Missouri Bill Declares All Out War On The Constitution

Shortly after President Obama took office, his opponents began combing through constitutional history looking for discredited ideas they could revive to block progressive advances. Many embraced tentherism, the belief that everything from Social Security to Medicare to national child labor laws violates the Constitution. Two conservative federal judges recently took this even further, suggesting that all labor, business or Wall Street regulation should be treated as if it were just as constitutionally suspect as Jim Crow or government-enforced speech codes. Numerous lawmakers, including Govs. Rick Perry (R-TX), Bob McDonnell (R-VA) and Bobby Jindal (R-LA) embrace nullification, the unconstitutional idea that states can simply invalidate federal laws that they don’t want to follow. And, conservative orthodoxy now proudly embraces the ridiculous idea that the Affordable Care Act is unconstitutional.

Missouri state state Sen. Brian Nieves (R) puts most of these efforts to shame, however. In a rambling, somewhat incoherent proposed amendment to his state constitution, Nieves combines parts of the most unconstitutional tactics revived in the last three years, and mixes them in with a fundamental misunderstanding of conservative legal theory. As the amendment’s summary explains, Nieves proposal provides that:

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.

Much of this proposal is utter gobbledygook. It’s not at all clear, for example, what it means for Missouri to “recognize” a federal law regulating emissions or punishing hate crimes more severely than others. So long as Nieves’ proposed amendment isn’t read to suggest that Missouri can somehow prevent the federal government from enforcing its own laws — something that would be clearly unconstitutional — much of the amendment’s text would actually do nothing at all.

Parts of it, however, call for outright defiance of the Supreme Court and other binding judicial decisions. The amendment defines a “federal action” to include any federal “judicial ruling.” So Nieves’ amendment is nothing less than an attempt to declare Roe v. Wade inapplicable to Missouri, in addition to any future decision ensuring marriage equality or any current decision enforcing the Constitution’s guarantee of church/state separation. Southern states tried to do the same thing to Brown v. Board of Education in the 1950s. It wasn’t constitutional then and it remains unconstitutional today.

The most bizarre part of Nieves’ amendment, however, is its declaration that the Constitution must be interpreted based on the “original intent” of its signers. Leading conservative jurists, such as Robert Bork and Antonin Scalia, abandoned this method of interpretation decades ago, and for good reason. The framers themselves rejected the idea that the Constitution should be interpreted according to their own subjective intentions, so Nieves’ amendment actually creates a paradox. Judges will be required to rely only on the framers’ original intent, but the framers’ original intent was that judges should not rely on their original intent.

Ultimately, Nieves’ amendment simply shows the unseriousness that far too many conservatives bring to the Constitution. His amendment is useless at some points, wildly unconstitutional at others, and seems designed to make judges’ heads spin as they try to resolve the fact that the amendment contracts itself.