Davis Merritt: Hidden price of nullification: forfeited rights

08/30/2013 6:42 PM

08/30/2013 6:42 PM

In many periods of American history, it would have been easy to dismiss as hopeless cranks people like former Arkansas Gov. Orval Faubus, Alabama Gov. George Wallace and South Carolina Sen. Strom Thurmond.

But anyone who was of age in the 1950s and ’60s remembers all too well how their convoluted constitutional theories coalesced into bombings, blood and death in the streets and military force being necessary to ensure the voting and equal educational opportunity rights of citizens.

The 50-year anniversary last week of the Rev. Martin Luther King Jr.’s “I Have a Dream” speech also marked a half-century since the idea of state nullification of federal laws had any credence at all. But the irony of that historical juxtaposition is lost on a new generation of nullification enthusiasts in state legislatures.

Instead of dealing with the fixable problems states face (educational deficiencies, jobs, increasing economic imbalance, health care, etc.), the new nullificationists in Kansas, Missouri and a few other states, in their primal zeal to send a message to the federal government and courts, are willing to create enormous collateral damage by depriving residents of their states of their U.S. citizenship rights.

At least the Faubus-Wallace-Thurmond axis, as mistaken as they were on both the law and morality, understood the clear nullification lessons from 1865.

All but the most willfully clueless of the new nullificationists must surely know they cannot prevail against the avalanche of negative and expensive court decisions they are inviting.

So why persist? What’s behind the new madness?

Missouri’s legislature will vote soon whether to override Gov. Jay Nixon’s veto of its latest and most blatant nullification bill. The dynamics of that decision offer some distressing insight.

The bill would nullify all federal gun laws in the state, make it a crime for federal agents to enforce them, and prohibit state officials from helping them. Even the Faubus-Wallace-Thurmond axis did not suggest that state law enforcement officers could or should try to arrest the federal agents who moved in to enforce the Constitution in the ’50s and ’60s. That was at least a small grasp on sanity that had not been present in 1865 when the “sovereign states” of the South lost a hopeless and bloody five-year war over the same issue.

In Missouri 148 years later, 108 of 109 Republican representatives and 11 Democrats voted for the nullification bill. All 24 GOP senators and two Democrats voted for it.

Rep. T.J. McKenna, who could provide the one Democratic vote necessary to override, voted for passage despite knowing and saying it was unconstitutional, a view shared by most uninvolved observers.

“What am I supposed to do?” he asked. “Just go against all my constituents?”

Well, yes, when it really matters and they are mistaken.

Legislators have a duty to know and respect the views of those who elect them. But they also have a duty to those who did not vote for them and, more important, to the state and U.S. constitutions they swore to uphold. And they are responsible for understanding issues better than their constituents and, when necessary, informing them. That can, of course, mean not being re-elected.

Kansas Secretary of State Kris Kobach, author of a kindred nullification law passed by our Legislature, distinguishes it from Missouri’s because it does not require state officials to arrest federal officials. That’s inconsequential consolation because, like Missouri’s, it denies Kansans equal protection of the laws.

Nobody elected him or the legislators to do that.

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