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.
Mespo73^3; Martin; et. al:
My opinion of the Declaration is that it is the philosophical basis for the United States. It gives the reason(s) that we want to separate from Britain, the foundation for our government (life, liberty and pursuit of happiness) and how it is to be instituted. You could almost say it is the preamble to our constitution.
Without this document I doubt we would have had the revolution we had, it might have looked more like that bloody mess in France. It laid the intellectual framework for our breaking away from Britain and is probably, John Adams notwithstanding, the single most important document of our republic.
The Constitution and Bill of Rights just “flesh” out the philosophical principles in the Declaration. Without the Declaration our country would not be what it is. It is the single most important document from our founding because of it’s philosophical nature. The Constitution and Bill of Rights are nothing without the Declaration which anchors our form of government.
The Constitution and Bill of Rights can be altered in law but the Declaration cannot and it is my opinion this document keeps us anchored and can be used as a cudgel when/should our law makers overstep or usurp our power.
Martin G:
I have no intention to debate one so unversed in the law or the foundations of the Constitution. No lawyer worth his salt thinks the DOI is a binding legal document in any meaningful sense. (see Buddha above who is worth lots of salt). It wasn’t even regarded with much importance after the Revolution (See the letters of John Adams). Were it the foundation of our government, we would need no Constitution. The DOI is more in the nature of a Petition or list of grievances written to explain Congress’ action in passing the resolution of 7/2/1776 which was the legal declaration of independence from Great Britain. It didn’t even have any effect in English common law since the law of England likewise did not recognize a right to unilaterally separate from the Crown. This is evident because the King had issued his own Proclamation of Rebellion against the colonists sometime before the passage of the resolution of 7/2/1776.
Read more, speak less, and then we’ll talk. You contract analysis is worse than your historical analysis, and the rest of your drivel is almost child-like.
mespo
If you don’t understand what I have to say, you needn’t expend yourself refuting it.
Buddha:
There is a significant difference between a duly elected official whom, upon taking office, commits crimes which make HIM illegitimate, and the government itself that remains legitimate despite his actions. Was Nixon’s Administration illegitimate or were he and his cronies illegitimate? Was every act undertaken by that Administration during that time rendered null and void as with an illegitimate government such a a coup? It is soft thinking to believe that a government derives its legitimacy from anything other than the Constitution, especially a document so nebulous (from a legal and not a political or philosophical standpoint) as the Declaration. Though its agents may perform illegal or even treasonous acts, the government duly elected remains in a Constitutional sense “legitimate,” and that is the true legal sense.
mespo: DOI as an inspiring but irrelevant document.
Interesting perspective, albeit not widely shared.
Here are a few complaints from the Declaration that seem timely:
*For quartering large bodies of armed troops among us: [enduring bases]
*For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States: [Nisour Square]
*For cutting off our Trade with all parts of the world:[embargo]
*For depriving us in many cases, of the benefit of Trial by Jury:[illegal combatant]
*For transporting us beyond Seas to be tried for pretended offences:[Guantanimo]
mespo, you view the Constitution is a contract
1. A contract is an exchange of promises for the breach of which the law will provide a remedy. What is the remedy?
2. If the text of the Constitution is text of the contract, mightn’t it be hard to show who committed the first breach.
3. A contract can’t be indeterminate, and so a promise among the states to be BFF might be non-enforceable.
BTW, any chance you could be a tad more polite, or are you doing the best you can?
mespo you say:
So, we can establish legal precedent by gunfight? That certainly seem to open the door to legal secession.
mespo,
Perhaps within the confines of American history your statement is correct, but history has examples of groups who upon legitimately getting some power leverage it into usurpation. I hate to do it, but Hitler’s lateral against the Reichstag was just such a move. Some would even argue the Bush Administration of a similar tactic in pursuing their Constitutional abuses by outsourcing and running illegal ops from the VP’s office. I don’t have to tell you about how often just such a drama played out in Roman history. Caligula strikes me as the obvious example.
