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.
CORRECTION:
Mind you the mere existence of *Texas v. White, 74 U.S. 700 (1968) does not mean the issue WAS justiciable.
Buddha, Bob, Esq, Mike A:
“And I’d just like to say, now THIS is a thread.”
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Agreed. When the bulls run, some blood will flow but what a beautiful sight. Carry on — or should I say giddee-up!!
And I’d just like to say, now THIS is a thread.
Very nice. A hearty thanks to all participants.
Bob,
I’ll have to read the Black article, but by that quote it essentially seems to me that he’s already where I was going with the “legal but not as binding” distinction. Had I thought to put the DOI in terms of conditions predicate, I might have worded my original post differently.
Mike Appleton:
Please explain to me how secession is not a political question. Mind you the mere existence of Texas v. White, 74 U.S. 700 (1968) does not mean the issue was not justiciable.
I submit to you Bush v. Gore.
Mespo:
“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.”
At the risk of biting off my tongue in defense of a bunch of Mr. Pibb drinking Moonpie eating rednecks, I believe that incivility was known as the war of Northern aggression. Further, I don’t recall any reformation amendments to the constitution stating what you claim.
“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.”
The contract is not illusory, loss of 49 allies is quite a price to pay for seceding. Furthermore, as you know, someone like Judge Posner may deem secession as Efficient Breach of Contract.
“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.”
So you want union without any legal binding effect of the original declaration of covenants and restrictions that define this nation??
Charles Black: “[A]s to the Declaration of Independence: My own position is that the Declaration ought to be read simply as stating legal norms, binding on government. A minimal “lesser included case” would be that the Declaration seriously declares “rights,” in words (irrevocable without ultimate national humiliation) which must at least be used as a binding gloss on the “rights retained by the people,” saved by the ninth amendment from being “denied or disparaged,” on the phrase “privileges and immunities” in the fourteenth amendment, on the obligations of the States to persons whom they are commanded, by national constitutional law, to take and treat as their citizens, and on the “privileges and immunities” of national citizenship which the States may not diminish or in any way
impair.
There is no room whatever for not taking the Declaration’s
claims as applying to all governments-both national and State,
together with all their subdivisions.” (“One Nation Indivisible” Charles L. Black, St. John’s Law Rev. 65:17)
“High minded, foundational, and aspirational yes, but force of law–no way.”
It’s the condition precedent to the entire republic Mespo; contradict the DOI and you sink the entire boat.
“And, of course, the Supremacy Clause is the basis for the union, a dead provision from a superseded document notwithstanding.”
Madison didn’t blush while drafting Article VII because he wanted to create something stronger than the Articles of Confederation; nor did he intend to leave any room for the Fed to keep the states under its boot while it “exercised power beyond right which no one has a right to. (aka ‘tyranny’)” And sure as shit Hamilton never saw Article VI that way either.
Not one of those 13 colonies had ANY intent to be irrevocably bound to a national government that might in the future oppress them the same way their former government caused them to draft a DOI explaining why they were separating.
“So despite your “logic” you are historically, legally, and incomprehensibly wrong on this one.”
Am I? Mespo, I hate to say it, but your argument leaves you with no foundation whatsoever; a constitution of, and predicating, nothing.
Mike Appleton: “I view the Declaration of Independence as a statement of certain immutable principles enunciated as a basis for the right of the colonies to “dissolve the political bonds” with England. It is a philosophical, as opposed to a legal, document.”
You should read what Justice Charles Black has to say about that.
One lives to be of service.
Mike A, Buddha and newcomer Byron:
Nice job, all!
Byron,
In re liberty. Oh, it’s a much thornier thicket that that. Now maybe you see why I said it’s not such a pat definition.
Mike A.,
I concur in the whole, although I view the DOI as both philosophical and legal, just not as binding as the Constitution nor should it be (due to vagueness and lack of incorporation – it could and maybe should have been made law had the FF’s wanted by either direct incorporation at drafting or by later Amendment, but that’s all hypothetical).
Byron,
Stability (and conversely instability) is not a function of movement although it manifests in physical systems. Stability is a function of complexity. Movement in concert happens all the time. It’s called sympathetic resonance and/or harmony. When purposeful the poetic call it providence, but when it’s accidental/coincidental the poets call it kismet. Unity of purpose and balance are not mutually exclusive.
Mike Appleton:
“A republic which can only be held together by constant concessions to political blackmail is hardly a model of stability.”
Isn’t opposition a good thing? It necessarily limits government power because of infighting. Opposing forces, at least in the physical world, actually leads to stability. Forces in the same direction compel movement/instability.
I view the Declaration of Independence as a statement of certain immutable principles enunciated as a basis for the right of the colonies to “dissolve the political bonds” with England. It is a philosophical, as opposed to a legal, document.
The Constitution does not recognize a right to secession, either expressly or by implication. In Texas v. White, 74 U.S. 700 (1968), the Supreme Court held that ratification of the Constitution created an “indissoluble” union, precluding a right of secession other than through revolution or the “consent of the states.” It concluded that the articles of secession adopted by the Texas legislature had been null and void. A successful revolution, of course, legitimizes the dissolution of the former pact. In the absence of a revolution, therefore, my own opinion is that a legal secession would require the adoption of a constitutional amendment.
This view also has the benefit of common sense. Were we to recognize a unilateral right of secession, the union would routinely face threats of withdrawal by disgruntled states, much like what has been occurring recently. A republic which can only be held together by constant concessions to political blackmail is hardly a model of stability.
