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22 April 2009

Will Montana fire on Fort Sumter?

Update 2bill fails. Updated (update 1). Figuratively speaking, that’s the question posed by HR-3, the second of Rep. Michael More’s state sovereignty resolutions, which escaped the house judiciary committee on a 10-8 vote today (and an 11-7 vote yesterday). The first, HJ-26, failed on a tie vote in committee on 23 February (an attempt to blast it out of committee failed the next day).

No student of the Civil War can read these resolutions without experiencing a chilling moment of deja vu. HJ-26 declares “That every state has a right to nullify all assumptions of power by others within their limits, and that without this right, states would be under the dominion and power of anyone who might try to exercise that power.” Sound familiar? It will, if you’re read South Carolina’s 24 November 1832 Ordinance of Nullification:

Whereas the said Congress, exceeding its just power to impose taxes and collect revenue for the purpose of effecting and accomplishing the specific objects and purposes which the constitution of the United States authorizes it to effect and accomplish, hath raised and collected unnecessary revenue for objects unauthorized by the constitution.

We, therefore, the people of the State of South Carolina, in convention assembled, do declare and ordain and it is hereby declared and ordained, that the several acts and parts of acts of the Congress of the United States, purporting to be laws for the imposing of duties and imposts on the importation of foreign commodities…are unauthorized by the constitution of the United States, and violate the true meaning and intent thereof and are null, void, and no law, nor binding upon this State, its officers or citizens; and all promises, contracts, and obligations, made or entered into, or to be made or entered into, with purpose to secure the duties imposed by said acts, and all judicial proceedings which shall be hereafter had in affirmance thereof, are and shall be held utterly null and void. [Full text at the link above.]

HR-3 omits that blatant an assertion of nullification. Instead, it asserts that:

Update 1. This is the new version:

(17)(14) That any act by the Congress of the United States, Executive Order of the President of the United States, or Judicial Order of the United States that assumes a power not delegated by the United States Constitution and diminishes the liberty of this State or its citizens constitutes a breach of the United States Constitution and Bill of Rights by the government of the United States, which would also breach Montana’s “Compact With the United States”. Acts that would cause such a breach include but are not limited to:

(a) establishing martial law or a state of emergency within a state without the consent of the legislature of that state;

(b) moving federal military personnel or units into a state without the consent of the legislature of that state or with the intent to enforce federal laws or to assert the supremacy of the federal government;

(c) requiring involuntary servitude or governmental service other than a draft during a declared war or pursuant to or as an alternative to incarceration after due process of law;

(d) requiring involuntary servitude or governmental service of persons under the age of 18 years, other than pursuant to or as an alternative to incarceration after due process of law; or

(e) surrendering any power delegated or not delegated to any corporation or foreign government.

This is the old version:

(17) That any act by the Congress of the United States, Executive Order of the President of the United States, or Judicial Order of the United States that assumes a power not delegated by the United States Constitution and diminishes the liberty of this State or its citizens constitutes a breach of the United States Constitution and Bill of Rights by the government of the United States, which would also breach Montana’s “Compact With the United States”. Acts that would cause such a breach include but are not limited to:

(a) establishing martial law or a state of emergency within a state without the consent of the legislature of that state;

(b) moving federal military personnel or units into a state without the consent of the legislature of that state or with the intent to enforce federal laws or to assert the supremacy of the federal government;

(c) requiring involuntary servitude or governmental service other than a draft during a declared war or pursuant to or as an alternative to incarceration after due process of law;

(d) requiring involuntary servitude or governmental service of persons under the age of 18 years, other than pursuant to or as an alternative to incarceration after due process of law; or

(e) surrendering any power delegated or not delegated to any corporation or foreign government.

(18) That if any act of Congress becomes law or if an Executive Order of the President of the United States or Judicial Order of the United States is put into force beyond the reservations expressed in this resolution, or if any treaty is entered into by the federal government that nullifies the rights of the people of Montana as expressed in the United States or Montana Constitutions, Montana’s “Compact With the United States” may be considered breached and all powers previously delegated to the United States via the United States Constitution revert to the states individually.

