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Today in the Transformation of the Party of Lincoln to the Party of Calhoun

[ 48 ] August 29, 2013 |

It’s not all that easy to get to Andrew Jackson’s right these days, but Missouri legislators may pull it off:

Unless a handful of wavering Democrats change their minds, the Republican-controlled Missouri legislature is expected to enact a statute next month nullifying all federal gun laws in the state and making it a crime for federal agents to enforce them here. A Missourian arrested under federal firearm statutes would even be able to sue the arresting officer.

The law amounts to the most far-reaching states’ rights endeavor in the country, the far edge of a growing movement known as “nullification” in which a state defies federal power.

The bill was actually passed once, but it was vetoed by Jay Nixon based on the so-called “Supremacy Clause,” which is presumably part of the same mythical Unicorn Constitution as “Section 2 of the 15th Amendment” and “Article I, Section 8.”

It must be said that the linked article is somewhat strange, following up the discussion above with an attempted both-sides-do-it comparison with the alleged “nullification” of federal marijuana laws. The problem is that words mean things and state legalization of medical marijuana is not actually “nullification.” Fortunately, the article does go on to provide a rebuttal to its own frame, albeit off the front page of the print edition:

What distinguishes the Missouri gun measure from the marijuana initiatives is its attempt to actually block federal enforcement by setting criminal penalties for federal agents, and prohibiting state officials from cooperating with federal efforts. That crosses the constitutional line, said Robert A. Levy, chairman of the libertarian Cato Institute’s board of directors — a state cannot frustrate the federal government’s attempts to enforce its laws.

Yes, I would have to say the fact that unlike the lack of nullification in state marijuana decriminalization does distinguish them from laws that are in fact nullifications of state power. States aren’t obliged to make every federal crime a crime under state law; it’s only “nullification” when a state attempts to prevent the federal government from enforcing federal law. What I still don’t understand is what the comparison was doing in the article in the first place.

Comments (48)

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  1. What I still don’t understand is what the comparison was doing in the article in the first place.

    Because both sides.

    Duh.

    • Rick Massimo says:

      Because please don’t throw rocks through our windows, people who simply have serious principled objections to overspending!

    • bspencer says:

      I was gonna say. Classic bothsidesdoitism.

    • L2P says:

      Also and especially, those Dirty Fucking Hippies. Don’t forget that.

    • GoDeep says:

      Oh, my, our hypocrisy has been exposed!

      As much as we liberals don’t like to admit it, state’s rights & federalism have their uses! Don’t like the EPA standards? That’s ok, California will make stronger ones! Don’t like federal pot laws? Don’t worry Colorado will ignore them!

      The outrage here has to do entirely with the fact that liberals don’t like to be lumped in with states rights conservatives. Because there’s simply no intelligible argument to made here which differentiates states’ decriminalizing pot & states loosening gun laws. Unfortunately both sides are hypocrites.

      We liberals should drop the outrage b/cs the fact is that federalism is good for us too. Thank God California has more liberal laws than the sort our conservative Congress has cooked up.

      • Loud Liberal says:

        The false equivalency is that prohibition of intoxicants is a twice demonstrable failure with no rational basis other than to enrich the owners of the private prison industry, and the regulation of guns is a legitimate, necessary exercise of public safety policy.

  2. sharculese says:

    So how long until the Cato Institute is pilloried as a far left organization?

    • JMP says:

      Yeah, if even the fucking Cato institute thinks your crackpot law supporting “state’s rights” over federal law crosses the line, then it must really be insane and flagrantly illegal.

  3. c u n d gulag says:

    The quality of the journalism at the NY Times, as well as the writing, has had a significant drop-off since I was in 5th Grade in 1968, and my teacher asked parents to buy a copy of the NY Times on Wednesday’s for us kids in the class, so we could read the GREAT Russell Baker’s Op-ed columns together on Thursdays, and discuss current events.

