A Republican state representative in Utah has put forward a proposal that could have the effect of writing the completely discredited theory of nullification–the idea that a state can simply refuse to enforce a federal law or court decision that it considers unconstitutional–into the state constitution. Specifically, he wants to require state officials to swear to defend the Utah constitution first, then the federal constitution.
As in most states, when state officials are sworn into office in Utah, they are required to swear to defend their state’s constitution where it doesn’t conflict with the federal constitution. However, that didn’t sit well with Republican John Knotwell, who represents part of southwestern Salt Lake County in the state house. Last week, a proposal came forward in the state house Revenue and Taxation Committee to amend the state constitution in order to replace the words “this state” with “the State of Utah” in the oath. Knotwell moved to amend it to switch the order of the phrases “the Constitution of the United States” and “the Constitution of the State of Utah.” Knotwell’s proposed amendment read:
“All officers made elective or appointive by this Constitution or by the laws made in pursuance thereof, before entering upon the duties of their respective offices, shall take and subscribe the following oath or affirmation: ‘I do solemnly swear (or affirm) that I will support, obey, and defend the Constitution of the State of Utah and the Constitution of the United States, and that I will discharge the duties of my office with fidelity.”
The bill’s author, Republican Kraig Powell, said that he didn’t intend to send sweeping messages with his original bill, but had no objections to Knotwell’s amendment. After two attempts, the amendment passed 7-5. One of the nays, Republican Jon Stanard, tried to remind his colleagues that the federal constitution is the “supreme law of the land.” However, one of the ayes, Republican Brian Greene, said the amendment was needed in order to ensure that “the federal Constitution does not run roughshod over the state Constitution.” As Greene sees it, the state legislature has a duty to protect the state from the federal government. While Right Wing Watch made it appear that Greene was the driving force behind this amendment, it turns out Knotwell was the person who proposed it.
The apparent “logic” behind Knotwell’s amendment is almost exactly the same used by proponents of nullification. Before the Civil War, there were numerous attempts by states to nullify federal laws rather than take the step of challenging their constitutionality in court. It seemed that the Civil War ended this nonsense. However, a number of Southern states tried to nullify Brown v. Board of Education on the grounds that its order to desegregate schools was unconstitutional. The Supreme Court firmly disposed of this issue in 1958, when it unanimously held in Cooper v. Aaron that states do not have the right to refuse to enforce federal laws simply because they don’t agree with them.
Here’s the frightening part about this–there’s actually a good chance this amendment could get on the ballot. The Republicans have owned Utah’s legislature for decades, and currently have large majorities in both chambers. It has to be passed with a two-thirds majority in both the state house and state senate before going before the voters in a referendum. The mere fact that such an amendment could even potentially get on a statewide ballot anywhere in this country is, to put it mildly, disgraceful. To further underline just how out to lunch this is, even the Federalist Society, the nation’s main bastion of right-wing judicial thinking, agrees that states do not have the power to nullify federal law. The Federalist Society, people.
A couple of months ago, I mentioned that prominent Christian apologist Frank Turek suggested that if the federal Supreme Court ever decided that LGBT couples had the right to marry, a state could simply refuse to abide by it. I had a hunch that someone would try to take Turek’s advice. Now it looks like that’s happening in Utah.
