Suddenly, it appears that most extreme elements of our political debate have discovered the Tenth Amendment in arguing for either secession or a type of state independence that borders on separatism. This video of a Texas secessionist rally is shocking given the chants of “we hate the United States” but it is most telling in recognition that “legal secession” it no longer a serious claim. Others do not want to secede but rather to use the Tenth Amendment to bar such things as the national health bill from closing their borders. I discussed this story last night on this segment of the Rachel Maddow show.
The most striking aspect of this Texas rally is that many of the speakers have given up on claiming a legal avenue for secession — a ridiculous claim made by Gov. Perry out of a shocking level of ignorance of his own constitution and state history. Indeed, the speakers (after the unhinged man shown in the video clip above) admit that they are calling for a “bloody civil war” and not some constitutional transition:
Other states are considering less radical and bloody opposition to the health care bill or taxation. Some like Georgia are calling for challenging the national health care plan on the basis for the Tenth Amendment.
Sens. Judson Hill (R-Marietta) and Chip Rogers (R-Marietta) have been joined by members of the legislator to seek an amendment to their Constitution to allow Georgia to invoke the 10th Amendment to the U.S. Constitution to oppose the use of the health plan in Georgia.
On its face, it is a rather bizarre bill. If the 10th Amendment says what these legislators think its says, they would not need to amend their state constitution — they could stop the program on the basis of the federal constitution.
However, to do so would require the Supreme Court to reverse decades of rulings. It is extremely rare for the Court to overturn legislation on this basis. Having said this, there is a great difference between this argument and the extremists in these Texas videos. Federalism is an important part of our Constitution and many of us are great believers in the rights of the states to go their own way on policy and programs. Indeed, I have long advocated greater protection of states in their fight against the federal government in areas like medical marijuana and assisted suicide laws, here.
The Tenth Amendment, however, reads as a more robust protection than the Court has been willing recognize. The amendment itself proclaims: “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.”
Yet, the Court has rarely used the Tenth Amendment to strike down laws. For example, when the Court protected federalism principles in United States v. Lopez, 514 U.S. 549 (1995) — invalidating the Gun-Free School Zones Act of 1990 (the “Act”), 18 U.S.C. § 922(q) — it did so under Article I and the commerce clause.
The Court did rely on the Tenth Amendment to strike down the law in New York v. United States, 505 U.S. 144 (1992), involving a provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985. This provision required states to enforce the federal law. This was the similar result as Printz v. United States, 521 U.S. 898 (1997), where the Court held that the Brady Handgun Violence Prevention Act violated the Tenth Amendment by requiring states to enforce the law.
Yet, most cases follow the result in Wickard v. Filburn (1942), where the Court rejected challenges to federal wheat regulation.
The problem with this claim is multifold. First and most notably, the law hasn’t been fully drafted, let alone enacted. Second, if it does contain an “option” for citizens, it is hard to see the state sovereignty objection when citizens can refuse the option. Third, like social security and other social programs addressing national problems, it would be upheld as a legitimate exercise of the national legislature.
This does not mean that the White House might not blow it in the drafting. Requiring states to enforce aspects of the law can be problematic, as shown above. However, the Court has upheld the right of Congress to pressure states into voluntary cooperation by threatening to withhold federal funds.
Given the prior case history, a Tenth Amendment challenge would appear highly unpromising absent a serious mistake in drafting. The Court has left such questions to the political process and critics have certainly done well in that arena thus far. However, if the Administration passes a national health plan with a public option, it could be drafted to pass the tests previously laid out by the Court.
For the Georgia story, click here.
Martin G:
“The right to secede is found in the second ammendment, if you look.”
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I looked,and ah … no it’s not. The Second Amendment reads in the most accepted form:” A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.”
DC v. Heller has established that this is a personal right and not a collective one. And I see no reference to secession at all, so if you somehow are implying a personal right to secede by some contortion of the words, your history seems about as good as your legal analysis.
