Friday, April 30, 2010

10th Amendment Resolutions: Are They All Bark and No Bite?



(Originally published in the May 2009 issue of "The Free Kansan". Republished here with permission.)

By Matthew Collins & Joel Gibbs
http://www.collinsforgov.com/

The Tenth Amendment. “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.” This simple amendment established decisively that the full extent of federal power was limited exclusively to those powers that were expressly stated as belonging to the federal government. It further established that all governmental powers that were delegated to the federal government of the United States, were originally powers that the people of each State had previously delegated to their own State Government or retained as a power reserved to themselves as citizens of that State. The effect of this is that the people and the States may at any time reclaim any or all powers that they had previously delegated without permission from that agent to which those powers had been delegated.

It must be remembered that each State established itself as a sovereign State in and of itself prior to being admitted into the federal union of sovereign States known as the United States of America. There is no provision within the federal Constitution for the admittance of any territory or possession into the union, only the admittance of States is provided for; therefore, each territory or possession before entering the federal union of the United States must first, for however brief of a time, organize itself as a sovereign State and adopt its own constitution in the form of a representative republic before it can even be considered for admittance into the union of States by the Congress of the United States. This means that every State that now makes up the United States of America had established itself first as a sovereign, free and independent Nation-State prior to petitioning the Congress of the United States for admittance into our American league of equal States by delegating some of the powers of the State to the federal government and agreeing to certain terms limiting the sovereign powers of the State for the preservation of the federal system.

Because of the nature of our federal system, the Tenth Amendment is each State’s protection from any and all usurpations, tyranny and abuses of delegated powers by the federal government against the sovereignty, jurisdiction and rights of each State that makes up the federal union. Each State has the inherent right to decide for itself the limits of the powers it delegated to the federal government at the time the State acceded to the federal Constitution. This makes sense since each State had to decide for itself to what extent its own sovereign powers were delegated to the federal government when it agreed to the terms and conditions of federal union.

With the right of each State to decide for itself the proper extent of federal power firmly established, whenever the federal government enacted legislation infringing upon the rights of the States, the States drafted resolutions that nullified that federal legislation within the boarders of the State drafting such resolutions. This was an act of State sovereignty asserting the State’s right to govern itself within its own boarders. Perhaps the most famous examples of this are the Virginia and Kentucky Resolutions passed in 1798 by Thomas Jefferson and James Madison respectively, in response to the Alien and Sedition Acts. These types of resolutions passed by some States were usually enough to cause the federal government to repeal such legislation or to back down from its assault upon the rights of the States and the rights of the people thereof. Resolutions such as these caused other States to examine the laws and forced the federal union to reach a consensus on the constitutionality of those laws.

Occasionally resolutions weren’t enough and States threatened to reclaim all of their rights that they had delegated to the federal government and return to their previous condition as an independent, free and sovereign Nation-State apart from the federal union by announcing their secession from the United States and renouncing their consent to union. In most cases, this comprised of mere threats to secede; although several States in the Northeast who were opposed to the War of 1812 met in convention with the expressed intent of secession. Although it was an established right of each State, recognized as such in both the northern and southern States equally, it wasn’t until 1861 that South Carolina actually made good on its promise and carried through with the threat of secession. Prior to this date, the States in the Northeast had threatened on three separate occasions to secede from the South and it is ironic that it would turn out to be the South that would actually be the first to exercise this right previously threatened by the North. In most cases though, the threat of secession served as a wake up call to the federal government that they were overstepping their bounds and needed to return within their properly defined and enumerated powers found in the constitution. The right of secession is a State’s last resort for self-defense against federal usurpation, tyranny and abuse of governmental powers. Any State compelled by the use of force (military or otherwise) to remain a part of a union of States against its well (or against the will of the people thereof) is the antitheses of liberty and wholly destructive to the principle upon which the United States, and each State, are founded: -- namely government by the consent of the governed.

With this history of State’s rights and the Tenth Amendment, how do modern day Tenth Amendment Resolutions compare with their older counterparts from over a century ago? Do they still have the same affect on controlling the federal government and keeping federal powers within their properly defined limits as the writers of the Tenth Amendment intended?

To examine this question, let’s look at a Tenth Amendment Resolution that has been passed by Oklahoma. It is similar to others that have been proposed by some of the States of the Union in recent years. We will see if they are all talk and no bite and examine their effectiveness as checks against abuses of federal power.

