Upending the Constitution: Outlandish Laws Proposed by State Legislatures
Illustration by Anthony Freda
In March, the Arizona State Senate passed a law that cut, in dramatic fashion, to the heart of a long-running debate in American history: What is the proper power dynamic between the states and the federal center? In the extremist style that has come to typify Arizona's state legislature under the influence of Republican Senate President Russell Pearce, S.B. 1433 came down with force on the side of "states' rights." The bill proposed nothing less than the creation of a 12-person body tasked with studying federal laws and nullifying any and all of those it deemed unconstitutional.
In essence, it was an attempted declaration of independence from Washington and a direct challenge to the United States Constitution, which explicitly states that laws made by the federal government and backed by the Supreme Court are "supreme."
S.B. 1433, which ultimately did not make it out of the Senate, was not the only bill of its kind to bubble up in legislatures across the country in the wake of the 2010 midterms. It exemplified a spate of challenges to federal power that illustrate how the Tea Party-fueled GOP surge of 2010 is a story playing out in every corner of the country. From Appalachia to Alaska, state lawmakers have introduced bills that challenge the authority of the federal government to execute powers granted by the Constitution. These bills target all three branches of federal power, often in language that reveals the influence of radical-right ideologues from bygone times. While the sponsors of the bills routinely point to last year's health care reform bill as the impetus for their legislation, the scope of their targets manifest a deep and longstanding animus against most of the landmark federal legislation of the modern era—from environmental protection, to reproductive rights, to the very idea of state-backed paper currency. Consider:
Virginia lawmakers have proposed the creation of an independent state currency, premised on "the destruction of the Federal Reserve System."
In Georgia, another currency bill would require banks to accept gold or silver as legal tender, thus overriding federal monetary regulations.
A group of Kentucky Republicans introduced a law exempting the state from the jurisdiction of the Environmental Protection Agency. Montana's "Sheriffs First Act," would give local sheriff's veto power over any federal law enforcement activity in their counties; those who failed to comply would face jail.
So-called "birther bills"—inspired by far-right suspicions about President Obama's country of birth and requiring new proofs of citizenship for candidates—have been introduced in a dozen states, including the moderate New England state of Maine.
Many of these same states have also seen the introduction of harsh immigration bills modeled on Arizona's controversial S.B. 1070, which has been held up in the courts since the Obama Administration's Department of Justice sued to stop its enforcement last year.
Experts doubt the current bills will have much practical impact or leave a long-term legacy.
"These bills are nothing but symbolic grandstanding for conservative constituents," says Erwin Chemerinksy, dean of the Law School at the University of California at Irvine. "States cannot violate federal law or authorize the violation of federal law. The laws are clearly unconstitutional, but that does not keep conservative politicians from introducing them."
The bible for many of the Republican legislators sponsoring states'-rights bills is Thomas Woods' Nullification: How to End Federal Tyranny in the 21st Century. Among Woods' main sources is the 1957 states' rights manifesto, The Sovereign States: Notes of a Citizen of Virginia, by James L. Kilkpatrick, a chief ideologist of southern resistance during the civil rights movement.
"The ideology behind these new bills comes directly out of resistance to civil rights legislation in the 1950s," says Garrett Epps, a professor of constitutional law at the University of Baltimore School of Law. "They claim it goes all the way back to Jefferson, but it's really grounded in the resistance to the federal enforcement of civil rights. I expect that to be the next wave of bills—to nullify the Americans with Disabilities Act or the Civil Rights Act of 1964. This is lunatic fringe stuff that's coming out of the shadows at a moment when people see an opportunity to take us back to the 1950s."
In some cases, the sponsors of these bills have ties to extremist groups. Russell Pearce, the main sponsor of Arizona's S.B. 1070 and S.B. 1433 laws, has been a friend of neo-Nazi activist J.T. Ready, who is a former member of the National Socialist Movement. Georgia's State Rep. Bobby Franklin, sponsor of a bill that would reject the authority of the Supreme Court and essentially criminalize all abortions and even miscarriages, is a member of the Chalcedon Presbyterian Church, which is part the Christian Reconstructionist movement that seeks to impose draconian Old Testament law on the United States.