Martin:
“mespo says, quoting Lincoln
You have no oath registered in heaven to destroy the Government, while I shall have the most solemn one to ‘preserve, protect, and defend it’.”
John Yoo made a similar misquote in the Chapman debate. The oath is not to protect the government (as in the Lincoln quote) or protect the country from attack (as John Yoo said), but to protect the Constitution.”
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That is not a “misquote” since it is precisely what Lincoln said. You seem to be drawing a distinction between the government and the founding document which Lincoln rightly did not do. Yours is a distinction without a difference at best or sophistry at worst. Only an illegitimate government is at odds with the Constitution since the authority for all legitimate US governments are specifically founded and validated by that document. Defending one presupposes defending the other except in the instance I have mentioned.
Martin G.
If they still have it in the Constitution and they still do,it is inconsistent with the 10th Amendment. I still believe that this right was abrogated when they were Forced to rejoin the Union after the Civil War. This would be applicable under the 14th Amendment Section 5.
The right to secede is found in the second ammendment, if you look.
mespo says, quoting Lincoln
John Yoo made a similar misquote in the Chapman debate. The oath is not to protect the government (as in the Lincoln quote) or protect the country from attack (as John Yoo said), but to protect the Constitution.
Chapman Debate: http://tinyurl.com/YooAtChapman @57:40
Interesting point, anonymously.
Texas was a state in 1845, before the Civil War. If they has a right to secede before the war, it is not clear why they would not have a right to secede after the war. Wasn’t rejoining the union a restoration to the status quo ante bellum?
The South apparently had the ability to secede, and was recognized as having seceded buy the North, since after the Civil War, the north established conditions for reunification.
Even if Texas had the right to secession in its constitution when it was annexed by the US to help fight the Mexican War. I do believe that this right was abrogated when they rejoined the Union at the end of the Civil war.
Link: http://www.texassecede.com/faq.htm
JILL: Absolutely correct. Our Guilded Age II Plutocracy is wholly behind the divisive chaos in this Country, as owners of the elements of the industrial-military-media complex and as the corporate masters of the Senate-House members of what should be aptly identified as the Plutocratic Party but chooses to mask itself as the Republican Party.
The alarming result is that the Country is filled with Dupes and Cretins who are accepting without question the bilge being circulated by the media propagandists (think Fox) on behalf of the Party and failing through their blind ignorance to recognize that they are cheering and voting against their own economic and social and political interests.
I want Texas to secede. It would improve the US greatly and immediately.
I’d like Oklahoma to go with them.
We’d be getting rid of millions of morons and fascists all at once, and our national median IQ would go up by several points. What exactly is the downside?
“The United States is a nation of laws: badly written and randomly enforced.”
Frank Zappa (1940 – 1993)
Prior to the Civil War, my understanding is that many in the North argued for secession.
I think that there is a clear right to secession, based on
1) The “alter or abolish” clause in the Declaration of Independence which the Declaration claims is a “self evident” truth, and
2) The Declaration of Independence is, itself, a secessionist document.
I’m approaching all the health care high-jinx as a form of political propaganda/theater. It is my belief that were a true investigation conducted one would find the oligarchy behind most of the stuff we’ve been seeing. Not that citizens have been unwilling to go along, but I can’t help feeling we are watching people being whipped up in a frenzy and this worries me greatly. I’ve been reading up on corporate/govt. manipulations of groups of people and I feel this is what we’re seeing.
Notice that nothing is really being done on health care, not by most of Congress, not by the President. There is no Obamacare, there. Progressive members in Congress who are trying to hold the line on national healthcare are being attacked by Republicans and the WH in equal measure. So why is it that the WH and Repbulicans are united as one in what should be “opposite marriage”, before god? Isn’t that extremely strange? Not really if you see where the money comes from. Big Pharma and Big Insurers stand to make a windfall on the deal and they are contributing/have contributed handsomely to the president and memebers of congress.
