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Missouri Lawmaker Proposes Amendment to Reject U.S. Laws

By Booth Gunter on April 18, 2012 - 4:12 pm, Posted in Antigovernment

The antigovernment “Patriot” movement is big on the U.S. Constitution. Except when it’s not.

For some reason, the far-right politicians who identify with and promote the Patriot movement can’t seem to get over the fact that the Constitution gives the federal government primacy over the states – even as they wrap themselves in the American flag. It’s a contradiction that, apparently, only antigovernment extremists can understand. Others, who study such things, call it cognitive dissonance.

Thumbing your nose at the federal government has a long history in American politics, of course. George Wallace ran an entire presidential campaign on it in 1968 – five years after he made a big show of “standing in the schoolhouse door” to block the entry of black students at the University of Alabama. Perhaps he was still peeved about being pushed out of that doorway by President John F. Kennedy and the National Guard.

Even today, a lot of Southern politicians remain upset at the federal government over that little thing called the civil rights movement, though most of them try to cloak their extremism in the rhetoric of “states’ rights.”

But, come on, haven’t we settled this question – after two centuries of jurisprudence, not to mention a bloody civil war that wrecked the South and cost more than 1 million American lives?

Nope. At least Missouri state Sen. Brian Nieves doesn’t think so.

Nieves has proposed an amendment to his state’s constitution that would prohibit all branches of state government in Missouri from recognizing, enforcing or acting on “certain actions” of the federal government. It’s called “nullification” – the idea that states can simply ignore federal laws they don’t like – and it’s all the rage on the radical right, pushed by the likes of the John Birch Society and the Tenth Amendment Center.

What’s astounding is the traction the idea is getting among people who ought to know better. Nieves’ amendment, which would have to be approved by Missouri voters, is still alive in the legislature four months after it was proposed. It’s even been approved by the Senate’s General Laws Committee.

Nieves, a Tea Party favorite who has described himself as a “Patriot candidate” and who has appeared in a film produced by Patriot conspiracy-monger Gary Franchi, is nothing if not extreme. He’s previously shown his disdain for the Constitution as a leading member of State Legislators for Legal Immigration, a group of state lawmakers that is working to end the 14th Amendment’s guarantee of citizenship to all people born within the United States. Apparently, the 14th amendment, enacted in the wake of the Civil War, really bugs him.

Nieves is also, apparently, something of a bully. In August 2010, after winning the Senate primary, he pulled a gun on a man who worked for his opponent’s campaign. According to news accounts, he threw the man against the wall, threatened to kill him, head-butted him, slapped him and asked if he was wearing a “wire.” Then he made the man call his [Nieves’] wife and apologize for things that happened during the campaign.

His proposed amendment goes much further that some other nullification efforts. It specifies a laundry list of specific actions that Missouri would be required to reject: any federal actions to “restrict the right to bear arms; legalize or fund abortions, or the destruction of any embryo from the zygote stage; require the sale or trade of carbon credits or impose a tax on the release of carbon emissions; involve certain health care issues; mandate the recognition of same sex marriage or civil unions; increase the punishment for a crime based on perpetrator’s thoughts or designate a crime a hate crime; interpret the establishment clause as creating a wall of separation between church and state; or restrict the right of parents or guardians to home school or enroll their children in a private or parochial school or restrict school curriculum.

The forbidden federal actions presumably include any federal court orders, even when they come from the Supreme Court.

So, in other words, it’s not really about preserving the legitimate rights of states under the Constitution. It’s simply a subterfuge to reject federal laws that aren’t conservative enough – even when they have been enacted by duly elected representatives of the people or interpreted by the very judicial body created by the Constitution to determine their constitutionality.

What Nieves really is rejecting is democracy itself – and the U.S. Constitution. Funny thing for a Patriot.