The text of Oklahoma’s Resolution is given below:


STATE OF OKLAHOMA

1st Session of the 52nd Legislature (2009)

House Joint Resolution 1003 By: Key

AS INTRODUCED

A Joint Resolution claiming sovereignty under the Tenth Amendment to the Constitution of the United States over certain powers; serving notice to the federal government to cease and desist certain mandates; providing that certain federal legislation be prohibited or repealed; and directing distribution.

WHEREAS, the Tenth Amendment to the Constitution of the United States reads as follows:

"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."; and

WHEREAS, the Tenth Amendment defines the total scope of federal power as being that specifically granted by the Constitution of the United States and no more; and

WHEREAS, the scope of power defined by the Tenth Amendment means that the federal government was created by the states specifically to be an agent of the states; and

WHEREAS, today, in 2009, the states are demonstrably treated as agents of the federal government; and

WHEREAS, many federal laws are directly in violation of the Tenth Amendment to the Constitution of the United States; and

WHEREAS, the Tenth Amendment assures that we, the people of the United States of America and each sovereign state in the Union of States, now have, and have always had, rights the federal government may not usurp; and

WHEREAS, Article IV, Section 4 says, "The United States shall guarantee to every State in this Union a Republican Form of Government", and the Ninth Amendment states that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"; and

WHEREAS, the United States Supreme Court has ruled in New York v. United States, 112 S. Ct. 2408 (1992), that Congress may not simply commandeer the legislative and regulatory processes of the states; and

WHEREAS, a number of proposals from previous administrations and some now pending from the present administration and from Congress may further violate the Constitution of the United States.

NOW, THEREFORE, BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES AND THE SENATE OF THE 1ST SESSION OF THE 52ND OKLAHOMA LEGISLATURE:

THAT the State of Oklahoma hereby claims sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States.

THAT this serves as Notice and Demand to the federal government, as our agent, to cease and desist, effective immediately, mandates that are beyond the scope of these constitutionally delegated powers.

THAT all compulsory federal legislation which directs states to comply under threat of civil or criminal penalties or sanctions or requires states to pass legislation or lose federal funding be prohibited or repealed.

THAT a copy of this resolution be distributed to the President of the United States, the President of the United States Senate, the Speaker of the United States House of Representatives, the Speaker of the House and the President of the Senate of each state's legislature of the United States of America, and each member of the Oklahoma Congressional Delegation.

52-1-5082 <11/17/08>

As is customary with resolutions, it starts out with a list of facts or evidences. These sound strong and are in fact strong and sound footing from a Constitutional sense. In this first part, the State has done a lot of “barking” and laying the foundation for its case and what comes next.

After that it goes on to state “…be it resolved by [the State Government]: That…”. And this is where the State lays out its plan of action and states its demands and details what the State will do if its demands are not met. These are the terms and conditions of the resolution.

So what are these demands? First, the State of Oklahoma claims its sovereignty under the Tenth Amendment. Next, Oklahoma gives “notice” and demands that the Federal Government cease and desists its mandates that are beyond the scope of its constitutionally defined powers. After that, Oklahoma demands that federal legislation infringing upon State rights, be repealed or prohibited. Then lastly, it states that a copy of this resolution be distributed to all the States and to the heads of the legislative and executive departments of the Federal Government.

Now there is a lot of “bark” in this resolution. However, what does Oklahoma plan to do if the Federal Government decides to file the resolution away in the recycle bin and disregard Oklahoma’s demands? Where is the bite?

It is foolish to believe that a “Government Gone Wild” will suddenly act within its clearly defined role when it has a long history of acting outside of its proper jurisdiction, simply by being told “I’m tired of this and you need to straiten your act up and fall in line”! Anyone who believes that obviously doesn’t have kids nor any experience being around anyone who has stepped out of line. Parents would be grateful if all they have to do is say “stop that” when their kid has been acting up for years without any discipline and have their child fall back in line immediately. It is more realistic to believe that that child needs a good spanking before it will pay attention to anything the parent says who has been very lax in its duties and in effect ruled and controlled by the child.

Our Federal Government is an adolescent teenager that has manipulated its parents (the States) and it has been used to getting by violating the rules. We now have a struggle on our hands to bring our child (the Federal Government) back under our “house rules” and teach it some manners. Simply saying “stop that” isn’t going to work. These resolutions need to be coming out and supported with very strong consequences if the Federal Government fails to act in accordance with the demands of its “parental” States!

If we are serious about returning our federal system to its proper form, then it is time for the States to get some backbone. It’s time for our States to start naming the consequences for the Federal Government’s failure to respond to the demands of the States. And it is time for the States to grab a switch from the nearest tree and take the Federal Government behind the woodshed for some old-fashioned “quality time”!

http://www.collinsforgov.com/

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