Who Knew? Secession Again on the Agenda in Missouri

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

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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?

The last question is the most serious, of course, because SJR 45 is still pending in Missouri four months after Sen. Nieves introduced it. Earlier this month, in fact, it was passed out of the state's General Laws Committee. This week it might move even further along the path toward a future ballot (and future litigation, which will strike it down). As an expression of disdain for the federal government -- and for the rule of law itself -- it's quite a measure. But when you consider its source S.J.R. 45 reads more like a totem for this election cycle.

It's war. Sen. Nieves sees himself as an anti-government soldier whose duty is to protect his constituents from federal power and authority. He's walking the walk by introducing this measure and other controversial ones. And ever since the election of Barack Obama to the White House he's talked the talk of uprisings and battle. In 2009, for example, while he was a duly-elected state representative, Neives offered up this gem, a pitch chillingly familiar to anyone who followed the Oklahoma City bombing case a generation ago. Sen. Nieves said:

Sooner or later there's going to have to be a showdown. So be encouraged, be motivated... because 30 years from now, somebody's going to ask you what you did during the Patriot uprising... And it's my prayer that you'll be able to say you were right in the middle of it and that you had a piece of this fight.

Fighting about what? We know that, too. Nieves evidently is part of a conservative advocacy organization called State Legislators for Legal Immigration, a group with a focus and a zeal to its anti-immigration agenda that has drawn the attention of the Southern Poverty Law Center, the civil rights organization that tracks anti-government activity. Here is how the Law Center describes the focus of the legislators' group:

Gay people are the "death knell" of America. The Confederacy fought for "individual liberties." One-world government, as predicted in the Book of Revelation, is around the corner. The federal government knew about the Oklahoma City bombing before it happened. President Obama is a secret Muslim and not an American citizen. The babies of undocumented immigrants are a "poison." State troopers should confine immigrants to special ghettoes (sic). A federal agency has secretly built a series of concentration camps for patriotic Americans.

It doesn't matter that Sen. Nieves' measure could never become Missouri law. It doesn't matter that it will likely cost Missouri's taxpayers millions to discover conclusively that this is so. Nor does it matter that the state for decades, for generations, has received a great deal more in tax revenue from Washington than it pays each year to the federal government. What matters instead is the symbol the measure suggests to a small segment of the public which believes it makes perfect sense for states to interpret federal law their own way. To these folks, Sen. Nieves isn't a kook or a secessionist or a traitor. He's a hero.

Which brings me to President Obama. I sure hope someone asks him this election cycle to make clear his views of politicians like Nieves and of legislative measures like this one. That's a national conversation worth having, don't you think? I'd also love to know whether Mitt Romney, the former governor of the original patriot state, thinks that states should be drawing the line here when it comes to defining their relationship with the federal government. The presidency would be a very different thing, indeed, in an America where each state is free to ignore the nation's laws.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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