Lunatic fringe or not, the activists pushing these bills are often well organized. The driving force behind Utah's bill targeting Washington's power of eminent domain is a group called the Patrick Henry Caucus. With the help of allies like the archconservative Eagle Forum, the caucus has all but taken over the state GOP. Through events such as last year's Tenth Amendment Summit in Atlanta, it has established working contacts with state legislators in 30 states, from North Dakota to New York. The summit, organized by then-Georgia gubernatorial candidate Ray McBerry and the Tenth Amendment Center, was enthusiastically promoted by the far-right John Birch Society and the antigovernment Patriot Action Network.
As reported by the Birchers' New American magazine, participants agreed that the federal government is unconstitutionally seizing powers belonging to the states and the people. The answer, it suggested, was "through state nullification of unconstitutional federal laws." In addition to McBerry, speakers included Judge Andrew Napolitano, a far-right Fox News personality, and Roy Moore, the former Alabama chief justice who was thrown out of his job for defying federal court rulings against his placing of a Ten Commandment monument in the rotunda of his courthouse.
"The goal has always been to organize states' sovereignty activists nationwide," says Stephen E. Sandstrom, a Utah state representative and founding member of the Patrick Henry Caucus. "If we only fought health care and gun laws here in Utah, people would just dismiss us as, 'Oh, that's just right-wing Utah.' But if we get it done nationally, coordinating with like-minded people across the spectrum, we can truly have a huge impact."
What follows are state-by-state looks at some of the more outlandish proposals emanating from legislators in 15 states since last November. The status in the legislative process of many may have changed since press time.
Arizona S.B. 1495
Arizona is the state most Americans think of first when it comes to controversial state laws. For this distinction, the state can thank S.B. 1070, which last year all but mandated racial profiling and provided a template for state lawmakers around the country to whom enforcement-only immigration law appeals.
Republican lawmakers in the Copper State have not been resting on their laurels. Under the leadership of State Sen. Russell Pearce, they have since introduced a slew of other immigration-related bills, including S.B. 1405, which would require proof of citizenship before receiving treatment in the state's emergency rooms. Lawmakers have also passed S.B. 1610, which designates the Colt single-action army revolver the official state firearm. Perhaps the most drastic of the proposed legislation is S.B. 1178, which would make all services performed in state and all goods grown or made for consumption in Arizona "not subject to the authority of Congress under its constitutional power to regulate commerce among the several states."
Even more sweeping is S.B. 1433, which would create a 12-person "Joint Legislative Committee on Nullification of Federal Laws" to "recommend, propose and call for a vote by simple majority to nullify in its entirety a specific federal law or regulation that is outside the scope of the powers delegated by the People to the federal government in the United States Constitution." State Sen. Sylvia Allen introduced S.B. 1495 giving the governor the power to establish a "state guard" independent of the National Guard. Under the law, the governor could create this new force for "any reason the governor considers to be necessary."
Republican lawmakers in the Natural State crafted H.B. 1292 "to prohibit illegal aliens from receiving any state benefit except in instances of emergency or when life-saving measures are required."
The bill has enjoyed the support of activists with the hard-right nativist group Secure Arkansas, an organization whose director, Jeannie Burlsworth, is on record describing a water conservation bill as a ruse to "[turn] America from a Republic into a Fascist, Communist order [that] will enable the globalist water masters to start working towards achieving centralized World Bank objectives which will severely limit our individual water use." While not as extreme as many bills making their way through state legislatures, it signifies a lurch rightward for a state dependent on undocumented workers for key industries such as industrial poultry farming.
Colorado Republicans introduced S.B. 54 to allow police to make warrantless arrests of those it suspected of being in the country illegally. H.B. 1088 would require a court to consider (before setting bail) any "information" provided by the district attorney, a pretrial services agency or a law enforcement agency that suggests there are "reasonable grounds" to believe a defendant is an illegal immigrant. The bill would also require a law enforcement agency to tell both the DA and pretrial services agencies if there are "reasonable grounds" to believe a person is an illegal immigrant.
