February 9, 2010
Federal Overreach and the New States' Rights Movement
Ever since the election of Woodrow Wilson, America has been concentrating more and more power and control in the federal government. With the 2008 elections, the century-long creep towards statism accelerated. America is not only on the wrong track -- she's on an express train to Big Government hell.
One bright spot is that the states are standing up to federal overreach. We see this in the preemptive gun law recently enacted in Montana. Kahrin Deines writes:
Still, much bigger prey lies in Montana's sights: a legal showdown over how far the federal government's regulatory authority extends."It's a gun bill, but it's another way of demonstrating the sovereignty of the state of Montana," said Democratic Gov. Brian Schweitzer, who signed the bill.
Progressives are troubled that this is nullification, which "holds that state legislators have the capacity to invalidate federal laws to which they are opposed." Nullification goes back to our founding, and latter-day nullifiers cite the 10th Amendment. Providing historical context (and some good links), Chris Weigant contends that
... calling the Tenth Amendment movement a bunch of nutjobs may be premature. They consider themselves in the company of Jefferson and Madison, after all. And they have a few recent Supreme Court decisions to give them hope.
Josh Eboch, a proud "tenther" with the Tenth Amendment Center, writes:
Yet, from the Fugitive Slave Act to REAL ID, American history is replete with examples of states successfully asserting their sovereignty in constitutional disputes with the federal government. And there is every reason to believe that they could do so again with regard to health care, should it prove necessary.
And the states are resisting Obamacare as, in general, a 10th Amendment violation. Some states also object to the specifics of Obamacare, such as the individual mandate, which Texas Attorney General Greg Abbot addressed in this open letter. Columnist George Will weighs in on judicial review of the individual mandate:
The latter kind of conservatives are more truly conservative than the former kind because they have stronger principles for resisting the conscription of individuals, at a cost of diminished liberty, into government's collective projects. So a constitutional challenge to the mandate serves two purposes: It defies a pernicious idea and clarifies conservatism.
Many are appalled by the sleaze of the Nebraska Compromise, which secured Sen. Ben Nelson's key vote, and the Louisiana Purchase, which secured Sen. Mary Landrieu's. (Could this be vote-buying?) The feds have succeeded in pitting state against state. So state AGs are getting restive, and they may sue over unequal treatment.
In a feisty article, John Boldin writes:
Regarding nullification and health care, there's already a growing movement right now. Led by Arizona, voters in a number of states may get a chance to approve State Constitutional Amendments in 2010 that would effectively ban national health care in their states.
Indeed. On February 1, Virginia's Senate passed a bill to outlaw the individual mandate, which seems destined to be signed by their new GOP governor. "Lawmakers in 35 states have filed or proposed amendments to their state constitutions or statutes rejecting health insurance mandates," reports the Associated Press. The states seem to be spoiling for a showdown with the feds over the issue of state sovereignty.
The states' (and the Tea Party movement's) growing resistance to federal overreach may be akin to the Article V movement, which wants a constitutional convention. Larry Sabato lists this as the last item in his 23 proposals to revitalize the Constitution: "23. Convene a new Constitutional Convention using the state-based mechanism left to us by the Framers." The mere threat of an Article V convention might be enough to get Congress to be more responsive to the will of We the People. As Attorney John Armor recently explained at American Thinker, the 17th Amendment was ratified only when Congress was threatened with an Article V convention.
That the states are finally asserting their sovereignty is heartening. But to fully restore their sovereignty and the lost balance between state and federal governments, the states might urge repeal of the 17th Amendment (which this writer has urged) and return to the original arrangement where state legislatures elect U.S. senators.
If the states want to see what loss of sovereignty is all about, then they should look at what's happening to the member states of the European Union. These once-proud states were at one time sovereign nations, even empires. The progressives in Washington want the member states of America to be just like those in the E.U. -- shorn of sovereignty.
It's taken America a century to get in this ditch. Getting out won't be easy. But it is the solemn duty of the states to resist federal overreach.
What nullification and states' rights are all about is constitutionalism, rule of law, and federalism -- the bedrock of America's system.
(Those who need to relearn what America's system is all about might start by viewing these five videos from Judge Andrew Napolitano; they're terrific.)
Jon N. Hall is a programmer/analyst from Kansas City.