    And yes, she brought in extra papers every Thursday, for the parents of the kids who’d forgotten – or who couldn’t afford it. She was a GREAT teacher!

    I bought the Times daily for most of my adult life – until I moved to NC in early 2000. And even then, I read it daily on the internet – AND bought a copy every Sunday.

    But I’ve noticed that it has declined more and more, every year.

    When I moved back to NY, my parents and I could only afford to get the paper on Sundays.

    And when my NY Times-loving father passed away last year, I stopped buying even the Sunday Times completely – which, for years, I bought especially for him, and out of force-of-habit.

    So, I’m not surprised that there are inconsistencies in articles. I’m surprised that there aren’t more of them.

  4. Murc says:

    It must be said that the linked article is somewhat strange, following up the discussion above with an attempted both-sides-do-it comparison with the alleged “nullification” of federal marijuana laws.

    The article does no such thing.

    Here’s the entirety of the frame, such as it is, in said article:

    Adam Winkler, a professor of law at the University of California, Los Angeles, who follows nullification efforts nationally, said that nearly two dozen states had passed medical marijuana laws in defiance of federal restrictions.

    Now, that’s a little bit awkward, I admit, but it’s awkward for a good reason: you have to set the pins up before you knock them down.

    The article is attempting to inform people, and not all people are going to be following all issues closely. But, if I were a newsman writing this, my thought process would work as follows:

    “Hmm. A non-trivial number of people reading this article are going to think about how Missouri attempting to nullify federal law compares to all the states that have been legalizing marijuana. They are probably not versed in the hair-splitting differences between ‘we won’t enforce this law on behalf of the feds’ and ‘we will actually try and STOP the feds’. They’ll just know some states have taken a stand against federal drug laws and here’s a state taking a stand against federal gun laws. I need to illustrate that, yes, there’s a real substantive difference here. To do that, I will first make the comparison in order to demolish it, as the article would read very oddly if I demolished a point I hadn’t yet raised or acknowledged.”

    There is no both-sides-do-it-ism at play here, there really isn’t. Scwartz doesn’t go out of his way to point out the political makeup of the states that have been at the forefront of the legalization initiatives and then draw a comparison between that the political makeup of Missouri. He grabs a quote from someone who is presumably an expert to make the initial comparison, which many of his readers would be making on their own, and then knocks it down.

    I mean, how would you have gone about it, bearing in mind that this isn’t an op-ed and Schwartz has to remain within style guidelines for a news piece if he wants to be published?

    • Scott Lemieux says:

      You’re ignoring this crucial part of the frame from the above paragraph:

      the far edge of a growing movement known as “nullification” in which a state defies federal power.

      Combined with the follow-up quote, this implies that marijuana decriminalization is on a “nullification” continuum with the Missouri law being merely a more extreme example, when in fact they’re different in kind.

      • Murc says:

        You’re ignoring this crucial part of the frame from the above paragraph:

        the far edge of a growing movement known as “nullification” in which a state defies federal power.

        That’s… not in said above paragraph.

        Combined with the follow-up quote, this implies that marijuana decriminalization is on a “nullification” continuum with the Missouri law being merely a more extreme example, when in fact they’re different in kind.

        That would be true if he’d simply left it at that. Would not the following takedown, in the very same article by the same guy, and in much starker language (the takedown isn’t an implication; it’s an actual takedown) suggest that the most obvious interpretation is simply that the writer raised the point specifically to demolish it?

        I mean, I’m not familiar with Schwartz. But I’ve consumed a lot of news, and I’m at least passingly familiar with the style requirements involved on a formal basis, and given that this issue basically invites comparison with marijuana decriminalization, it seems like he did things they way they’re supposed to be done.

        I ask again; how would you have gone about it? You have to actually raise the comparison before you can demolish, and that is EXACTLY what he does.

        • L2P says:

          how would you have gone about it?

          Easy.