Similar resolutions, all based on a creative reading of the Tenth Amendment to the U.S. Constitution, have been introduced in at least 33 states. In his 12 March 2009 Findlaw column, Edward Lazarus observed:

It is difficult to see where the legislators who have drafted these states’ rights bills find this “nullification” authority in the Tenth Amendment. That Amendment simply states that “the powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people.” Nowhere in this somewhat opaque text does the Constitution vest states with the right to unilaterally pick and choose what federal laws to obey based on their own conceptions of the Constitution. And if it somehow did, our system would simply fall apart. Federal power either overrules state power – as the Supremacy Clause dictates – or is merely advisory, which is untenable.

But if these state actions have only dubious grounding in the Constitution, they do have long and obvious historical roots – and shameful ones.

The Shameful History Behind the Nullification-Power Claims We Are Hearing Now

Back in 1828, then-Vice President John C. Calhoun gave voice to the doctrine of “nullification” in his fury over the federal tariffs that were then being imposed on states by the federal government. Like the modern-day nullifiers, Calhoun read the Tenth Amendment as providing states with a veto over disfavored federal legislation, to wit, a tariff too high for South Carolina’s views of what was proper.

As Calhoun famously framed the idea: “That the sovereign powers delegated are divided between the General and State Governments ... it would seem impossible to deny to the States the right of deciding on the infractions of their powers, and the proper remedy to be applied for their correction.” And on this theory, a South Carolina convention passed the “Ordinance of Nullification,” which declared the tariffs of 1828 and 1832 to be null and void.

There are echos of Jefferson Davis and John C. Calhoun in HR-3 and HJ-26, echos that should incite widespread condemnation of both resolutions, and, frankly, of Rep. More himself. Instead, the reaction has been along party lines. The attempt to blast HJ-26 out of committee secured 49 Republican and two Democratic votes, and was opposed by 48 Democrats and one Republican. For me, this suggests that the resolutions are in part partisan mischief, intended to manufacture evidence that Republicans are champions of states rights while Democrats are agents of federal supremacy and enemies of individual liberty.

Because the resolutions are not binding, there can be a temptation not to take them seriously — to base one’s reaction and vote on one’s estimate of how the resolutions will play with one’s constituents. But that would be a serious error. Simply introducing HR-3 and HJ-26 in the legislature, and having them heard by the judiciary committee, has conferred a certain legitimacy upon these resolutions and their odious contents. More legitimacy was conferred by the committee’s vote to approve HR-3.

It is possible that the committee’s decision to send HR-3 to the floor of the house was a calculated decision to force a vote that would decisively repudiate the resolution. But that seems improbable given the house’s overwhelming support for HB-246, which attempts to exempt Montana from the commerce clause of the U.S. Constitution for firearms manufactured and kept in Montana. Governor Schweitzer signed HB-246 — which is widely viewed as a gun rights measure, but is actually another states rights manifesto and nullification ordinance — so it would surprise me if he denounced HR-3. There’s a chance that the house could approve HR-3.

A century and a half ago, the doctrine of nullification led to the attempted secession of the Confederate states and the Civil War. It is more than a little disappointing and disquieting that some members of Montana’s legislature are attempting to give new credence and voice to a discredited idea over which so much blood was spilled.

HR-3 fails on second reading on tie vote

Updated 23 April. That was 22 April. The vote, 50-50, was 100 percent partisan. All Republicans voted for it — and all Democrats voted against it, even Deb Kottel, who my sources report was the Democrat in the judiciary committee who broke ranks and joined the Republicans to send the resolution to the floor. No further action has occurred, so it’s increasingly unlikely that the resolution will be resurrected this session. On a relative scale, that’s a relief — but it’s disturbing that the entire Republican membership of the house voted for a resolution that panders to crackpots and zealots who want to lay a legal and political foundation for Montana’s secession from the United States. These legislators have willfully ignored history and stiffarmed common sense.