We don’t need no stinkin’ Supreme Court!

“I do solemnly swear, or affirm, that I will support the Constitution of the United States and of the state of Missouri…” — Oath of office for members of the Missouri House of Representatives, Missouri Constitution

“The judicial Power of the United States shall be vested in one supreme court and in such inferior courts as the Congress may from time to time ordain and establish…” — United States Constitution, Article III, Section 1.

“We do not need to wait for nine people to tell us what the constitution says or does not say.” — Rep. Kurt Bahr (R-St. Charles)

Rep. Kurt Bahr is finishing his first term in the Missouri House. He’s an Air Force veteran with a degree in history and political science from Oklahoma Wesleyan University and a Master’s Degree in Public Policy from Regent University. He’s a small businessman in O’Fallon. He’s a former intern of Congressman Todd Akin. And he doesn’t like the Patient Protection and Affordable Healthcare Act at all. In fact he dislikes it so vigorously that he thinks anybody who implements any part of it in Missouri should be charged with a crime. The House has passed his bill that would do that without waiting for the U. S. Supreme Court to rule on the constitutionality of the bill or any part of it.

When he was asked if the House should not wait for the court to rule before taking action on his bill, Bahr responded:

“The Supreme Court is not necessarily the sole arbiter of what is or is not constitutional. The constitution is a compact between states. We, the states, created the constitution, created the federal government. It is our job to recognize what is and what is not constitutional. We do not need to wait for nine people to tell us what the constitution says or does not say.”

We’ve watched hundreds of lawmakers serve in the general assembly since the Missourinet went on the air just in time for the 1975 legislative session. This is the first time we’ve heard anybody, let alone somebody with a political science degree, who had taken an oath to support the Constitution of the United States (that says the judicial power of the country will be vested in the court system) claim that it is the state’s “job to recognize what is and what is not constitutional.”

Bahr’s position was called a “nullification act” 180 years ago when South Carolina declared the power of the federal government to set tariffs in 1828 and in 1832 was unconstitutional and therefore was null and void in South Carolina. South Carolina started preparing to resist a military invasion by the federal government to enforce the tariffs. In Washington the President was authorized to use military force if necessary to enforce the law. He also was authorized to negotiate a tariff more friendly to South Carolinians. The Jackson administration negotiated more favorable tariffs to cool things off in South Carolina. The state’s convention reconvened and repealed the Nullification Ordinance. The states rights people claimed victory. The federal government kept tariffs of a sort so Washington could claim victory and a Civil War was averted for the time being.

“The constitution is a compact between states…” — Rep. Bahr

Rep. Bahr, who has a degree in history, might wish to read some additional history such as the letter of transmittal from the constitutional convention to the President of Congress. In it, convention president George Washington wrote, on Sept. 17, 1787:

“It is obviously impracticable in the Federal Government of these States to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all … In all our deliberations on this subject, we kept steadily in our view that which appears to us the greatest interest of every true American, the consolidation of our Union, in which is involved our prosperity, felicity, safety — perhaps our national existence.”

Perhaps someone with a degree in history and political science might be able to correct someone with only a minor in history that George Washington was not, in fact, speaking of a “compact” between states. Washington, instead, speaks of the document as being “the greatest interest of every true American, the consolidation of our Union.” Neither of us was present when the document was written defining the nature of our national government. But George Washington was.

The “compact between states” was the Articles of Confederation and Perpetual Union. It was a document in which the thirteen states formed a confederation of sovereign states. The Articles were important in the years after the Declaration of Independence to prove to the world that this was a legitimate nation with authority to negotiate internationally and, if it so chose, to wage war — which it had chosen to do. Rep. Bahr would have liked the Articles. They provided for no judiciary. States did not have to “wait for nine people” to tell them what was constitutional.

But that system didn’t work. A convention called to find ways to improve the Articles decided that the only thing to do was throw them out and create a Constitution. The end result was a document that reserved some powers to the states and some to a national government. One thing it reserved to the national government was a group of “nine people” who would make the ultimate decision about what would be constitutional.

