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.
Buddha Is Laughing, September 9, 2009 at 7:29 pm
I’ll mind my own quotes if you take care of yours.
—–
What you are referring to?
Bob,Esq. September 9, 2009 at 2:59 pm
re: War is the continuation of politics by other means
—
or of business; viz United Fruit
Martin,
I’m certainly glad you cleared that up.
Do your credentials contain the appellation “M.O.”?
Because that was a fine display of mastering the obvious.
Do you also sing the Birthday Song when someone says “Happy Birthday!” or do you wait until it’s actually song time?
I’ll mind my own quotes if you take care of yours. That’s a fair deal. But if you want to act like you’re correcting some omission?
I had a G&T teacher once that was about 40 points short of actually being smart enough to be in the class much less teach it. She used to use a similar tactic to make her sound smarter and attempt to avoid the Hell that a bunch of hyper-intelligent kids would naturally make for someone they don’t respect being put in authority over them.
She didn’t last the semester. Especially after we put her on trial for insulting our intelligence. The administration wasn’t amused but we laughed our asses off.
As far as the DOI goes, I addressed what was required within the context of the conversation and I did it with the level of precision required. But even more to the point . . .
I’m not nearly as nice as mespo. And he (rightfully) called your arguments stupid and unversed and was just as kind to your analysis. You’ll notice I did not contradict him. Let that be your guide next time you want to act like you’re correcting some omission on my part.
Thanks.
Bob,Esq. September 9, 2009 at 2:59 pm
Revolution? In the age of the split atom? You’re kidding me right?
—–
I have not caught up yet, but may I comment?
from Merriam-Webster:
revolution:: a fundamental change in political organization
But of course they won’t like that.
Often ignored is the industrial revolution, a takeover by godless capitalists, and anarchists at that: the dollar is moral and no law but laissez-faire, and if that means child labor, so be it.
Buddha Is Laughing 1, September 9, 2009 at 8:47 am et.
and Byron
—
You quote from the DOI but stop, as it seems so many do, after the first three of the five self-evident truths. May I add the others?
We hold these truths to be self-evident,
1.that all men are created equal,
2.that they are endowed by their Creator with certain unalienable rights,
3.that among these are life, liberty and the pursuit of happiness.
4.That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.
5. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it,
Thanks.
Bob, Esq., I don’t have time to go into your other points now, but did want to tell you that I accepted your occasional brusqueness some time ago. It reminds me of certain judges I regularly encounter. And I much prefer someone who gets to the point. Besides, it’s not as if you arbitrarily throw insults into the mix, as, for example, “The case of White v. Texas is based upon an unenumerated power of judicial review, you moron.”
Byron:
“How do rights confer power?”
The phrase ‘Rights confer power; not vice versa’ is a shorthand reminder of the order of operations of the American republic.
To say that one derives their rights from the powers vested in the Constitution is to ignore and miscomprehend its entire structure.
If you read the constitution you will find not one piece of syntax even hinting that the document is conferring a right. And if you read the Bill of Rights closely, you’ll notice that each and every one of them speaks to further RESTRICTIONS OF THE POWERS OF THE FEDERAL GOVERNMENT, and not the ‘increasing’ of rights conferred.
Mike Appleton:
“Bob, Esq., my position is not and never has been that the Constitution confers rights. My statement was that the Constitution does not recognize a right of secession.”
Mike, to say that something or someone does not recognize a right necessitates the premise that the right begins and ends with the entity recognizing said right. An extreme example of this phenomena would be to say humans recognize space and time because they exist apriori to all experience.
“To the extent that one believes that the right of secession exists as a principle of natural law (which I suppose is inherent in the phrase “consent of the governed”), it is no more than a statement that people may change their form of government by force or otherwise under certain circumstances.”
Given the frame of reference that we’re analyzing, i.e. the American Revolution through the forming of the constitution, it’s not a ‘belief’ but a deductive certainty.
“But since this topic is the subject of books, let me summarize my position as follows:
1. The ratification of the Constitution by the several colonies created both the states and the federal government simultaneously.”
I’ve read the foregoing a few times and find it rather confusing. The majority of the 13 colonies conferred specifically enumerated powers to the proposed Federal government thereby creating it upon ratification under Article VII. Nothing existential happened to the colonies, we just called the colonies states after ratification
“2. The newly formed union was intended to be perpetual.”
So long as everyone got along and the people didn’t flush it down the toilet. At least that’s the impression Franklin gave during the convention.
“3. The act of ratification in each instance eliminated the right of secession in the ratifying party.”
So only colonies like Rhode Island had the right to secede?
“4. The case of White v. Texas confirmed the indissolubility of the union other than through constitutional processes.”
The case of White v. Texas is based upon an unenumerated power of judicial review (if you want to get textual) AND the notion that an Article III court could ignore the separation of powers doctrine by ruling over a non-justiciable issue–i.e. a political question.
“I suspect that we may differ on a number of these points. Perhaps this topic should continue by taking up one issue at a time. I think it is a fascinating, and perhaps timely, topic.”
Sure it’s timely; haven’t you ever seen me rant about the Executive issuing an order effectively amending the constitution for itself by publicly allowing the NSA to violate the 4th Amendment.
BTW, if I ever seem abrupt in discussing these types of issues, it may (or may not) help you to know that my Myers-Briggs personality type is an INTP/INTJ. IOW, I’m usually an easy going guy until I see principles being bastardized, butchered or completely ignored.
Stay in your own movie,
Bob
Awesomeness.
Thanks again, Bob.
Buddha,
I just replied.
