There has been a distinct increase in the rhetoric concerning the 10th Amendment over the last couple of months. I first started hearing real rumblings in about February. It began with the Economic Stimulus Bill and grew from there. While I haven’t verified it, I even heard that the Governor of Texas, while attending one of the Tax Day Tea Parties, used the word secession in his speech. There is no doubt that the federal government’s level of control over the states has grown over the last several years, and the stimulus bill added a significant amount of that in February. At this point I would have to say that the level of power held by the states is at an all time low. This, in my opinion, goes against the very ideals of the founders. Apparently I am not alone in this opinion…
There is a growing movement in this country for states to take back power and control from the federal government. The recent revival of the 10th Amendment on both popular and political landscapes has underscored the ever-present demarcation between liberty and statism. It is a fact that the federal government is out of control with spending, expansion, and exertion of control. Americans are becoming fed up with the federal government’s expansion of power, and states across the country are fighting back. At least 35 states have introduced legislation this year that seek to take back their power under the Tenth Amendment to regulate all matters not specifically given to the federal government by the Constitution. So let’s be clear about what we are discussing. The 10th Amendment says:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
I don’t think anyone will argue that if this is the definition, the federal government has way overstepped its bounds in terms of power. But where did this all begin? Where is the point that the Federal government began to take over and deny states the right to act as they are entitled under the Constitution?
Many point to the Civil War. The southern states, being oppressed by tariffs imposed by the northern states, made a move to either eliminate the tariffs or secede from the Union. Those of you reading on this site have seen the discussions already around this and are well aware that the Civil War had nothing to do with slavery until the very end. The problem was that the US government refused to acknowledge the individual state’s rights to do exactly what the colonies did when England’s tariffs became too much to bear. And as many of you have pointed out, it culminated with Lincoln’s Gettysburg address, in which he stated “The United States” instead of “These United States”, and such it was from that point forward.
The New Deal, as we covered in the “March Towards Socialism” series, resulted in massive increases in the power of the Federal government over the states. There were many reasons for this and we won’t cover them all here. Not only did the programs under Roosevelt cause problems for state’s rights advocates, but Roosevelt also got his people into the courts. That is a whole story in itself, but the result was that the Roosevelt court changed things dramatically.
According to Martin Flaherty, a professor of constitutional law at Fordham Law School, “From 1937 to 1995 there is not one instance of the Supreme Court knocking back Congress. In the Constitution the interstate commerce clause gives Congress the right to regulate commerce between the states. That gives them a lot of power. There were questions of how far they can reach, but then comes the New Deal, and Roosevelt gets all these picks on the [Supreme] Court, and they come upon a theory whereupon congressional power is almost infinite.”
Since the time of Roosevelt, the court’s interpretation of the constitution has had the effect of dramatically decreasing the rights of the states. Those who agree on that side of the issue point to the argument that the size and scope of issues today precludes the state’s abilities to be able to operate with any sort of autonomy. I can see their point on some of the very big issues, like the economy. However, I tend to disagree on most things. For example, there seems to be no issue with individual states deciding on their own whether or not to allow gay marriage (of course by no issue, I mean so long as the people of the state vote for it. Voting against gay marriage results in claims of civil rights violations. See CA Proposition 8 ). If the age of drivers and the legal age for marriage can be regulated at the state level, why can’t who gets married?
The list of areas where the government has overstepped its bounds in regard to the states is long and steeped in failure, for the most part. TARP is a recent example. But that deals with the economy, so I am willing to listen to opposing thoughts on that. Public education is a big example. Federal control over public education is not mandated in the Constitution, but that has not stopped the federal government from putting their hands in that cookie jar (see: No Child Left Behind… talk about a failure). The stimulus bill is a GIANT example, hence why so many states are rejecting TARP and stimulus money.
In Utah, 67 percent of the state’s land is controlled by the federal government through wilderness preserves, limiting state leaders in their bid to fill government coffers through oil and natural gas drilling after Interior Secretary Ken Salazar cancelled 103,000 acres of leases this year. Federal government exercising control over state lands and not allowing that state to do what is in their best interests.
In fact, environmental laws and the seizing of land for the federal government are two of the biggest issues in terms of state’s rights today. For example, federal law stops farmers in Idaho from shooting wolves that are preying on their livestock. Endangered Species protection is used to prevent states from undertaking many endeavors that would relieve the nation’s dependence on foreign oil. It is a means of controlling the states, not protecting some bird or turtle.
Want a great example of how the Federal government usurps state’s rights? The drinking age is set by individual states. That is a fact. So how is it that the Federal government was able to have a “national” drinking age? Simply put, the federal government, which DOES control moneys allocated to the maintenance of interstate highways, told the states that if they didn’t raise it to 21 that the government would cut their available highway money. Federal extortion.
In fact, when you get right down to it, according to the tenth amendment, the Federal government is doing more that is unconstitutional than they are doing that is within their rights. The Federal government has no rights under the Constitution to set up the National Endowment for the Arts, Medicare, Social Security, or The Department of (UN)Education.
So many states have had enough, and are beginning to fight back. Montana Governor Brian Schweitzer recently signed into law a bill authorizing the state’s gun manufacturers to produce “Made in Montana” firearms, without seeking licensing from the federal Bureau of Alcohol, Tobacco, Firearms and Explosives. Similar laws are being considered in Utah, Alaska, Texas and Tennessee. The Montana law will, of course, end up in the courts, where states’ rights folks hope judges will uphold constitutional rights. I wouldn’t hold my breath, given the trends since 1937 noted above.
“The balance of power between the states and the federal government is way out of whack,” said Georgia state Senator Chip Pearson.“The effect here is incalculable. Everything you do from the moment you wake up until you get to bed, there is some federal law or restriction.” In Georgia, the State Senate passed 43- to-1 a motion that said Georgia can declare any federal criminal law null and void unless the U.S. Constitution specifically allows Congress to outlaw that conduct. The only acts the Constitution allows Congress to prosecute are treason, counterfeiting, piracy, felonies on the high seas, international offenses and slavery. In this particular case, the motion didn’t pass the Georgia House.
Another state standing up to some of the federal government’s increase in power comes from Maine. The Maine State Legislature fought the Department of Homeland Security on the Real ID act, aBush-era law that will require states to issue federally regulated identification cards, complete with biometric data and stringent address checks (Hello Big Brother). Facing stiff resistance in Maine, the government decided to postpone their fight, and soon other states were fighting the same fight. The deadline for states to comply with Real ID has now been pushed back until 2011.
There are many who will claim that this is a Republican issue. In fact, my bet is that our resident liberals will come in and blast this article (while telling me I have no facts and live in la la land). But the reality is that it is an issue that belongs to everyone. George Bush was no better for state’s rights than any other President in the last 80 years. Reagan at least believed in state’s rights and limiting federal power, but could accomplish nothing with an opposition Congress. That puts him at the top of the list of least offensive to the 10th Amendment. President Barack Obama, in his short tenure thus far, is in my opinion, vying for the worst violator since FDR.
So the question of the day is whether or not the state’s have the ability to push back on the Federal government and reclaim some of their sovereign rights? Many are finally taking the step of turning down Federal money. And as noted above, 35 have some sort of legislation in the works or on the books. Are they wasting their time? It seems that many states are finally fed up, and the people are fed up too. So does this movement have any legs?
So that folks don’t get all upset with me, I have bolded the areas in this post that were found in an article written by James Osbourne. Thank you to PeterB for pointing out that I had forgotten to add this at the bottom of the article when I posted it at 4:45am, lol. You can find them in the following article.