          “Decriminalization of medical marijuana is absolutely unrelated to these nullification arguments. Marijuana decriminalization, unlike these nullification arguments, is carefully crafted to avoid confrontations with federal law.”

          Why do you think it’s so complicated to, you know, just tell the fucking truth?

          • Murc says:

            That line wouldn’t make it past a competent editor. It would come back with a note demanding that you take a more neutral tone and that you provide greater context, most likely by noting the superficial similarities in order to them reveal the substantive differences.

            • L2P says:

              What I wrote is, quite literally, the truth. There are no “superficial similarities” between nullification and decriminalization. One involves attempting to prohibit the application of federal law. The other involves not making something criminal. Federal law literally doesn’t matter because it’s crafted to avoid federal law.

              If you wanted to write a 2000 word article explaining NOTHING but the differences between decriminalization and nullification you might, just barely, be able to do it. But otherwise noting the “superficial similarities” just confuses the issues because they’re AREN’T ANY superficial similarities.

              If “competent editors” require making a simple concept confusing in order to be “neutral,” then there’s no point to having an editor.

          • Manny Kant says:

            I am glad you are not writing/editing newspaper articles.

        • Randy says:

          how would you have gone about it?

          I would have left it out of the story.

          I doubt many people, even those versed in the issues, would have seen any similarity between the two issues. I, for one, saw no linkage until the story mentioned it. The only way I could see this crossing a reader’s mind is if some Fox News blowhard brought it up (“Look at what the hippies are doing! And they’re saying we can’t do the same thing to protect our bang-bang sticks?!”). There is no need to raise the comparison because there is nothing to demolish.

        • rea says:

          Goodness, Murc–Missouri gun laws would be exactly comparable to medical marijuana laws WITHOUT the new law–Missouri gun laws don’t restrict guns to the same extent, and in the same way, as federal laws, jsut like the marijuana laws. And that’s okay, that’s traditional federalism–the powers of the state and federal governments overlap to some extent, but they don’t have to do the same things. A state law that purports to make enforcement of federal law ILLEGAL is in a completely different catagory.

      • Davis X. Machina says:

        The state medical marijuana laws are more like the state personal-liberty statutes passed in the wake of various Fugitive Slave Acts…

        • Joe says:

          Those laws were largely in place to protect state resident blacks from being wrongly seized by providing state protections against kidnapping and the like.

          I’m not sure if states not making medical marijuana criminal while the feds do is quite the same thing.

      • GoDeep says:

        The 2 laws may be different in kind, but both are types of nullification laws. As the article ALSO mentions this is not the first state law that attempted to nullify federal gun laws, its simply the most recent & far reaching of many.

        These other gun laws (in states such as MT, KS, and AZ) are absolutely the same “in kind” as the medical marijuana laws.

        So, this is not a question of nullification, but of approval. Namely, liberals generally approve of mj legalization & they don’t approve of these gun laws. Conversely go the conservatives. Of course, in some sense, “nullification” is what federalism is all abt.

    • L2P says:

      No.

      The state laws decriminalizing marijuana use are not defying federal law. The article, by quoting a law professor implying that they do, is simply misleading. It doesn’t help to make an ass-backwards explanation of how it’s maybe, sorta, not the same thing.

      This quote?

      Adam Winkler, a professor of law at the University of California, Los Angeles, who follows nullification efforts nationally, said that nearly two dozen states had passed medical marijuana laws in defiance of federal restrictions.

      That shouldn’t be in the article AT ALL. It is simply wrong. It’s no different than if an article talking about black holes started with a quote from some fringe scientist saying, “Some black holes are the eyes of Great Cthulu, staring at us from beyond time and space.” The NY Times shouldn’t print either quote; it’s terrible journalism and leads to a mistaken impression, even if the article attempts to provide the right answer.

      There is literally no need for that statement. It literally provides NO information that is useful to anyone.