Bob,
If you don’t get an e-mail eventually, let me know. I know why the first one didn’t go through though:
Final-Recipient: rfc822; solipsist@myself.com
Original-Recipient: rfc822;solipsist@myself.com
Action: failed
Status: 5.0.0
Remote-MTA: dns; myself-com.mr.outblaze.com
Diagnostic-Code: smtp; 550 : inactive user
Now that you’ve signed back in, outblaze’s daemon should reactivate the account, but we may cross in transit.
Bob, Esq., my position is not and never has been that the Constitution confers rights. My statement was that the Constitution does not recognize a right of secession. To the extent that one believes that the right of secession exists as a principle of natural law (which I suppose is inherent in the phrase “consent of the governed”), it is no more than a statement that people may change their form of government by force or otherwise under certain circumstances. But since this topic is the subject of books, let me summarize my position as follows:
1. The ratification of the Constitution by the several colonies created both the states and the federal government simultaneously.
2. The newly formed union was intended to be perpetual.
3. The act of ratification in each instance eliminated the right of secession in the ratifying party.
4. The case of White v. Texas confirmed the indissolubility of the union other than through constitutional processes.
I suspect that we may differ on a number of these points. Perhaps this topic should continue by taking up one issue at a time. I think it is a fascinating, and perhaps timely, topic.
Bob, Esq:
“Rights confer power (i.e. to government) not vice versa.”
How do rights confer power? Isn’t this part of the problem with our own government, they have misconstrued the nature of the power of government and have confused conferred rights with power?
Once you give someone or some organization power over you it is all over. The people were too promiscuous in their conference.
Bob,
No apology required. It’s a mail.com account. The problem may be at my end. I resent, but the original may still be in transit. My guys don’t have the speediest mail daemons on the net.
Buddha,
I think you’ll have to send it again since the only email I have says ‘welcome back’ circa today. (Haven’t used the acct in a while)
Apologies.
Bob,
In re Black article:
Done and done. Thanks.
Regulars,
I have a special account as BIL that is attached to this WordPress/Gravatar ID. If any of the other regulars want to e-mail me directly, I hereby authorize the Prof. to release that address (which I just gave to Bob) to any requesting regular in good standing. I’d rather just post it outright, but given the recent “unpleasantness” I don’t want to be handing out weapons to hostiles if you get my drift. I check it about once a week but if I start getting more mail, I’ll increase the frequency.
Mike Appleton: “The Constitution does not contain an “opt out” clause because systems are built into the constitutional structure to provide a means for preserving the framework.”
The absence of an opt out clause, within the context of a document created from SPECIFICALLY ENUMERATED POWERS, in no way negates such a right existing as retained by the states.
“In the event those systems fail, there are methods available to amend the Constitution and correct its deficiencies. In the event of a complete collapse, the remedy is revolution.”
Revolution? In the age of the split atom? You’re kidding me right?
“I do not believe that I stated that secession is not a political issue. I did state that I do not believe that the Constitution recognizes a legal right to secede.”
Once again, as I first hinted at in this reply, the constitution DOES NOT CONFER RIGHTS OR POWERS. Rights confer power (i.e. to government) not vice versa. What does that mean. It means that your argument, as well as Mespo’s, is based upon a subtle yet crucial miscomprehended order of operations.
Hamilton, in Fed 84, expressly warned of this problem while discussing his objection to the Bill of Rights:
“I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.”
Accordingly, when you say “I did state that I do not believe that the Constitution recognizes a legal right to secede” you missed the issue entirely because you’re in effect “affording a colorable pretext to claim [more powers] than were ever [SPECIFICALLY] granted.”
The Founders and Ratifiers NEVER delegated ANY power to the Fed to stop any State from seceding.
“But many legal issues have significant political ramifications. I do not understand your comment on Texas v. White and justiciability. Perhaps you could clarify that.”
Previously you mentioned revolution. I simply said that a state seeking to secede from the union is a political question. Who was it that said “war is a continuation of politics by other means?”
Witness the Civil War
Bob, Esq., sorry. I missed your correction in the course of preparing my response. My point is that the presence of political overtones in a dispute is insufficient to preclude judicial review, if the dispute is otherwise justiciable.
Buddha,
I have a pdf of the article I scanned nearly ten years ago (I’m getting old) that I could email to you. Just drop me a line at solipsist@myself.com (yes, yes I am the solipsist) with Charles Black in the subject line and I’ll forward a copy along to you.
Per the DOI, instead of mincing up Life Liberty and the Lockean pursuit of property, your best bet, for independent analysis sake, would be to view the DOI for what it really is; a Restatement 2d of the Social Contract as described in Locke’s Second Treatise. By keeping a strong focus on the distinction between usurpation and tyranny, with an occasional glance back at Hamilton’s cautionary words in Fed 81, the limits of governmental power will come into focus.
Bob, Esq., I do not see how my views of the Declaration are in conflict with those of Charles Black. My phrase “immutable principles” is hardly distinguishable from his phrase “legal norms, binding on governments.” In other words, the Declaration delineates certain requirements for the existence of a legitimate government, by which I mean a government whose laws and institutions are worthy of recognition and support by the governed. The Constitution provides the actual framework of a government “instituted among men” to effectuate the principles laid down in the Declaration. The Constitution does not contain an “opt out” clause because systems are built into the constitutional structure to provide a means for preserving the framework. In the event those systems fail, there are methods available to amend the Constitution and correct its deficiencies. In the event of a complete collapse, the remedy is revolution.
I do not believe that I stated that secession is not a political issue. I did state that I do not believe that the Constitution recognizes a legal right to secede. But many legal issues have significant political ramifications. I do not understand your comment on Texas v. White and justiciability. Perhaps you could clarify that.