  • yeah

    I said “obviously the legal consensus is that nullification is illegal”, so hopefully at that point you understood I wasn’t making a legal argument, and that its necessary to distinguish between “nullification” as a legal concept, and nullification as a moral principle. E.g. We can talk about the MORALITY of, say, affirmative action (AA), versus the LEGALITY of AA, and these 2 constructs are completely separate and distinct. Just as someone can think AA is LEGALLY permissible but IMMORAL, I’ve argued here that nullification is ILLEGAL, but can be MORAL, and this non-trivial distinction is ignored by the author of this article as he paints the 10th amendment as exclusively color of law bigot protection.
    To say, as I did, that a state has a MORAL right to invalidate federal law (when doing so increases freedom) is completely different from claiming that a state has the LEGAL right to invalidate federal law. When you make legal arguments against my moral claims, its like arguing that transporting your slave from GA to VT is wrong because slavery is illegal in VT. If you still don’t understand this distinction, contrast the wiki articles for “natural rights” (which is a moral category) and “legal rights” (which is a legal category). Your definition of nullification, “claiming that there is no law to test and/or no lawful jurisdiction to test it and… defying it outside the legal process” is so narrow that it excludes the 1st instance of nullification in US history: the KY and VA Resolutions. That’s “resolutions”, as in “things passed by state legislatures” (just like the CA pot laws). That isn’t “outside the legal process”, nor does it represent a claim “that there is no… lawful jurisdiction to test [a federal law]“, rather, it represents a claim that jurisdiction over federal law resides in the state’s legislature. Even though your definition fails, to be clear, I’ve said repeatedly that nullification of this kind is considered legally invalid, but my point is that, despite the author’s claims, nullification is not unambiguously IMMORAL. You imply that I said that “testing the constitutionality of a law through the courts…[is] nullification”. In fact, I anticipated this argument when I said “litigational opposition.. is neither… a necessary nor sufficient condition for an act to qualify as ‘nullification’”.
    If you want to question my definitions, OK, but to claim I failed to define my terms is just false. I defined “nullification” in both posts, but instead of arguing against my definition, you claim that I failed to define my terms and gave your own (demonstrably insufficient) definition.
    Someone is conflating terms around here, but its not me, and I stand by my contentions: 1) nullification can be morally justifiable under certain conditions, and is not, as the author seems to think, a categorically racist/conservative/immoral idea and 2) the author cherry picked instances of nullification to make it seem absolutely morally wrong and ridiculous, ignoring examples like CA pot decrim. which is, in both spirit and practical application, a morally good instance of nullification (though, as I have said, may procedurally/legally be excluded under some narrow LEGAL definitions of “nullification”).

  • Reynardine

    Yeah, you have done a confabulous job of muddling issues, because you are incapable of distinguishing them. Testing the constitutionality of a law through the courts and seeking injunctive relief pending a decision is not nullification exactly because it is lawful. Nullification is claiming that there is no law to test and/or no lawful jurisdiction to test it under, and consequently obstructing, ignoring, or defying it outside the legal process. It’s exactly a legal distinction, and those who can’t learn it had better look good in orange.

  • yeah

    Litigational opposition, Armed opposition, physical obstruction and secession are not necessary nor sufficient conditions for the action of a state to qualify as “nullification”. Are you implying that I advocated any of these things? Are you suggesting that since the CA pot decrim. measures haven’t included these things that they don’t qualify as a form of nullification? Consider the wiki definition of “nullification” – “the theory that a State has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional”. CA has in, in practical terms, invalidated federal law with their pot policies. Since I wrote about moral and not legal questions, quibbling about the procedure by which these laws were invalidated (e.g. through legislation vs. litigation vs. insurrection) misses the point. I intentionally avoided the kind of procedural/legal argument you’re making; in fact I specifically said I wasn’t concerned about legal correctness, but rather moral rightness: “These arguments about the legality of nullification miss the point; obviously the legal consensus is that nullification is illegal, but the CA pot example shows that nullification still happens despite this. The question is: is nullification ever morally defensible, or does it just provide cover for racist laws?” I argued that under the accepted definition, nullification can be MORALLY justified and has been used to advance moral goals; your reply didn’t address why or why not nullification may be morally justifiable, it just made claims about how nullification has and has not come about procedurally/legally. The point of my “screed” was to defend Truth’s posts – which contained very little to which even an average civil libertarian progressive would object – from the numerous unanswered criticisms on here. When the author of this article implied that the only reason someone would advocate nullification would be to provide legal cover for racism, they demonstrated either gross ignorance or intentional misrepresentation, and I wanted to point out (as did Truth) that nullification is not as morally or historically unambiguous as the author wants it to seem.

  • Reynardine

    I am not sure where Yeah’s screed is headed, but the decriminalization of medical pot in certain states means: (1) the state sovereign will no longer prosecute the medical use of marijuana in the state courts; (2) the federal sovereign is still free to do so in its courts. No such state has physically opposed the exercise of federal jurisdiction, even when it has done so through litigation. Litigational opposition is a lawful and time-honored method of testing federal authority. Armed opposition, physical obstruction of justice, and secession are not. They are federal felonies, sometimes sedition, and, if grave enough, treason. That is the difference.

