nation’s history offers plenty of examples. There’s forced sterilization during the eugenics craze of the early 20th century, leading to U.S. Supreme Court Justice Oliver Wendell Holmes Jr.’s shocking conclusion that “Instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind…. Three generations of imbeciles are enough.”
Or consider the dehumanization of Black soldiers who signed up to fight for their country. Did you know Jackie Robinson was court-martialed in 1944 for refusing to move to the back of a military bus?
Surely if Nebraska Secretary of State Bob Evnen and Attorney General Mike Hilgers were charged with executing or overseeing similarly unjust and unconstitutional laws or policies, they would refuse, right? Without waiting months for the Nebraska Supreme Court to tell them what to do?
And we would all support that? Right? Maybe not. That’s why the Supreme Court’s recent decision in State Ex Rel. Spung v. Evnen is so confounding, as is the widespread progressive applause that accompanied it.
In short, the court decided that Evnen “was wrong to stop registering voters under a new state law eliminating the two-year wait for people who have served a sentence for a felony conviction.” Justice Lindsey Miller-Lerman asked rhetorically whether “we want to live in a world where every state employee who has a hunch a statute is flawed gets to ignore it?”
Hunch? Flawed? Perhaps the better question is whether we want to live in a world where statutes which are probably unconstitutional (regardless of the ultimate policy outcome) must, at least initially, be blindly carried out by the executive branch. We know there is more than a “hunch” of unconstitutionality here because not even the full court could agree on that ultimate issue. Indeed, one dissenting justice plainly opined that the Legislature “usurped the executive branch’s exclusive pardoning power” and proposed that the correct course of action would be to “[initiate] the referendum process to amend article VI of the Nebraska Constitution as other states have done.”
In my days as an active-duty military lawyer, I provided training on the law of war. That included the principle that, under international law, “I was just following orders” — the defense of many Nazi German defendants during the Nuremberg trials — is no excuse for the commission of war crimes. I think it would be wonderful if our secretary of state and attorney general were stripped of that excuse as well. If we can trust 18-year-old soldiers with discretion to act lawfully within the confines of their duties, we ought to be able to trust our elected officials to do the same . After all, it can take many months (and 90 pages) for the Nebraska Supreme Court to tell us what it thinks about the constitutionality of any particular law.
God forbid that someday — in a fit of fear, power or prejudice — our Legislature should pass some heinous law of blatant unconstitutionality. Will we tolerate the secretary of state and attorney general turning a blind eye, shrugging their shoulders and putting the law into immediate practice until such time as the Supreme Court can consider it?
With this recent ruling, that’s exactly what they have been directed to do.
Jay Jackson is an Omaha attorney and author of “Decent Discourse: Saving Your Country by Loving Your (Wrong?) Neighbor.” He received his law degree from George Mason University School of Law