Buddha and others:
“For example: what a classical liberal would call a move against individual liberty (redistribution of wealth) a liberal socialist would call a requirement for true pan-social liberty to occur at all.”
I need some help here. If you are okay with my definition of life – “as you have a right to your life it does not belong to king or country it is yours.”
Then would not liberal socialist redistribution be a limitation on “your” life and by extension your liberty? This is where I get hung up, does the government have a right to redistribute wealth to create social/economic equality? How do you help someone achieve economic/social equality without diminishing someone else’s liberty? I really don’t know the answer to that question and it bugs me because I don’t think people should be hurting but then I also don’t think someone that is successful should necessarily foot the bill. How do you balance the 2 or are they just incompatible and an acceptable dichotomy? Are they even a dichotomy?
Byron,
I say there is a difference in “definable” and “definable with concision”.
Life, as I stated, non-vague and your definition works.
Liberty, eh, somewhat less concise – see the works of Jefferson, Rousseau et al. There is considerable variation in how liberty is defined, from the individualists to the classical liberal, from the concepts of positive and negative liberties, one sees that there is no pat, precise definition of liberty. For example: what a classical liberal would call a move against individual liberty (redistribution of wealth) a liberal socialist would call a requirement for true pan-social liberty to occur at all. There’s plenty of room to argue about the definition of liberty.
Pursuit of Happiness. Yeah. I’m just going to have to go with vague as possible no matter the attempt to narrow the definition. Happiness is an individual emotional response and is ergo subject to the irrational. You can’t legislate happiness or reason. It comes from inside.
And while I think all three are important, critical even, I have to take exception with you last line: “Good government is a combination of the 3, none is sufficient unto itself and all are necessary for proper human existence.” Good government should pay heed to all of these concepts in both crafting legislation and in execution, but any government that fails to address these are by implication bad and I feel doomed to failure. It all comes back to that whole “the rulers only rule with the consent of the people in any system” concept. The government itself is a construct and has neither life, sense of liberty or happiness to pursue. While all three are (IMO) essential for human life, they are meaningless to a construct especially if that construct is under the control of sociopaths and narcissists (politicians) whose sense are warped by their very nature in addition to the pressures of systemic corruption. In that sense, I think the DOI is a very valuable tool to analyze whether a government has been or needs to be usurped to restore power to We the People, but it doesn’t apply in the precise way a law should nor need it do so.
As a blanket of guiding principles, the spirit of the law, it is a “soft tool” we can use to ensure liberty is maintained. Our system was designed to be self-correcting. I think the DOI is what should be used to determine if that mechanism is broken, but not the tool to fix it. That tool would be campaign finance and lobby reform, a function of the legislature. And if that doesn’t work? I’m all for watering the tree of liberty starting with those obstructionist assholes in the Senate. Neither party is enshrined nor protected in the Constitution. Both parties are selling out the country to corporations, just different ones. If they both parties need to go to protect both liberty and the Constitution, then the bad actors in the system brought it upon themselves and I’m sure Mr. J would be in line with that.
Buddha:
They are definable in my opinion. And Jefferson put them in the order of importance:
Life – I read this as you have a right to your life it does not belong to king or country it is yours.
Liberty – the existence that man needs to be fully human.
Pursuit of Happiness – I don’t think it is vague at all. You know march to your own drummer, the road less traveled, what ever floats your boat, do your own thing, etc.
Liberty and pursuit of happiness presuppose life and pursuit of happiness presupposes liberty, you cannot pursue what makes you happy if you do not have the liberty to do so.
Good government is a combination of the 3, none is sufficient unto itself and all are necessary for proper human existence.
mespo,
Vagueness standard aside as it would create problems for the document as a whole (anyone care to define “happiness”?), I don’t think you’d be running into a wall with the “created equal” language. Simply because Jefferson built in an implied definition. Look at the first section: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Modernize the language and sentence structure. I read that as “It is true that all men are created with self-evident rights inherent to their existence” followed by the non-vague term “Life”, the slightly vague term “Liberty” and the totally vague “pursuit of Happiness”.
Mespo72^3:
No I do not think it is law and you cannot find law in it’s words. You cannot use it in a court of law per se. But you can use it as a measuring stick for our laws to judge compliance with liberty and as a weapon against usurpation of power by government. It is our pressure valve that prevents the pot from exploding.
Buddha:
thank you.
Byron:
“The Constitution and Bill of Rights just “flesh” out the philosophical principles in the Declaration.”
*********
That, my friend, is classic truism. Law always “fleshes out” abstract principles. The DOI may be venerable but it is in no case “law.” Like a corporate mission statements, it sets forth, in the most abstract terms, the purposes of the enterprise. Law, on the other, hand must be concrete enough to advise those under its jurisdiction of the prohibited and prescribed conduct. We strike down laws all the time for vagueness. Imagine applying the vagueness standard to the DOI. Are we truly “all created equal”? What does that mean? Do I play the piano as well as Frederic Chopin did? Are we endowed by our creator with anything? Who is that Creator – our mother?
While you may rightly admire the aspirations of the document and marvel at its intellectual basis, it is in no sense “law.”
Byron,
Hear, hear.
It appears we have remarkably similar opinions about the importance of the DOI.
BTW, welcome to blog. I’ve been noticing you sling a mean post, Byron. Good show and many returns.
mespo,
No problem with that. Like I said, I was quibbling over the term from the linguistic sense not the legal sense. I don’t think there’s a problem with using both the narrow and the broad definitions of the the term as long as one is clear about which they mean.