State Rep. Bobby Franklin — the self-described "conscience of the Republican Caucus" — made national headlines when he introduced H.B. 1. The bill would require women who have had miscarriages to provide evidence that they were not "at fault." Those who could not do this would be subject to criminal investigations by the state.
The foundation for the bill is Franklin's belief that the Supreme Court had no jurisdiction to hear Roe v. Wade, the 1973 case that legalized many abortions. Franklin's bill states: "The State of Georgia has the duty to protect all innocent life from the moment of conception until natural death. We know that life begins at conception." In the past, Franklin has expressed the view that the state has no authority to issue driver's licenses or teach children.
On the immigration front, State Rep. Matt Ramsey introduced H.B. 87, known locally as the "Show Me Your Papers" law. It would require state and local law enforcement officers to investigate the immigration status of all individuals they "reasonably suspect" of being in the country illegally. H.B. 72 would eliminate the ability to take the permanent driver license exam in a language other than English.
Finally, H.B. 401 is among the most ambitious of the "birther bills" popping up around the country. It would give any registered voter a two-week window to challenge a candidate's bona fides, even after the Georgia secretary of state certifies a candidate as native-born.
Republican state senators introduced S.B. 99 to make their state a "sanctuary" from meddling by the U.S. Environmental Protection Agency. State Sen. Joe Bowen introduced a bill that would allow public schools to host classes about the Bible.
Republican legislators associated with the Tea Party in the Treasure State have been giving their counterparts in Arizona a run for their money. Within weeks of the opening of the new session, members of the House and Senate introduced a number of bills designed to nullify various pieces of landmark federal legislation. One targets the Endangered Species Act, which the right sees as inhibiting extraction industries operating in state. Another would make county sheriffs the supreme authority.
But these legislators' respect for local sovereignty is not endless. The same bloc of lawmakers has introduced bills to smack down locally approved ordinances on marijuana and protections for gay people.
State Sen. Mark Christensen's L.B. 232 represents one of the most extreme pieces of anti-abortion legislation in memory. The bill would allow a mother or another person to use force — including deadly force — to "protect a fetus." While it was supported by anti-abortion groups such as Americans United for Life and Family First, fears that it would increase the threat of, and possibly sanction, violence against abortion providers led local law enforcement officials to join the ACLU and Planned Parenthood in speaking up against it.
Christensen is known for introducing controversial legislation. He is also the force behind recently proposed laws that would allow teachers to carry concealed weapons on school grounds; require presidential and vice presidential candidates to provide a "certified copy" of their "original long-form" birth certificates in order to be listed on the ballot; and prohibit Nebraska's courts from citing Islamic religious, or Shariah, law in their rulings.
Republican State Rep. Daniel Itse introduced H.B. 343 to create a volunteer "permanent state defense force," separate from the New Hampshire National Guard, "to defend this state from invasion, rebellion, disaster, insurrection, riot, breach of the peace or imminent danger thereof, or to maintain the organized militia." The legislation would require Gov. John Lynch to establish a state guard comprised of an undetermined number of volunteers who sign up for one-year stints. It would have an "inactive reserve" made up of all able-bodied adult state residents, with exemptions for conscientious objectors, state and federal officials and others.
Itse is a natural sponsor for such a bill. In February 2009, he said that the state of New Hampshire need not comply with federal legislation, citing Thomas Jefferson's Kentucky Resolutions.
State Rep. Lynn Wachtmann introduced H.B. 125 to ban abortion as soon as a fetal heartbeat could be detected—before many even know they are pregnant.
Republican lawmakers in the Sooner State have proposed nearly 30 bills dealing with various aspects of immigration. Two-thirds of them have come from the offices of State Rep. Randy Terrill, a member of the hard-line State Legislators for Legal Immigration, and State Sen. Ralph Shortey, a member of a newly set up joint immigration reform committee. The bills would crack down on undocumented residents of the state in numerous ways, ranging from restricting property rights of noncitizens to requiring school officials know the legal status of students.
