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Commentary: The failed history of nullification

This article first appeared in the St. Louis Beacon, Sept. 4, 2013 - Politics changes less than we might think. Similar patterns reappear in U.S. history.

Today we have a tea party movement that has gained considerable leverage among Republicans. Its message is simplistic: less government, particularly at the federal level; no tax increases; pro-life; pro-gun.

Many of its adherents are exurban or rural. They seem enamored of a simpler place in time. The barely recovering economy poses a threat to their maintenance of a middle-class existence. “Don’t tread on me” is an apt motto for them.

They may also be threatened by social and demographic changes. The president is African American. The Hispanic population is growing. It is not surprising that their ranks are largely white. Guns have often played a role in their lives and they oppose any limitation on ownership whatsoever.

What is evident in Missouri and in Washington, D.C., is the complete lack of flexibility among the tea partiers. They reject any notion of accommodation, and they earmark for defeat any Republican officeholders who do not follow their path. Even Republican leaders dare not oppose them on many issues. They are not yet a majority of Republicans but act and are treated as if they were.

In Missouri, Rep. Doug Funderburk of St. Charles County has reopened a debate that was first settled before the Civil War. But it still rears its head very occasionally. Funderburk spearheaded to passage in the Missouri legislature a bill that would nullify all federal gun laws.

The idea of nullification stems from the 10th Amendment and the concept of implied powers. What the Constitution does not demarcate as powers of the federal government are to be left to the states.

In the 19th century, the South Carolina legislature and one of the state’s senators, John C. Calhoun, took the position that South Carolina was not bound by federal tariff laws. States need not obey federal actions falling within the implied powers. Calhoun and his fellow South Carolinians did not succeed in nullifying the federal tariffs. The root of the matter lay in the agricultural south not benefitting from policy that favored the north.

The concept of nullification has been broached since. Ironically, the Supreme Court ruled in favor of state pre-eminence when it struck down the Defense of Marriage Act. Definition of marriage is a state purview, and the federal government cannot disallow state judgment as to who may marry whom. But few tea partiers welcomed this decision that changes long-held societal patterns.

The Missouri legislature passed this gun law nullification act. Gov. Jay Nixon vetoed it. The upcoming veto session will consider an override of the governor’s veto.

Even though the NRA has kept silent about this measure, some legislators are afraid to vote in a way that could be considered weak on guns. Fear of change is also present. On one side, you will have a multiracial group of urbanites who see gun violence on a daily basis. On the other are whites and traditionalists. Neither group necessarily wants to see the viewpoints of their opponents. The “nullifiers” particularly are irredentists. They will not change their position under any circumstances. To some, civilization itself depends on the outcome.

With Missouri a 40-something state, why do some want a law that will certainly involve costly litigation and most likely an unfavorable outcome?  Why are gun rights more significant than education, jobs, health care? This nullification controversy is not new. But, it is also symptomatic of contemporary polarization and a move away from facing the complexity and dangers of the 21st century.

Lana Stein is a professor emerita of public policy at the University of Missouri-St. Louis.

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