So I would love to see a real investigation. I believe people are being whipped up in a propaganda campaign against their own and other’s best interests. If we ever got such a real investigation (as in, follow the money) I think it would lead to the very people who stand most to profit from the failure to do anything, or better yet, swing it completely to their own profit.
Mespo,
Is it me, or is JT’s reaction to tenth amendment arguments betraying a deep seated fear of their possible validity?
“On its face, it is a rather bizarre bill. If the 10th Amendment says what these legislators think its says, they would not need to amend their state constitution — they could stop the program on the basis of the federal constitution.”
Seeing the tenth amendment was drafted as good only against the Fed, and never “incorporated” under the 14th (for whatever reason), then how else would it be used?
And let’s not forget that the 10th amendment, like the entire constitution, confers no rights or powers to the states whatsoever. It’s a tautology at best.
Mind you I’m for Health Care reform.
SuaSponte,
Texas also has the lowest or one of the highest uninsured rates.
Seems a bit suicidal?
The beat in the Loon Star State goes on. It ranks 50th in education and 49th in medical care. Texas is a vast, empty, dusty outback, where ignorance is traditional, thanks to its lousy schools.
I will paraphrase Jonathan Alter, on MSNBC yesterday, who correctly pointed up that the center of the dwindling Republican Party is now in the South among mostly old, white men. Moreover, the South is home to the least educated in the Country, he said, and added that most scientists and those with graduate degrees have long been Democrats. He concluded by candidly saying that it was the stupid in the Country who are accepting the lunancy of the far-right extremists so visible today.
We know, and understand why, that from Nixon forward, the Republicans have relied on the benighted South for support in the elections. It seems that the denizens have always been eagerly willing to cheer and vote against their own interests.
I can’t imagine that anyone with a brain would want to leave the Union because of a Health insurance plan that is likely to be optional. Of course, I do not consider Texas as the beacon of sanity. I have said it before, if Texas wants to leave, let them. The Federal money that will leave with them will be huge, including the military installations. The Tenther’s do not have a valid claim here and to try to exercise it over an unwritten final bill is ludicrous. This Fox News mentality taking over the the base of the Republican party, again. I do believe that some of the angst that is boiling over is related to race. Why are most of these states that are claiming that they are being abused by the Federal government from the South? Why didn’t the Tenther’s arrive on the scene when multiple state National Guard units were deployed to Iraq?
Fractionation based on state’s rights issues anyone?
Next up, watch California give the Federal government the finger over taxing and legalizing marijuana as their budget crisis grows ever deeper.
Then later in the program, tune in for the showdown over gay marriage for more state’s rights issues and a dash of full faith and credit.
I hate to disagree with both mespo and Lincoln, but the Federal government in this instance is indeed exacerbating the problems IN GENERAL (not to confine their bungling to health care specifically). FEMA? Straining Nat’l Guard resources to the breaking point? Collapsing infrastructure? Not restoring the rule of law? Letting OBVIOUS traitors and criminals run free for political reasons? Perpetual graft that makes no one happy but corporate weasels and K St. vermin?
No.
It’s a much different world than in Lincoln’s time. And the longer the Constitution is treated like toilet paper by the Feds, it’s only going to get worse. Fractionation will happen eventually if we keep following the devolving fascist course we are currently on. Whether it comes from loons in Texas fighting against what’s considered a basic human right in most of the Western world, serious minded people looking for a real solution to their budget crisis or some yet unknown either crazy or legitimate reason for wanting out of the Union remains to be seen.
“Indeed, the speakers (after the unhinged man shown in the video clip above) admit that they are calling for a “bloody civil war” and not some constitutional transition:”
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“In your hands, my dissatisfied fellow-countrymen, and not in mine, is the momentous issue of civil war. The Government will not assail you. You can have no conflict without being yourselves the aggressors. You have no oath registered in heaven to destroy the Government, while I shall have the most solemn one to ‘preserve, protect, and defend it’.”
–Lincoln’s First Inaugural Address, March 4, 1861.
Even short pants revolutionaries need to understand the rules of the game.