The "Interstate Compact for Birth Certificates Act" is a direct challenge to the birthright clause 14th Amendment. Several bills require schools to identify undocumented students; one would allow school districts to charge students not lawfully present in the country, while others would prohibit them from resident tuition. With words echoing the Arizona immigration law enacted last year, one piece of legislation would allow law enforcement with "reasonable suspicion that a person is an alien" to "determine the person's immigration status."
State Sen. Lee Bright introduced legislation that backs the creation of an "alternative" currency for the Palmetto State. The currency to be created by S.B. 500 is predicated on the expectation of a breakdown of the Federal Reserve System. According to Bright's bill, "many widely recognized experts predict the inevitable destruction of the Federal Reserve System's currency through hyperinflation in the foreseeable future."
South Dakota H.B. 1237
Among the most controversial bills of recent memory was H.B. 1171, which became a flash point in the right's broader national challenge to abortion rights. Introduced by Republican State Rep. Phil Jensen, the bill sought to widen the definition of "justifiable homicide" (usually restricted to self-defense) to include homicide committed to prevent harm to a fetus.
H.B. 1217, meanwhile, would force women to undergo counseling at a Crisis Pregnancy Center (CPC) before they can obtain an abortion. Critics note that CPCs are not regulated and are generally run by anti-abortion Christian groups and staffed by volunteers—not doctors or nurses.
State Rep. Hal Wick introduced H.B. 1237, a bill that would mandate that every resident of the state over the age of 21 purchase a firearm sufficient for their self-defense. It is, says Wick, his way of satirizing mandatory health care.
State Sen. Bill Ketron and State Rep. Judd Matheny introduced S.B. 1028 to make the practice of Shariah law a felony. It is considered the strictest anti-Shariah law among more than a dozen such bills around the country that would bar judges from considering Shariah in legal decisions, according to the National Conference of State Legislatures.
The bill's sponsors, who are also fighting the expansion of a mosque 30 miles southeast of Nashville, describe the bill as "a powerful counterterrorism tool." Local Muslim groups fear the measure would outlaw central tenets of Islam, such as praying five times a day toward Mecca, abstaining from alcohol and fasting for Ramadan.
Nearly 60 pieces of immigration-related legislation have been filed in the Lone Star state legislature. The bills range from mandating that school districts report immigration status of children, to making it a felony to hire an undocumented individual, to denying birth certificates to children of the undocumented (another direct challenge to the 14th Amendment). Republican State Rep. Lois Kolkhorst has introduced a bill that would mandate law enforcement agents turn detained undocumented residents over to a U.S. senator's office or congressmen's office.
The Senate also saw the introduction of S.B. 16, requiring doctors to perform a sonogram at least two hours before an abortion takes place and to provide the woman with an opportunity to view it or hear the fetal heartbeat. The bill's exceptions include cases of rape, incest or where the fetus has fatal abnormalities.
In the words of one longtime political analyst of the Beehive State, "Utah politics always has a lot of crazy to choose from." This year offers a typically rich bounty.
The state has seen a raft of "Arizona-like" enforcement-only immigration bills, mostly notably H.B. 497, which would create a light trigger (misdemeanors) for the mandatory check of immigration status. Another bill would repeal resident tuition for state college students who are in the country illegally but graduated from a Utah high school.
And thanks to State Rep. Carl Wimmer, the Browning M1911 handgun is now the official Utah state firearm. (Wimmer is also pushing to liberalize gun laws with a "constitutional carry" provision which would allow anybody who isn't mentally ill to have a loaded gun, anywhere, without a permit.)
And State Sen. Mark Madsen introduced H.B. 220, which states that the United States is a "constitutional compound republic" — not a "democracy" — and that Utah schools should make this clear in classrooms. Madsen says his bill stems from a desire to have "true history" taught. "Schools from coast to coast are indoctrinating our children to socialism," he said.