Opinion: Riding A New Wave Of Nullification
I am siding with Grandpa Simpson and refusing to recognize Missouri — at least until Missouri recognizes the Constitution. Last week, its Republican-dominated legislature failed, by one vote, to override a veto of the (so-called) Second Amendment Preservation Act.
The act, which had passed by a wide margin in May, would have invalidated all federal laws that "infringe on the people's right to keep and bear arms," and would have made it a crime for federal officials to enforce such laws in Missouri. And so, the Supremacy Clause survives in the Show Me State, but remains squarely in legislative crosshairs around the country.
We have 19th-century Southern firebrand John C. Calhoun to thank for this assault on the supremacy of federal law. Calhoun, in spite of having served as a congressman, senator and vice president, was the chief exponent of nullification, the pernicious doctrine that the federal government is merely a creature of the states and, as such, each state has the right to decide which federal laws are valid within its borders.
During a battle over federal tariffs in the early 1830s, Calhoun wrote of the supposed "right of a State to interpose, in the last resort, in order to arrest an unconstitutional act of the General Government, within its limits." Calhoun's home state of South Carolina put his theory to the test and "nullified" the most hated of the tariffs, which prompted President Andrew Jackson — never one for subtlety or half-measures — to send warships to Charleston and threaten to hang Calhoun. (To be fair, nullification was not exclusively a Southern doctrine: In the 1840s, Massachusetts, Vermont, Pennsylvania and Rhode Island passed laws that forbade state officials from enforcing the Fugitive Slave Act.)
One might have thought that the idea of states declaring federal laws unconstitutional went out with cravats and the paddle-wheel steamer, but nullification is back in vogue — at least with a certain segment of our polity. In 2009, Montana passed the Firearms Freedom Act, which purports to exempt from federal regulations any gun that was manufactured in the state and kept there. While the U.S. Court of Appeals for the Ninth Circuit invalidated the law in August, Tennessee, Utah, Wyoming and South Dakota have passed similar laws.
Missouri, like President Jackson apparently no fan of half-measures, upped the ante: After declaring a series of federal gun control laws and regulations "null and void," Missouri's proposed law states that "[a]ny official, agent, or employee of the United States government, who enforces or attempts to enforce any of the infringements on the right to keep and bear arms included in subsection 3 of this section is guilty of a class A misdemeanor." The act also creates a private cause of action for any Missouri citizen allegedly "subject[ed] to an effort to enforce any of the infringements on the right to keep and bear arms". (Perhaps a better title for the proposed law would have been the Section 1983 Court-Clogging Litigation Act?)
To clothe Missouri's power grab in respectable garb, the act contains a series of "findings" concerning the scope of Congress' constitutional authority and portentously declares: "The general assembly of the state of Missouri is firmly resolved to support and defend the United States Constitution against every aggression, either foreign or domestic, and the general assembly is duty bound to watch over and oppose every infraction of those principles which constitute the basis of the Union of the States, because only a faithful observance of those principles can secure the nation's existence and the public happiness." And Brutus is an honorable man, so are they all, all honorable men.
To be sure, Missouri's legislature can announce that a federal law is unconstitutional; so can my dog. But, as James Madison noted in his Report of 1800, a state legislature's opinion and my dog's opinion carry equal weight because such legislative statements are mere "expressions of opinion." It is to the federal courts, and not state legislators, that we have entrusted the power to pass judgment on the constitutionality of federal law.
Alas, gun laws are only one target of the current crop of Calhoun's Crazies. Two dozen states, for example, have considered legislation that would nullify the Affordable Care Act — and other hated federal programs may be next on the state chopping block. Although many of these attempts at nullification end up stillborn, the very fact that the attempt is made at all is a troubling sign of cracks in the foundation of federalism.
In a classic episode of Law & Order, Adam Schiff chides Jack McCoy for prosecuting a Vietnam War-era protest crime by reminding McCoy that he once wrote that "an unjust law demands an illegal act." McCoy's dictum may be fine for student protestors, but woe betide us if it becomes the rallying cry for a new wave of nullification by our state legislators.•