  • yeah

    @ruslan “Jefferson had no problem with a handful of white men owning thousands of slaves.” And THIS logical fallacy is known as “ad hominem”; the hypocrisy of a speaker doesn’t invalidate their argument. Its amusing the author mentions the “long history” of nullification and then starts his list in 1968. Nullification is not an inherently bigoted or even necessarily right-wing idea. Truth is right to mention that liberal gov’ts in California have nullified federal pot prohibitions, and the federal raids continue there despite overwhelming local opposition. Who thinks it is a good, moral idea for the federal gov’t to enforce prohibitions on victimless crimes that the residents of a state have explicitly repudiated? I don’t mean legally correct, I mean morally right. These arguments about the legality of nullification miss the point; obviously the legal consensus is that nullification is illegal, but the CA pot example shows that nullification still happens despite this. The question is: is nullification ever morally defensible, or does it just provide cover for racist laws? I think its clear that in some cases, like the Fugitive Slave Act, nullification is morally right and increases freedom. In fact, I would say that supporting nullification is morally justifiable if and only if it increases freedom for all of a state’s residents, and its a mistake for the author to act like the 10th amendment exists solely to give “color of law” protection to bigots.
    @CM “Nullification… enables the chronically disgruntled to have their way without the consent of the rest of us, so it is inherently anti-democracy”. Why should voters in Colorado have to receive consent from Idaho’s senators if they want to decriminalize pot possession? Again, I mean morally, not legally. Imagine that you had voted differently in every election you’ve ever voted in; if you voted for Gore in 2000, imagine you had instead voted for Bush, McCain instead of Obama, etc. How would your life be different? The answer is it wouldn’t be different at all, because 1 vote has never decided an election. Voting does not = consent. Only about half of eligible voters actually vote. Of that half, only about 50.7% voted for Bush in 04. So a MO senator could receive 25% of possible votes in his state, vote to criminalize pot in NY despite NY’s objections, and if 50 other senators agree (and the house passes and its signed), that makes it OK to lock NYers in cages for breaking a law they opposed? What about elections in other states where you can’t possibly influence the outcome, but which could have drastic effects on your life? When did I, or anyone, consent to laws they pass? Consent implies a choice; when, exactly, was I presented with the option not to consent? Have you ever known anyone who has tried to renounce their citizenship? Its practically impossible. As is so often the case on this site, the writer would rather spout glib, ahistorical, party-line pro-wrestling conventional wisdom than delve into the murky reality of controversial ideas where things aren’t 100% good or bad.

  • Reynardine

    I note I got a couple of these Emmenthalers confounded: possibly the same one writing under more than one name, or because it’s rare to find more than one at a time who kin reed an spel gud.

  • Ruslan Amirkhanov

    If your “work” was complete and utter failure, then yes. And not soon enough did it end.

  • Truth

    My work here is done :)

  • Reynardine

    Ruslan, I notice it not so much as irony as one of the more disgusting facts of American history.

  • Ruslan Amirkhanov

    Also am I the only one who notices the irony of trying to use the Fugitive Slave Act as a justification for nullification(slavery at the time was legal according to the US Constitution), while at the same time quoting the same people who either owned slaves or protected the rights of slave owners?

  • Reynardine

    By the way, little Rebecca has been seen elsewhere.

    Rebecca, your arguments are only that: arguments, in the sense of quarrels. Far from being well-thought out, they’re preconceived talking points. You find them “irrefutable” simply by refusing to hear anything that contradicts them.

    Hitler was never democratically elected, and in the last free election, his party was losing ground. He assumed the Chancellorship through a backroom deal brokered by Schleicher. After that, all he needed was Hindenburg dying and a most convenient Reichstag fire. He was so grateful to Schleicher he murdered him a year later.

    I reiterate: there are many despotisms on earth. If you hate “democracy” so much, go there, and quit pumping for oligarchic tyranny here.

  • Ruslan Amirkhanov

    “Hitler was elected democratically,”

    Incorrect. Congratulations, you failed 20th century history and you don’t know how European governments work. Hitler was not elected at all.

    “so to defend “democracy” like its infallible is a bit silly and naive – to say the least.”

    You know what’s also “silly and naive”? Using straw-man arguments. Nobody is claiming democracy(a term with many interpretations) is infallible.

    ” If you don’t like the pledge, how about the Constitution itself?”

    It’s not that folks here don’t “like” the pledge(typical backward conservative thinking), but the pledge has f-all to do with the US government. If you mention the Constitution at least you’re referring to an actual body of law that can be traced to the beginning of the United States.

    ” Where do you find the word democracy? The word Republic, and Republican, is found throughout.”