Illegitimacy comes not just from electoral fraud, but can also come from malfeasance. Look at Nixon, legitimately elected but illegitimate in execution of his duties. Bush? Same deal except the soundness of the SCOTUS ruling is questionable at best and biased crap at worst. Not every thing that comes from SCOTUS is a gem of wisdom or legal reasoning. This is one of the reason we get bad law like Bush and like Buckley v. Valeo (the root of nearly all of our current systemic problems). That being said, I’m probably nitpicking on the work “illlegitimate”.
This does not mean I buy Martin’s argument any more than you did. I’m a huge fan of the Declaration. It’s no secret I think it’s the most important legal document ever. But I’d never assert it’s law to prove legal legitimacy of the Presidency.
I would however hold out that the Declaration is the very definition of the spirit of the law and should be. That libertarian idealism so present in our Founding Fathers has no better point of reference than the Declaration. Freedom and liberty no better friend. Jefferson’s words are indeed self-evident and strike with power and truth any writer worth his salt should aspire to reach. And while Bush v. Gore is indeed the law of the land, it violates the spirit of the law and that in itself hinders legitimacy even if it doesn’t outright destroy it. Even if that impairment is only in the eyes of history. There is no harm in using the Declaration is a prism. In fact, I often find it quite useful.
Bob,Esq:
You know as well as I do that there is no right to withdraw from the Constitution as a certain incivility from 1861-1865 clearly established. You also know that a contract once made may not be breached without consequence and further that providing a provision in that contract that is is revocable on the whim of a party makes the contract no contract at all.
Your analysis of Marbury v. DOI is likewise specious given that the DOI carries no weight of law, and merely provides a set of principles neither adopted by Congress, ratified by the States, nor affirmed by a court of law. High minded, foundational, and aspirational yes, but force of law–no way. And, of course, the Supremacy Clause is the basis for the union, a dead provision from a superseded document notwithstanding.
So despite your “logic” you are historically, legally, and incomprehensibly wrong on this one. You’re kidding, right?
Martin G:
“Didn’t the Declaration talk about ‘deriving their just powers from the consent of the governed’? If there is no consent, the government powers are unjust. So, as mespo argues, that would make it an illegitimate government.
I don’t think that we can consider the Declaration “quaint”, or disavow the principles that are found in it.”
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You have ventured off the cliff of mindless vaguery and fallen into actual obscurantism. The Declaration is not law, and I am aware of no government that didn’t arrive in Washington duly elected by the populace (the manifest consent of the governed, and sorry, once given you only get to take it back after four years). Whatever you may think of Bush v. Gore, it remains the law of the land and as such is legitimate. An illegitimate government is one not established pursuant to the dictates of the Constitution. Since no such government like that exists or existed your argument is worse than obscurantism, it’s downright stupid–with all due respect.
Mespo:
“Begging the question” (Petitio Principii) is a logical fallacy in which the proposition sought to be proven is assumed in the premise. I made no such assumption. I merely called upon you to prove what you assert, especially given the fact that I, as well as most of us here, know already that such a right does not exist within the four corners of the document, nor with any interpretation of its language issued by any court reviewing the matter.
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Argumentum ad populum
&
Begging the question
1. Rights are not conferred by the constitution; thus the lack of such enumerated right to secede existing within the four corners of ‘the document’ says nothing.
2. Your last phrase “nor with any interpretation of its language issued by any court reviewing the matter” begs the question of the validity of another ‘non-stated power’ i.e. judicial review. Unstated power of judicial review but no unstated power to secede? Seems to me the DOI carries a tad more weight than Marbury.
3. The right to secede would be a political question; making it non justiciable.
4. If you think Article VI is your panacea, I direct you to Article XIII of the Articles of Confederation — requiring a unanimous vote to dissolve said Confederation. C.f. Article VII of the Constitution — i.e. Madison conveniently ignoring said problem.