Article I of the Constitution created the Congress. Article II created the Executive branch. Article III says, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

So let’s see if we understand Rep. Bahr. He has sworn to uphold the Constitution of the United States. The Constitution of the United States says there are three separate and co-equal branches of government, legislative, executive, and judicial. Rep. Bahr argues that a legislature in one of the 50 states can make a judicial ruling as it affects only the people of that state. (The PP&ACA is so unconstitutional that anyone implementing any part of it is a criminal.) It appears he should start getting ready to issue warrants because some parts of the Affordable Healthcare Act already are being implemented in Missouri.

There is another part of the Missouri Constitution that might add some spice to the discussion. The last words of Article III, Section 15 of the state constitution says “Any member convicted of having violated his oath or affirmation shall be deemed guilty of perjury, and be forever disqualified from holding any office of trust or profit in this state.”

Believe it or not, one of the great joys of being a statehouse reporter is having this kind of stuff unfold in front of you and then getting to report it and then wondering what kind of discussion about this Rep. Bahr would have with George Washington.

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7 thoughts on “We don’t need no stinkin’ Supreme Court!

  1. Good for Representative Bahr. It’s fairly easy to argue the legality of any position, putting your own interpretation in as the final say when in fact, you have no idea what would be decided in an actual court of law. Your entire point is actually that you know better than Representative Bahr and how foolish he is to attempt to protect states’ rights. One of the great joys, as you term it, is to be a secondhand pundit who uses your ability to “report” to try and impose your opinion on others. If you are a constitutional scholar who has the answer to many of the pressing issues of the day perhaps you should run for office. I greatly admire Kurt Bahr, as do many others.

    • It’s easy to argue the legality of any position. It’s also easy to argue that a position is wrong or dumb based on a reading of the actual, you know, facts. You might want to re-read the article, or better yet, the actual Constitution. It’s stated pretty clearly that the Supreme Court is the final arbiter of legality, not a state legislature or legislator.

      Sometimes there’s a difference between what you want to be true, and what is.

  2. Mr. Priddy neglected to point out that most of the language of Rep. Bahr’s bill is quoted almost verbatim from the nation’s very first nullification bills written in 1798 by none other than James Madison and Thomas Jefferson. It was Madison – the Father of the Constitution! – who in the Virginia Resolutions wrote about that document being a compact among the states. I’d say that puts Rep. Bahr in some pretty fair company.

    • Madison said nullification was unconstitutional in the 1830s crisis. He suggested in 1800 that his Virginia resolution wasn’t authoritative, but was rather suggestive and designed to create debate. This is a far cry from what the MO house has done, which criminalizes putting the healthcare law into effect.

    • Amen! I was going to write a comment on the Virginia and Kentucky Resolutions myself and then I read this. For what it’s worth, I have a degree in history and a law degree and I don’t believe that Rep. Barh’s position is untenable. It is certainly outside the current mainstream, but as libertyandjustice notes, Thomas Jefferson (author of the Declaration, first Sec. of State, vice-president and president) and James Madison (Father of the Constitution, president) both believed that states, as sovereign entities and parties to the Constitution, had as much right as one branch of the federal government to decide on issues of constitutionality. And let’s not forget the 9th Amendment, which is certainly relevant to this debate. I congratulate Rep. Bahr and the Missouri House.

  3. Right on, Bob. To paraphrase Sen. Moynihan, every person is entitled to their own opinion, but not their own facts. Every student of political science and/or history knows that the position Rep. Bahr has taken on this issue is wrong from a consitutional standpoint. I can appreciate the differences of opinion about health care reform; the precident of judicial review, however isn’t a matter of opinion — at least not anymore.

  4. By putting this in a blog and not trying to make a news story out of this, Bob has done nothing wrong as a reporter.
    I feel like it would be one thing if Rep. Bahr were trying his hardest to keep the ACA out of Missouri, but instead of toeing that thin line, he has taken a giant leap across it.
    I’m proud of Bob for proving why we need to hear from out Supreme Court before a bill like this should even be considered.
    You can’t hold on to Supreme Court Rulings that help your case, and then completely ignore that very same panel when it’s inconvenient to your cause.

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