    Again, a republic is a form of democracy. http://en.wikipedia.org/wiki/C....._democracy

    Second, show me where the Constitution says you have the right to own a gun? 2nd Amendment? Nope, it says you have the right to bear arms. I guess that means that the Federal government can ban all firearms while still granting you the right to wear swords on your hip.

    “Here is what our Founding Fathers (the people who created the Constitution) thought about democracy:

    John Adams: Democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide.”

    This logical fallacy is known as appeal to authority.

    “Thomas Jefferson: A democracy is nothing more than mob rule, where 51% of the people may take away the rights of the other 49%.”

    Jefferson had no problem with a handful of white men owning thousands of slaves.

    ” If Congress passed and the president signed a “law” purporting to force state governments to censor newspapers, would states be justified in refusing? A simple yes or no will do.”

    They couldn’t pass that law because it would violate the US Constitution.

    “By the way, I find the infantile attacks that completely avoid addressing my well-thought out argument to be amusing. ”

    So when people demonstrate how laughably ignorant you are, you just laugh. Ok.

  • Ruslan Amirkhanov

    “Did everybody here skip middle school civics or has our education system truly failed so miserably? First of all, America is a REPUBLIC, not a democracy. (I pledge allegiance … to the REPUBLIC ….) ”

    Others have correctly poijnted out your idiocy for invoking the Pledge of Allegiance as though it were some kind of founding document, so I will only add a couple things:

    -The Pledge of Allegiance and the acompanying ritual was designed by a Christian Socialist.

    A REPUBLIC is a form of DEMOCRACY, under the comonly accepted definition.

    “The Founding Fathers abhorred democracy – and for good reason.”

    Yes, for a very good reason- they didn’t see landless workers, women, or black people as actual people. Hence they didn’t want to give them franchise. Good thing our country evolved from that stage, huh?

    “A democracy is simply mob rule (think gang rape or lynchings). ”

    Hmm…I think I’ll think “moron”. The Paris Commune of 1871 was probably the most democratic modern society ever created, and far from being full of gang rape and lynch mobs, it was more secure than Paris under bourgeois rule. The only raping and lynching came as the French government forces(commanded from Versailles) who crushed the Commune, murdering as many as 40,000 civilians.

    Your comments about “mob rule” are typical of fascists. You praise the Constitution and Freedom on one hand, but you despise your fellow Americans and find them unfit to make the decisions which affect their own lives. Rather ironic, considering that little Pledge of Allegiance canard.

  • Truth

    Hitler was elected democratically, so to defend “democracy” like its infallible is a bit silly and naive – to say the least. If you don’t like the pledge, how about the Constitution itself? Where do you find the word democracy? The word Republic, and Republican, is found throughout.

    Here is what our Founding Fathers (the people who created the Constitution) thought about democracy:

    John Adams: Democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide.

    Thomas Jefferson: A democracy is nothing more than mob rule, where 51% of the people may take away the rights of the other 49%.

    James Madison: Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their death.

    John Quincy Adams: The experience of all former ages had shown that of all human governments, democracy was the most unstable, fluctuating and short-lived.
    ——-

    Now, think this through folks. Since nobody will answer my question about Wisconsin and the fugitive slave act, let’s try another. If Congress passed and the president signed a “law” purporting to force state governments to censor newspapers, would states be justified in refusing? A simple yes or no will do.

    The Constitution is a binding contract. If the federal government violates it (by, for example, restricting free speech), states have a duty to protect their citizens from a rogue entity acting under color of law outside of its rightful power.

    By the way, I find the infantile attacks that completely avoid addressing my well-thought out argument to be amusing. Keep it up – it’s clear to anybody reading who is in the right here :) This article is blatant deception and its author either knows and is a liar or is so ignorant that he should laughed out of the room. I’m still waiting for a correction and apology for this absurd piece.

  • Sam Molloy

    CM, Athens was a Democracy. This is a Republic. That is why the civil Rights Act was passed, when a majority of bumpkin America would have voted against it. They might still vote against it.

  • ModerateMike

    Lewis,

    Where have you been in the last 4 years? Though I myself am bitter about it, here is some happy news for you: Approximately 786,000 people have been ejected from the U.S. in the last 2 years alone. Even Roy Beck of NumbersUSA has praised Obama for the number of immigrants who have been deported during his administration.

    Also, I take it that you have not heard of E-Verify, nor the Secure Communities initiative, nor that the number of Border Patrol officers has quintupled since 1993 (http://www.cbp.gov/linkhandler....._92_11.pdf).

    I take it that federal immigration laws have not yet made it to Nieves’ short list for nullification.