Thursday, July 23, 2009

Limited Government and the Spirit of Liberty

In his spirited rejoinder to my "Thoughtful Conservatism" post, Harold alerts us to this very exciting development in American politics. There is a possible growing movement among state governments to reassert their status as sovereign states, and not just administrative units for implementing federal programs and taking care of some small stuff when the feds let them.

Here is an excerpt from "Palin to feds: Alaska is sovereign state: Constitutional rights reasserted in growing resistance to Washington" (WorldNet Daily, July 20, 2009) by Chelsea Schilling:

Gov. Sarah Palin has signed a joint resolution declaring Alaska's sovereignty under the Tenth Amendment to the Constitution – and now 36 other states have introduced similar resolutions as part of a growing resistance to the federal government.

Just weeks before she plans to step down from her position as Alaska governor, Palin signed House Joint Resolution 27, sponsored by state Rep. Mike Kelly on July 10, according to a Tenth Amendment Center report. The resolution "claims sovereignty for the state under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States."

Alaska's House passed HJR 27 by a vote of 37-0, and the Senate passed it by a vote of 40-0.

According to the report, the joint resolution does not carry with it the force of law, but supporters say it is a significant move toward getting their message out to other lawmakers, the media and grassroots movements.

Alaska's resolution states: "Be it resolved that the Alaska State Legislature hereby claims sovereignty for the state under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States. Be it further resolved that this resolution serves as Notice and Demand to the federal government to cease and desist, effective immediately, mandates that are beyond the scope of these constitutionally delegated powers."

While seven states – Tennessee, Idaho, North Dakota, South Dakota, Oklahoma, Alaska and Louisiana – have had both houses of their legislatures pass similar decrees, Alaska Gov. Palin and Tennessee Gov. Phil Bredesen are currently the only governors to have signed their states' sovereignty resolutions.

The Tenth Amendment states that: "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." It has been largely ignored over the last 200 years, most glaringly in the last fifty to a hundred years when the federal government has been driving its hands into every aspect of American life.

Justice Harry Blackmun announced the irrelevancy of state sovereignty, and thus also of federalism and the Tenth Amendment, in Garcia v. San Antonio Metropolitan Transit Authority (1985). The Court faced the task of deciding the relationship between the scope federal power through its constitutional authority to regulate interstate commerce (the "commerce clause") and the sovereignty of the states.

With this decision, the Court, ignoring the principle of stare decisis (ironically it is the author of Roe v. Wade who writes the opinion), overturns National League of Cities v. Usery (1976) in which the Court held, "The essence of our federal system is that, within the realm of authority left open to them under the Constitution, the States must be equally free to engage in any activity that their citizens choose for the common weal."

Justice Lewis Powell states his dissent quite forcefully:

Whatever effect the Court's decision may have in weakening the application of stare decisis, it is likely to be less important than what the Court has done to the Constitution itself. A unique feature of the United States is the federal system of government guaranteed by the Constitution and implicit in the very name of our country. Despite some genuflecting in the Court's opinion to the concept of federalism, today's decision effectively reduces the Tenth Amendment to meaningless rhetoric when Congress acts pursuant to the Commerce Clause.

In her dissent, Justice Sandra Day O'Connor objects: "If federalism so conceived and so carefully cultivated by the Framers of our Constitution is to remain meaningful, this Court cannot abdicate its constitutional responsibility to oversee the Federal Government's compliance with its duty to respect the legitimate interests of the States." She sounds this alarm: "there is now a real risk that Congress will gradually erase the diffusion of power between State and Nation on which the Framers based their faith in the efficiency and vitality of our Republic."

She concludes:

The problems of federalism in an integrated national economy are capable of more responsible resolution than holding that the States as States retain no status apart from that which Congress chooses to let them retain. The proper resolution, I suggest, lies in weighing state autonomy as a factor in the balance when interpreting the means by which Congress can exercise its authority on the States as States. ...[T]he autonomy of a State is an essential component of federalism. If state autonomy is ignored in assessing the means by which Congress regulates matters affecting commerce, then federalism becomes irrelevant simply because the set of activities remaining beyond the reach of such a commerce power "may well be negligible."
In United States v. Lopez (1995), Chief Justice William Rehnquist, writing for a 5-4 majority, put the breaks on the Court's erasure of this fundamental principle of our system of republican liberty.

To uphold the Government's contentions here, we have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do.

America is a resilient nation. Just when it seems that she is laying down in the graveyard of civilizations, she draws new life from her Christian heritage and founding principles. Remember 1979? It would be just like this nation to rediscover and reassert the principle of limited government just when the pitch dark shadow of Leviathan's triumph seems to be suffocating liberty in the political equivalent of nuclear winter.

Now, can we also get up the courage to impeach Supreme Court justices who regard international law as authoritative in their decision-making?

"It is the common fate of the indolent to see their rights become a prey to the active. The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt."
- John Philpot Curran (1750–1817).

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