LOL. I will have to reread the earlier pearls and reminisce.
I thought for sure you would say that you never said that you were misquoted, but rather that I said that you misquoted Lincoln, which I didn’t.
But a diversion such as that will have to wait. 🙂
Martin G:
“I see you dropped your claim about being misquoted. Good.”
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Nope, just ran out of pearls to cast.
Anonymously
If they were in fact forced to rejoin, did not have much of a choice, then they are subjugated people, and all subjugated people have the right to rebel. Don’t they? Of course they do.
Didn’t the Declaration talk about ‘deriving their just powers from the consent of the governed’? If there is no consent, the government powers are unjust. So, as mespo argues, that would make it an illegitimate government.
I don’t think that we can consider the Declaration “quaint”, or disavow the principles that are found in it.
mespo, you say
So what is this principle supposed to mean? You say that if what a government does is legal then it is a legitimate government, and an illegitimate one does what is at odds with the constitution. How is that supposed to advance the argument about whether there is or is not a right to secession in the Constitution?
I see you dropped your claim about being misquoted. Good.
1. What did you think about the Declaration’s claim that it is ‘self evident’ that if a government becomes destructive of those ends, it is the right of the people to alter or abolish it? (my first post – you skipped that.)
2. I believe that the second amendment was added as a protection against tyranny: the people can resist the government by force of arms, or threaten to. It is not about duck hunting, as I am sure you know. If they can resist by force of arms, by revolution, then I think that a lesser means, like peaceful secession, is implied.
Martin Gugino 1, September 6, 2009 at 11:32 pm
Anonymously
I dont think the right to seceded depends on the text of the state’s constitution.
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I would have agreed by for the terms of the “Reunification of the Union” after the civil war.
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I also don’t see how Texas can be “forced to rejoin”, as you put it.
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None of the states in insurrection had much of a choice after the civil war. They were forced to rejoin and the victor took the spoils of war. Texas being a secessionist state followed suit as all other states. This I do not believe was part of Lincolns original plans and when Johnson was president he allowed the Union Generals to make policy which went against his basic beliefs.
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If the rejoining was not voluntary, then Texas is being subjugated.
If Texas had the right to withdraw from the states as a whole and it in fact did secede can they do this each and every time they wish? Or was that right abrogated when they rejoined the Union, even arguing that it was there to start with? There is some dispute as to whether Texas may divide into 4 or 5 states. I think it is 4 as the state Historical Museum say 4 some papers have written 5. I would gander to say 4 but whom am I to say.
Martin G:
“If you feel that there is no right to secession to be found in the Constitution, your argument is still only begging the question.”
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This is a nonsequitur. There is a right to secede in the Constitution or there is no such right there — these are the only logical choices. You have postulated there is a right, so the burden rests with you to prove it. I have seen no prove so far.
“Begging the question” (Petitio Principii) is a logical fallacy in which the proposition sought to be proven is assumed in the premise. I made no such assumption. I merely called upon you to prove what you assert, especially given the fact that I, as well as most of us here, know already that such a right does not exist within the four corners of the document, nor with any interpretation of its language issued by any court reviewing the matter.
You will find no quarter for muddle-headed thinking here, nor any points for getting it nearly right, nor, finally, throwing around terms with whom you have only a faint acquaintance. Sorry.
Anonymously
I dont think the right to seceded depends on the text of the state’s constitution. I also don’t see how Texas can be “forced to rejoin”, as you put it. If the rejoining was not voluntary, then Texas is being subjugated.
mespo
I admit it is a stretch – it just dawned on me. The amendments are all there not to secure basic rights, but to put up walls against expansion of government power. For example, there is no amendment that guarantees the right to raise one’s children, but you cannot conclude from that that that was not important to the colonials.
mespo
Being precisely what Lincoln said doesn’t mean that it is not a misquote: Lincoln misquoted the oath of office. As did John Yoo.
If you feel that there is no right to secession to be found in the Constitution, your argument is still only begging the question.