By Harold Thomas
“The powers not delegated to the United States by the Constitution, nor prohibited to it by the states, are reserved to the states, respectively, or to the people.”
— Tenth Amendment, Constitution of the United States
Since the beginning of the year, 39 states have introduced state sovereignty resolutions in at least one house of their legislatures. Of those (as of July 28), seven have been enacted (Alaska, Idaho, Louisiana, North Dakota, Oklahoma, South Dakota, and Tennessee), four (including New Hampshire’s) have either been defeated or are expected to be defeated; and the other 23 are still under consideration. Not all of them are “red states”: Minnesota, Michigan, Ohio, and Pennsylvania are all states leaning Democratic or are highly competitive.
Why are so many states introducing such resolutions?
One reason is that the federal government is raiding state treasuries to run its programs. State legislators know this better than anyone. Here’s the dirty little secret: There is no such thing as “federal funds.” “Federal funds” and “stimulus money” are the tax dollars you and I send in by April 15 every year. Some of that money is taken out to pay for national defense and the federal bureaucracy. The rest is returned to the states as grants – with strings attached. State governments find it politically impossible to turn them down, because the end result would be to give away its taxpayers’ dollars to a more compliant state. In this way your dollars are being held hostage by Washington to carry out its will.
It doesn’t end there. Most federal grants come with a requirement for matching funds – that come from your state tax dollars! Now, state governments face a dilemma: do we try to qualify for federal grants, or do we try to carry out our own priorities, such as education and public safety, without raising taxes and further depressing the state’s economy?
In addition, a growing number of state officials are becoming alarmed at federal intrusions on the rights of state governments and the citizens. For example, proposed federal laws restricting ownership of firearms are meeting resistance from the legislatures of Idaho and Montana. Missouri is chafing under expansions of abortion rights, and Michigan doesn’t want Real ID. The USA PATRIOT Act and other federal legislation in the years since 9-11 have greatly narrowed the rights that are reserved to the states and to the people.
Historically, we have relied upon the U.S. Supreme Court to protect our rights under the Constitution – but when they fail to do so, and the Congress fails to do so, and the White House fails to do so, what is left? Thomas Jefferson answered that question in the Kentucky Resolution in 1798. When all else fails, the state legislature can put itself between the federal government and the people. It can “interpose” itself by ordering the federal government not to enforce offensive laws that exceed the Constitutional powers granted to it within that state’s boundaries. This interposition is also called nullification. Idaho, Michigan, Missouri, and Montana, by passing their resolutions, will be establishing the authority to stop federal excesses in their states.
Oklahoma’s resolution has been the template for many of the others. After reciting the text of the Tenth Amendment, the Oklahoma resolution makes the following points:
The Tenth Amendment defines the total scope of federal power as that specifically granted by the Constitution of the United States (in particular, Article I, Section 8).
The Tenth Amendment means that the federal government was created specifically to be an agent of the states.
Today, the states are “demonstrably treated as agents of the federal government”.
Many federal mandates are in direct violation of the Tenth Amendment.
Article IV, Section 4 of the U.S. Constitution guarantees that all states are guaranteed “a republican form of government;” and the Ninth Amendment states that the enumeration of rights shall not be construed to deny others retained by the people.
The U.S. Supreme Court ruled in New York v. United States, 505 U.S. 144 (1992) that Congress “may not simply commandeer the legislative and regulatory processes of the states;
Proposals from previous and current administrations may further violate the U.S. Constitution.
The resolution then asserts Oklahoma’s claims to sovereignty under the Tenth Amendment over all powers not otherwise enumerated and granted to the federal government. It then calls on the federal government to:
“As our agent, to cease and desist, effective immediately,” mandates that are beyond the scope of the Constitution;
Prohibit or repeal compulsory legislation that directs states to comply under threat of civil or criminal penalties or require states to pass legislation to avoid loss of federal funding.
Finally, the resolution directs the Oklahoma House clerk to distribute copies of the resolution to the President of the United States, the President of the U.S. Senate, the clerk of the U.S. House of Representatives, the Speaker of the House and President of the Senate in every state’s legislatures, and to each member of Oklahoma’s congressional delegation.
