The states and the people vs. the U.S. of Centralization

Paul Jacob
Sunday, July 26, 2009

State Senator Randy Brogdon is running for the position of Oklahoma governor. A principled, issues-oriented candidate, he naturally has big plans for his state. But one of his most interesting ambitions is this: To join the elite ranks of governors Phil Bredesen (Tennessee) and Sarah Palin (Alaska), who are gubernatorial signatories to their state’s resolutions asserting state sovereignty.

Brogdon was one of the major players in Oklahoma’s senate backing of House Concurrent Resolution 1028, in May. He had previously supported a similar measure, with teeth, which the state’s governor had vetoed. The current resolution requires no further signature; it has already been sent to the U.S. president and Congress.

But from what I can tell Brogdon would like to put his John Hancock on such a declaration.

After all, Governor Palin made big news by signing her state’s resolution. Precisely what her signature signified became yet one more datum to dwell on after she had signed her own resignation. But the real significance of Alaska’s resolution is the same as in Tennessee and Oklahoma and the other states that have passed sovereignty resolutions:

Something is changing in our political culture.

All these resolutions have passed state legislatures. It’s not just lone “whacko” governors doing the deed. Deliberative bodies have decided these measures. Something big may be afoot.

What is it?

Opposition to bigness and “limitlessness” in the federal government.

Randy Brogdon expressed the idea well enough. He said that Oklahoma is telling folks in Washington, DC, “loud and clear to end all federal mandates that are beyond the scope of powers specifically outlined in the Constitution.” He specifically mentioned the Patriot Act, No Child Left Behind and some provisions of Homeland Security as federal usurpations of state powers.

It all comes down to the Tenth Amendment to the U.S. Constitution: “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.” It is upon this provision that these state sovereignty resolutions rest. This drive has been dubbed the Tenth Amendment Movement.

New Hampshire’s sovereignty resolution makes the case especially pointed:

[T]he several States composing the United States of America, are not united on the principle of unlimited submission to their General [federal] Government . . . and . . . whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force. . . .

The trick, of course, will be to make the theoretically void the practically void. States rights, though argued from Jefferson’s time onward, have lost traction with the rise of the American nation state. Nowadays, of course, state and local governments find themselves relying on the federal government’s illegal largesse, so breaking free becomes especially difficult for politicians who like to spend money. For these and other reasons, federalism, with it the doctrine of delegated powers, is honored more often in the breach than in the act.

And these resolutions are, at present, declarations of intent. But when shove comes to push us around, what will happen?

The biggest recent showdowns have occurred over medical marijuana. The people of states like California and Oregon (and many others), taking up their powers through petition and the citizen initiative, have instituted laws more lenient on one psychoactive drug than the federal government has, in effect legalizing cannabis for certain uses. The federal government retaliated, arresting citizens distributing the drug legally by state law. A number of these legal operators have been jailed in this individual rights/state powers/ federal usurpation war.

A related issue confronts the delegated power doctrine perhaps more directly, more explicitly as a principled issue of state prerogative. The issue is about medicine. Not puff-puff medicine, but socialized medicine.

While the Democratic-controlled Congress, under the leadership of the much-admired (but increasingly disappointing) President Barack Obama, is pushing for a meddlesome “universal coverage” medical policy package, a lot of people are becoming increasingly apprehensive. In Arizona, politicians are trying to do something about it.

Last year, an initiative proposition, Proposition 101 — the Freedom of Choice in Health Care Initiative — went down to a narrow defeat. The defeat was so narrow that proponents convinced the Arizona legislature to repackage the measure’s ideas into a referendum to be held next year, the Arizona Health Insurance Reform Amendment.

As I discussed in a recent Common Sense radio spot, this proposed constitutional amendment has some interesting features:

The first plank states that “a law or rule shall not compel, directly or indirectly, any person, employer or health care provider to participate in any health care system." The second plank says that no one shall be fined for paying — or accepting payments — for otherwise lawful health care services.

These fly in the face of our federal government’s current and demonstrated meddling intent.

What I like about this measure, especially, is the twist it gives on the Tenth Amendment. The Tenth Amendment does not just defend states’ powers against federal government’s expanding powers. It defends the people’s powers, too. And what can those be?

Well, the Arizona measure began as an iniatiative and now goes to the general ballot as a legislative referral. It recognizes the people’s power to make law. It recognizes the people’s sovereignty. Just like the Tenth Amendment’s recognition of “powers . . . reserved . . . to the people.”

And it is placing this people power directly against the federal government.