Who Knew? Secession Again on the Agenda in Missouri

A state senator's radical amendment would prohibit the "Missouri state government from recognizing, enforcing, or acting" upon any federal law conservatives oppose.

After flinging their working papers into the air, members of the Missouri House of Representatives watch them float down to the floor Friday, May 13, 2011/AP IMAGES

Did you know that Missouri is (again) thinking about seceding from the Union? Neither did I until I stumbled across SJR 45, a wince-worthy measure introduced earlier this year by Tea Partyist Brian Nieves, a Republican state senator whose anti-government rhetoric is strident even by today's grim standards. The proposed state constitutional amendment -- it would have to be approved by voters even if it makes it by the politicians -- is patently unconstitutional but remarkably candid in expressing the seditious level of dissent circulating through some state legislatures around the country.

The official title of SJR 45 is: "Prohibits Missouri state government from recognizing, enforcing, or acting in furtherance of certain actions of the federal government" but that's quite an understatement. The bill first caught my eye for its odd provision that would require state officials to interpret the Constitution using the "original intent" analysis currently in vogue among conservative legal theorists. But then I read the measure more closely and realized that the "original intent" portion of it is probably the least crazy portion of it. Here is the text:

Upon approval by the voters, this constitutional amendment prohibits the Missouri legislative, executive, and judicial branches of government from recognizing, enforcing, or acting in furtherance of any federal action that exceeds the powers delegated to the federal government.

The state also shall not recognize, enforce, or act in furtherance of any federal actions that: 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 as 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 state is also required to interpret the U.S. Constitution based on its language and the original intent of the signers of the Constitution. Amendments to the U.S. Constitution shall be interpreted based on their language and the intent of the congressional sponsor and co-sponsors of the amendment.

The amendment also declares that Missouri citizens have standing to enforce the provisions of the amendment and that enforcement of the amendment applies to federal actions taken after the amendment is approved by the voters, federal actions specified in the amendment, and any federal action, regardless of when it occurred, that the general assembly or the Missouri Supreme Court determines to exceed the powers enumerated and delegated to the federal government by the U.S. Constitution.

Whoa. Is Missouri going to declare war on the United States? Are its citizens going to refuse to enforce laws they don't agree with? Are we seeing a form of "Interposition Light," a modern riff on anti-federalism, with all of the odious characteristics of the old, discredited doctrine except the word "interposition" itself? And exactly which elected officials in the Show-Me state, aside from Sen. Nieves that is, believe that a state can ignore or nullify federal court rulings or otherwise unilaterally cede its responsibility to recognize and respect federal law?

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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