      • sharculese says:

        It’s no different than if an article talking about black holes started with a quote from some fringe scientist saying, “Some black holes are the eyes of Great Cthulu, staring at us from beyond time and space.”

        Because everyone knows Chtulhu sleeps in his prison in the city of R’Lyeh, deep beneath the ocean?

      • Murc says:

        That shouldn’t be in the article AT ALL. It is simply wrong.

        How so? I think it’s fair to say that Colorado, among other states, is attempting to defy the federal position on marijuana by legalizing it at the state level and refusing to help the federal government enforce their federal laws, which is in fact the norm among states, which for the most part will not only help the feds enforce their laws, but will mirror-image them and then go out of their way to do so.

        ‘Defiance’ isn’t a legal term.

        There is literally no need for that statement. It literally provides NO information that is useful to anyone.

        You are wrong. It draws attention to the fact, that a lot of people will be drawing on their own anyway, that there are superficial similarities between the two situations. You have to do that before you can reveal the substantive differences; not doing so is bad writing.

        You can maybe make the case that Schwartz did it inartfully, but given the article as a whole I don’t think you can colorably claim he’s attempting to equate marijuana decriminalization with nullification, because he isn’t.

        • Incontinentia Buttocks says:

          This….

          Adam Winkler, a professor of law at the University of California, Los Angeles, who follows nullification efforts nationally, said that nearly two dozen states had passed medical marijuana laws in defiance of federal restrictions.

          Makes about as much sense as a sentence reading…

          Bruce Smith, a professor of law at the University of Woolloomooloo, who follows efforts around the world to commit genocide, said that nearly 260,000 children worldwide die in traffic collisions annually.

          Medical marijuana laws are not an effort to nullify federal law. Period.

          And its not even clear that Adam Winkler believes or says that medical marijuana laws are a form of nullification. That’s just suggested by the way the sentence is constructed.

          On the other hand, it’s entirely clear that the author of the article believes that medical marijuana laws are nullification, because he says as much in his own voice:

          Historically used by civil rights opponents, nullification has bloomed in recent years around a host of other issues, broadly including medical marijuana by liberals and the new health care law by conservatives.

          • How does Murc explain that last quote away, anyway? Really, how can you possibly deny that the article establishes an equivalence between nullification and not-nullification?

            • Johnny Sack says:

              Easy. Murc’s a blowhard, as should be evident by the length of his comments. Every response needs to be the length of a FP post and he can’t resist perseverating when a question’s been asked and answered because he thinks that the fact that he can’t wrap his head around something constitutes an argument.

          • Manny Kant says:

            That sentence is indeed pretty bad.

        • L2P says:

          I think it’s fair to say that Colorado, among other states, is attempting to defy the federal position on marijuana by legalizing it at the state level and refusing to help the federal government enforce their federal laws, which is in fact the norm among states, which for the most part will not only help the feds enforce their laws, but will mirror-image them and then go out of their way to do so.

          That’s NOT TRUE.

          The federal position is that marijuana is a Type I controlled substance that has no medical use and therefore is illegal to distribute, possess, create, etc. The state’s position is that it will not criminalize the use of marijuana. These aren’t even contradictory, let alone showing “defiance.” The Federal government can criminalize anything it wants; that doesn’t force the states to follow suit.

          Just as a quick aside, a state “refusing to help the federal government enforce their federal laws” is an INCREDIBLY COMPLICATED SUBJECT. Do you even have any idea what that means? Can a state license marijuana stores, for example? Or recognize marijuana use as a disability? Does the state need to assist with federal law enforcement actions?

          There are answers to all of these questions, but they’re not easy ones. By simply white-washing this incredibly difficult and complicated issue by saying “the states are defying federal law” by “refusing to help the feds” you are actually confusing the issue more than clarifying it.

          If this was a 10000 word article with plenty of time to explain exactly what the situation is, then fine. Copmare nullification to decriminalization. Otherwise, the oonly way to do it justice is to just point out they’re different.

