FOR TOO LONG, the concept of “states’ rights” has had a negative connotation. Racial strife in the post-Civil War era made taboo the notion of returning power to the states. But allocating power to the several states was never about race; it was about a constitutional framework that hoped to limit the mistakes of government and provide the greatest amount of freedom and decision-making to the people in the several states. Rediscovering the principles of dividing power within the republic is the best guarantor that the errors of the past don’t return on a much larger scale.
At the end of the first decade of the twenty-first century, we are a divided nation-precisely because we have chosen to consolidate government by unleashing it from its constitutional moorings. A one-size-fits-all policy dictated by unelected bureaucrats and judges in Washington D.C. has not brought the country together-to the contrary, it has torn us apart. For example, three of the most divisive issues of our time will not be decided by the people, but most likely by the Supreme Court of the United States.
The citizens of Arizona, facing fiscal and social upheaval, decided to restore the rule of law to their state’s border. Arizona’s elected representatives sensibly voted to codify federal immigration policy under their inherent authority to police the law-only to find that a federal court, at the behest of the Justice Department, rejected the legislation. The judge went so far as to suggest that Arizona’s enforcement of immigration law would place an impermissible burden on federal authorities1. The state be damned.
In California, a federal judge overruled the express will of the voters as reflected in Proposition 8, which had defined marriage in the Golden State as between a man and a woman.2 The opinion was a fanciful case of legal reasoning that somehow found a constitutional right to same-sex unions, even though, as Chapter Five notes, marriage and family law has long been the province of the states. If the highest court in the land eventually upholds the decision, it will redefine the institution of marriage (for good or ill) for the entire country, not just California.
Finally, the fate of American healthcare, how we get it and how much, will also lie in the hands of the federal judiciary. The constitutionality of “Obamacare”-specifically, the mandate that all Americans must purchase a government-approved health plan-has been challenged by a number of states. And they have been given the green light to take the case forward.3 Here’s one possible reason: the so-called “fine” for refusing to purchase health insurance amounts to an unconstitutional direct tax on the average citizen. That is, there is no taxable event that would trigger an indirect tax, such as the case with an excise tax. No, the president’s plan taxes you if you don’t do something.
The common thread in all three issues is the rise of a federal behemoth overwhelming the states and their citizens. Frankly, it matters less what side of the issue you’re on and more on whether you’ll have a meaningful say in the debate. If most of America feels frustrated, that’s why.
In fact, states’ rights is the elephant in the living room. What powers do the several states retain? Can we return to a constitutional framework envisioned by the framers? Or has the federal government permanently usurped the framers intent? And what would actually happen if one state decided to test the boundaries of Washington?
This book examines the constitutional and legal history from the framers to the Civil War, to the New Deal, and through the Warren Court. And after outlining the convoluted legal history that has unfortunately brought America to this constitutional precipice, I present a call to action with a new constitutional amendment designed to restore the fundamental tenants of federalism. As part of this new amendment, I ask every American to support an energetic reaffirmation of local control that allows for any state to peaceably leave the union (barring all other remedies of which the text outlines) thus providing the ultimate check on federal intrusion-and, in the process, helping to preserve the most effective constitutional design for freedom itself.
http://www.azcentral.com/ic/pdf/0729sb1070-bolton-ruling.pdf (Accessed July 2010)
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/08/04/MNQS1EOR3D.DTL (Accessed July 2010)
http://www.bbc.co.uk/news/world-us-canada-10847519?print=true (Accessed July 2010)