Secessionists and Separatists Discover the Tenth Amendment

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.

96 thoughts on “Secessionists and Separatists Discover the Tenth Amendment”

  1. re: Texas v. White and the 14th ammendment section 4
    Was the 14th Ammendment section 4 ratified after the Texas v White case? It doesn’t seem like it could have been, but then I don’t see why that was not used to dismiss the case, saying the bonds could not be redeemed, and so were worthless, and ownership of no matter.

  2. I am sorry that you feel that I was trying to correct you, rather than making a point of my own. Let me assure you that I was not trying to correct you.

  3. Martin,

    “Don’t” – a prohibition

    “act” – pretend, as in fake

    “like you’re correcting me” – by acting like I had made an omission when I had said EXACTLY what I had intended.

    The “again, dumbass” part should be self-explanatory even to you.

    Your comprehension of English doesn’t make you look very intelligent, but then again, not much in your posts do, Martin.

    I have been ignoring your posts up to the point at which you did foist yourself upon me, apparently not content to be bounced about by mespo alone.

    So I’ll try this again.

    You have said nothing to date that I find either interesting, insightful or indeed meriting response.

    That’s why I wasn’t addressing you until you tried your little stunt to make yourself look smarter by “correcting” how I quoted the DOI.

    I’d really appreciate it if you didn’t try to pull me into your nonsense and in the long run? So will you – even though you may not realize it now.

    Please feel free to continue your conversation such as it is with the others, but I want no part of it.

    No response is required and none is indeed preferred. Just leave me be and I’ll return the favor.

    That’s crystal clear.

  4. I really like J.Turley but I was surprised how badly he muffed this question of the Tenth Amendment and States rights on the Maddow TV program. He spoke of our national government and state sovereignty and the concept of federalism. I was bothered when he used the term “national government” because the term never appears in any founding document, and Madison denies in Federalist #39 that we have a national government since federal powers are restricted to certain enumerated powers only. We have a federal government, i.e. a union of states. He admitted that the states were sovereign while denying them the decision making powers which belong to any sovereign political entity. The worst thing was the respect he has for precedent. The Supreme Court has literally made up a Constitution of its own imagination which runs rough shod over that of the Ratifiers. While its decisions may bind the judiciary, its decisions do not bind the parties to the Constitution, the states, who are its creator and ultimate judge. When I say states I mean the People of the several states acting in their sovereign political capacity. They have every right to oppose a national health care program based on the fact that the power to create such was never given to the Feds. C’mon Jonathan you must know this!

  5. Byron
    I hope you are right, desperately, and want to believe it. But didn’t Lincoln deny that at some point.
    Here are some wonderful quotes,, and that fact should give us all serious pause, that man who can say these things, and mean these things, can still go along, shall I say, with war.
    Didn’t he say something like: If I could preserve the union by freeing the slaves I would do it; if I could preserve the union by keeping the slaves I would do it; if I could preserve the union by freeing some and keeping some I would do it.
    A sobering view in the mirror: kill to defend the nation; even kill ourselves.

  6. Martin:

    I have gone round and round with the civil war and have come to a conclusion that the civil war was actually fought to free the slaves pure and simple. It wasn’t about states rights or to preserve the Union or any other promulgated ideas.

    The pre-war south was a tyranny of landed aristocrats against the lower classes and slaves. It was totally incompatible with the ideals of our founding, it had to be destroyed. By bombarding Fort Sumter they gave Lincoln the excuse he needed.

    Should any capitalists get their panties in a wad, those landed aristocrats typically inherited their lands that were given to their ancestors by the King of England. They did not earn it and it was sustained by the toil and sweat of slaves. This system was an abomination to the principle of human liberty.

  7. Buddha:

    refering to your neutronium post:

    what is an extremely dense degenerate? Is that someone that doesnt know they are a pervert or does it pertain to a well muscled low life?

  8. Ah yes. “The Articles of Confederation and Perpetual Union”. Followed by “a more perfect Union”, if that were possible.
    What are we to make of an attempt to improve perfection?
    Does it cause us to temper these claims that the truths they list are both “self-evident” and “inalienable”, or at least relegate them to this other world where perfection has been improved upon?

    In the case of White v. Texas, the issue seems to me to be did the government of Texas own the bonds they sold, free and clear; which I take to be the same question as was the government there and then thought by the people to be legitimate? I don’t understand, at least yet, why the court needed to consider whether Texas was, or was not, in the union.

    Lincoln proceeded into the Civil War to preserve the union. Was he right in this? To kill so many for this reason? I don’t think so. Lincoln censured the bloodthirsty Polk for the Mexican War. Lincoln’s second inaugural gives a different reason for the war: “If God wills that the scourge of war continue until all the wealth piled by the bondman’s two hundred and fifty years of unrequited toil shall be sunk…”. This is one that comes closer to the claims on justice, but is it close enough? One knows he was not focusing on wealth as the reason but on the magnitude of the injustice in units of measure that can be accepted by all.

  9. Lest you think I have no regard for the Declaration of Independency as Mr. Jefferson called it, here is a gift from the movie “Amistad” (and Anthony Hopkins)about who we are and the blueprint for our character that fine old document represents:

  10. Wow. Now that was impressive.

    You really are dense. Is English a second language?

    Might I suggest a nick change to something more appropriate.

    Like neutronium.

    Here, let me help with that . . .

    Don’t act like you’re correcting me again, dumbass. Is that clear enough?

  11. Mike Appleton September 9, 2009 at 5:20 pm
    Re 2. The newly formed union was intended to be perpetual.

    It seems ambitious for them to have thought “This union shall last forever”, except in the sense of no established termination date.
    Article V contemplates a new Constitution. It contemplates addition of new states, and division of existing ones. Is it only the notion of people leaving that the founders rejected? And even if they did, could they reasonably expect to so tie their descendants hands? I don’t see it.

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