Oklahoma’s resolution is no call to arms – certainly no call for secession, as some of the media are suggesting. It is simply demands that the federal government do what it should have been doing all along – protect the American people by obeying our Constitution.
New Hampshire’s resolution is much more radical. It was introduced by Rep. Dan Itse to put teeth into its demand for Tenth Amendment rights. The resolution begins with quotations from the 1784 New Hampshire Constitution and the statement accompanying its ratification of the U.S. Constitution. In that statement, New Hampshire asserts that “…all Powers not expressly & particularly Delegated by the [U.S. Constitution] are reserved to the several states to be, by them, Exercised.”
In the resolves, New Hampshire quotes six paragraphs almost verbatim from Thomas Jefferson’s Kentucky Resolution of 1798: “the several states composing the United States of America, are not united on the principle of unlimited submission to their General Government,” and expressing the principles of limited federal government already noted. The resolution also urges communications by “committees of correspondence” with other states, and asserting the right to nullify within their borders federal actions that fall outside Constitutional limits.
Finally, New Hampshire’s resolution makes one of the boldest statements against federal authority ever made: “That any Act by the Congress of the United States, Executive Order of the President of the United States of America or Judicial Order by the Judicatories of the United States of America which assumes a power not delegated to the government of the United States of America by the Constitution of the United States of America, and which serves to diminish the liberty of any of the several states or their citizens shall constitute a nullification of the Constitution of the United States of America by the government of the United States of America” in which “all powers previously delegated to the United States of America by the Constitution of the United States will revert to the several states individually.” (Emphasis added)
These conditions constitute what might be called a “secession trigger”:
1.Establishing martial law or state of emergency in a state without the consent of its legislature;
2.Requiring involuntary servitude or government service other than a draft during a declared war, or in punishment for a crime;
3.Requiring the same of persons under age 18, perhaps referring to proposed “community service” requirements for high school graduation;
4.Surrendering any power delegated or not delegated to any corporation or foreign government (such as the North American Union or the “New World Order”);
5.Any act regarding religion; further limitations on freedom of political speech (“Fairness Doctrine,” absolute prohibitions on religious activity on public property, or forced silence by candidates for a specified period before an election); or further limitations on freedom of the press;
6.Further infringements on the right to keep and bear arms, including prohibitions of type or quantity of arms or ammunition.
House Democrats defeated Rep. Itse’s resolution by a party line vote of 216-150. South Carolina’s resolution, modeled on New Hampshire’s, has passed its House, and is under consideration by the state Senate.
Democratic legislators have almost unanimously opposed these resolutions. They argue that, in a time of crisis, the federal government needs the support of the states, not their opposition; and that such resolutions are an attack on the Obama Administration. One Idaho Democrat described their resolution as “sticking a pencil in the eye of the federal government.” They wish to portray this as a red state, blue state thing. The mainstream media have been fond of describing the resolutions as promoting secession, being careful to invoke a Lincolnesque contempt on the whole idea.
This line of reasoning raises some interesting questions. Should the Constitution of the United States remain the supreme law of the land? If it should, and the federal government is violating it (examples of which have been extensively documented), then why should the federal government be supported in its violation? Similarly, if the Obama Adminstration is obeying the Constitution, why should an assertion of state sovereignty under that Constitution be construed as an attack?
Those who argue that the states have no right to secede hold that the Constitution never justified state sovereignty. To them, it is not a pact between the states and the federal government, but a pact between the people and the federal government. It seems clear to this writer (and to James Madison in Federalist #39) that it is a contract between the states and the federal government. Therefore, if the federal government is the party dissolving the Constitution, the states are no longer bound by a compact that no longer exists.
However, a contrary argument will produce the same result. If the federal government no longer carries out all of the purposes stated in the Preamble – to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty; then the people are no longer bound by obedience to a government that has broken its commitment to them.
State sovereignty resolutions are a call back to the free society our Founding Fathers created. Far from being secessionist, they provide the best hope of preserving the union.
Harold Thomas publishes The Ohio Republic, a blog advocating state sovereignty, at www.ohrepublic.info. He is a resident of Columbus, Ohio, and is actively working for the passage of Ohio’s state sovereignty resolution. He may be contacted at email@example.com.