          • GoDeep says:

            You’re making a distinction without a difference here!

            Coming up with an entire regulatory scheme, including taxes, regulation of the amount of THC per ounce, normalizing how much pot one is allowed to consume before driving, stating age limits on pot, and TAXING it, is a damn site more than “choosing not to criminalize” it. Its legalization in the face of the Supremacy Clause & that is the definition of state’s rights nullification.

            So, no, its not all that complicated. Its just an inconvenient truth.

            • Scott Lemieux says:

              Its legalization in the face of the Supremacy Clause & that is the definition of state’s rights nullification.

              Yeah, no.

              • GoDeep says:

                Ummm, yeah. The only way to argue otherwise is by adopting a definition of ‘nullification’ that’s so strained & narrow that this one law by Missouri is the only example of nullification ever in the history of America!

                Make this argument and you may as well call yourself Humpty “the word means what I say it means” Dumpty!

      • GoDeep says:

        How is the legalization/decriminalization of MJ laws NOT in defiance of federal law? There’s no “medical” exception to fed’l mj laws!

        There are some mj distributors in Cali facing federal charges who would definitely disagree with you!

  5. Murc says:

    On the more substantive issue at hand… you know, I’m bang-on in favor of a good old fashioned symbolic vote and/or law. It forces people to take explicit stands on issues, it sends a message about where your polity stands, all that good stuff. Even if it’s a law or issue that you know is going to be either unconstitutional or pre-empted at a higher level, it can be advantageous to do for either moral or political reasons.

    This, however, is simply irresponsible. It’s one thing to, say, pass a draconian anti-abortion law that you know is going to be unenforcable and unconstitutional until and unless you win the Supreme Court lottery. But this thing takes it to another level. It is actually encouraging people to defy the federal government for reasons that are neither moral nor legal. It’s legitimately dangerous.

    The only thing I can think of is that the people behind this really think they have a shot in the courts. Otherwise, the smart political play would have been to just let Nixon veto it and then hammer him over the head; everyone goes home happy. This is just going to make Nixon look RIGHT when the courts back him up.

    • Murc says:

      Also too: this needs to actually end up in court somehow before it can be struck down, right? I’ve never been to clear on how standing works. Can the US bring suit pre-emptively, or are we going to have to wait until some idiot murders an ATF agent and then claims he was defending his property against a thief before that happens?

      • celticdragonchick says:

        So what do you do when the wingnuts simply ignore the inevitable court ruling and insist they will enforce the law…by force?

        We had an armed standoff between different police agencies for about an hour or so during the Terri Schiavo mess where the court sent marshals to enforce a ruling and Jeb Bush sent state agents to enforce his policy.

        The court won that time. Some folks really do want another go at this armed uprising thing, however…and a lot of them are in elected office.

        • Murc says:

          So what do you do when the wingnuts simply ignore the inevitable court ruling and insist they will enforce the law…by force?

          Honestly, these days, that’s going to depend on the President. If a Democrat, they’ll go the full Eisenhower and send in enough troops to remind these recidivists who, exactly, it was that won that little contretemps a hundred fifty years back.

          If a Republican, there will be much hand-wringing about how, gosh, they’d like to do something, but really it’s all those damn courts fault for being so ACTIVIST all the time, and they can’t do anything because of State’s Rights and Federalism.

    • howard says:

      i was going to say that this effort by missouri republicans deserves a very high level of attention, because it won’t be the last of these.

      restoring nullification to the discussion is the extremely logical outcome of where the gop has been heading ever since the southern strategy.

  6. [...] of blocking confirmation of executive branch nominees that I didn’t realize the “old nullification” is actually back. Scott Lemieux reports on a case of it in Missouri. fb span {width:450px [...]

  7. Stephen Frug says:

    Mostly off-topic, but I gotta say, excellent choice of musical accompaniment.

  8. Murc, why is it important to you that we disregard the mendacity contained in this article?

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