, February 05, 2009
New Hampshire and Washington legislators reaffirm states' rights UPDATE: 8 more states
I'm having difficulty deciding which recently-introduced legislation I like better: New Hampshire's House Concurrent Resolution 6 "affirming States’ rights based on Jeffersonian principles" or Washington State's House Joint Memorial 4009 "claiming state sovereignty under the Tenth Amendment"
On initial inspection, the New Hampshire resolution is superior. It's a beautifully written document and by far the more radical. The preambulatory clauses tell the history of New Hampshire's contribution to the US Constitution's Ninth and Tenth Amendments and the active clauses lay out and affirm an effective, detailed, and well-explained case:
That the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a General Government for special purposes, -- delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government
My favourite part of the resolution is the end, which asserts the doctrine of nullification and calls for a dissolution of the Union should the US Government extend its reach beyond certain limits:
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 United States of America by the Constitution for the United States of America and which serves to diminish the liberty of the any of the several States or their citizens shall constitute a nullification of the Constitution for the United States of America by the government of the United States of America. Acts which would cause such a nullification include, but are not limited to:
I. Establishing martial law or a state of emergency within one of the States comprising the United States of America without the consent of the legislature of that State.
II. Requiring involuntary servitude, or governmental service other than a draft during a declared war, or pursuant to, or as an alternative to, incarceration after due process of law.
III. Requiring involuntary servitude or governmental service of persons under the age of 18 other than pursuant to, or as an alternative to, incarceration after due process of law.
IV. Surrendering any power delegated or not delegated to any corporation or foreign government.
V. Any act regarding religion; further limitations on freedom of political speech; or further limitations on freedom of the press.
VI. Further infringements on the right to keep and bear arms including prohibitions of type or quantity of arms or ammunition; and
That should any such act of Congress become law or Executive Order or Judicial Order be put into force, all powers previously delegated to the United States of America by the Constitution for the United States shall revert to the several States individually. Any future government of the United States of America shall require ratification of three quarters of the States seeking to form a government of the United States of America and shall not be binding upon any State not seeking to form such a government;
The Washington resolution is much shorter, less elegant, and is directed towards the US President, not the several states like New Hampshire's. But there is much to be said for concision. Though the 18th century literate American provincial may have been at ease with the embellished language of the New Hampshire resolution, to the average 21st century reader it may pass from articulacy to prolixity; for him, NH HCR6 might as well be as incomprehensible and protracted as the USA PATRIOT Act or the Emergency Economic Stabilization Act of 2008.
The preamble of the Washington resolution lays out a simple textual and historical case for a states' rights reading of the US Constitution that should be intelligible to any college graduate (but not to any Supreme Court Justice):
WHEREAS, The Tenth Amendment to the Constitution of the United States specifically provides that, “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.”; and
WHEREAS, The Tenth Amendment defines the total scope of federal power as being those powers specifically granted to it by the Constitution of the United States and no more; and
WHEREAS, Federalism is the constitutional division of powers between the national and state governments and is widely regarded as one of America’s most valuable contributions to political science; and
WHEREAS, James Madison, “the father of the Constitution,” said, “The powers delegated to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, [such] as war, peace, negotiation, and foreign commerce. The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people.”; and
WHEREAS, Thomas Jefferson emphasized that the states are not ”subordinate” to the national government, but rather the two are “coordinate departments of one simple and integral whole. The one is the domestic, the other the foreign branch of the same government.”; and
WHEREAS, Alexander Hamilton expressed his hope that “the people will always take care to preserve the constitutional equilibrium between the general and the state governments.” He believed that “this balance between the national and state governments forms a double security to the people. If one [government] encroaches on their rights, they will find a powerful protection in the other. Indeed, they will both be prevented from overpassing their constitutional limits by [the] certain rivalship which will ever subsist between them.”; and
WHEREAS, The scope of power defined by the Tenth Amendment means that the federal government was created by the states specifically to be limited in its powers relative to those of the various states;
You can read each resolutions below the break and decide which you prefer for yourself.
UPDATE: A spate of these "10th Amendment resolutions" at the state level seems to have been sparked with last year's failed HJR 1089 [pdf] in Oklahoma "claiming sovereignty under the Tenth Amendment to the Constitution of the United States over certain powers; serving notice to the federal government to cease and desist certain mandates; and directing distribution." The sponsor of that bill, Rep. Charles Key (R) is working on introducing similar legislation (HJR 1003) [rtf] this year which he says is likely to pass as a Republican-controlled Legislature convenes for the first time in state history. Also in 2009, "10th Amendment resolutions" have been introduced in Arizona (HCR 2024), Michigan (HCR 0004), Missouri (HR 212), while in Montana, HB 246 uses 10th, 9th, and 2nd Amendment reasoning for "an Act exempting from federal regulation under the commerce clause of the constitution of the United States a firearm, a firearm accessory, or ammunition manufactured and retained in Montana..."
With New Hampshire and Washington, that brings the total number of these resolutions introduced in 2009 to 7.
UPDATE 2: Dave Nalle writes, in "State Sovereignty Movement Quietly Growing":
As things stand right now it looks like Oklahoma, Washington, Hawaii, Missouri, Arizona, New Hampshire, Georgia, California, Michigan and Montana will all definitely consider sovereignty bills this year. They may be joined by Arkansas, Colorado, Idaho, Indiana, Alaska, Kansas, Alabama, Nevada, Maine and Pennsylvania where legislators have pledged to introduce similar bills. Twenty states standing up to the federal government and demanding a return to constitutional principles is a great start, but it remains to be seen whether legislatures and governors are brave enough or angry enough to follow through. As the Obama administration and the Democratic Congress push for more expansion of federal power and spending that may help provide the motivation needed for the sovereignty movement to take off.
If you're keeping count, that brings us up to 10 states