by Nomad
The issue of "state's rights" is not at all new. In fact, the debate goes back before the founding of the nation. However, when Tea Party House members drafted the Repeal Amendment, courtesy of Koch-funded ALEC, it threatened to unravel the union that holds the United States together. And despite George Washington's warning, they very nearly succeeded.
Back in 2010, after taking over the House of Representatives, the Tea Party faction of the GOP proposed a "states' rights" change in the Constitution. Sponsored by Utah's Rob Bishop, the proposal was called the Repeal Amendment. It was designed to give states the authority to veto federal laws and regulations. Under this proposed amendment, supporters aimed “to push back the federal government's encroachment on sovereign states rights."
Any federal law, like healthcare, abortion or gun control laws and even civil rights legislation, would be up for a vote in state legislatures. The resolution read:
“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”
The Cato Institute, a right-wing think tank and another 501(c)3 organization, supports the idea saying:
At present, the only way for states to contest a federal law or regulation is to bring a constitutional challenge in federal court or seek an amendment to the Constitution. A state repeal power provides a targeted way to reverse particular congressional acts and administrative regulations without relying on federal judges or permanently amending the text of the Constitution to correct a specific abuse.
Of course let’s not forget that the Cato Institute was co-founded by Charles Koch, co-owner of Koch Industries known for its financing of the Tea Party. So enthusiastic support for challenging the authority of the federal government shouldn’t come as a surprise.
It is in fact a fundamental change to the balance of powers and not merely a corrective measure. In effect, it would invalidate the “united” part of the “United States” since state legislatures would have final say-so on the law of the land. The United States would, therefore, become about as united as say, the United Nations.
In addition, the legislative branch in Congress would suddenly become irrelevant, since the eventual application of any congressional law would be subject to a vote in each state. The structure of the two houses of Congress prevents smaller less-populated states, most of which happen to be red states, from having undue influence or from dictating to the more populated states what national policy would look like. Under this proposed change, all that would change.
The implications and the ensuing unnecessary complications are mind-boggling.
Power Grab: ALEC and The Koch Brothers
According to Daily Kos:
ALEC’s agenda is to gut the laws against environmental degradation, health insurance abuses, corporate corruption and other obsessions of the big-money interests" in order to "destroy majority rule in this country."
One point to add at this juncture. In light of the recent scandal at the IRS, it is worth noting that ALEC is another 501(c)3 organization with its donors eligible to write-off their contributions. As such, the organization is not supposed to do any "substantial" lobbying. On its annual tax returns, officials for ALEC declared that the organization had not engaged in any lobbying activities.
As NPR noted back in April 2012, Common Cause objected :
"We've actually seen their talking points, that are the same talking points that lobbyists use," says Bob Edgar, president of Common Cause. "We've seen their emails, the same emails that go to legislators, trying to lobby. All of that looks and smells like lobbying to us."Finally, Lisa Graves writing for the The Nation, observes that ALEC, like the Cato Institute and the Tea Party Congress, owe a lot to the Koch brothers.
No one knows how much the Kochs have given ALEC in total, but the amount likely exceeds $1 million—not including a half-million loaned to ALEC when the group was floundering... As a result, the Kochs have shaped legislation touching every state in the country. Like ideological venture capitalists, the Kochs have used ALEC as a way to invest in radical ideas and fertilize them with tons of cash.In many ways, Graves notes, the Koch Brothers and ALEC are operate in tandem.
ALEC and the Kochs often pursue parallel tracks. Just as ALEC “educates” legislators, Koch funding has helped “tutor” hundreds of judges with all-expenses-paid junkets at fancy resorts, where they learn about the “free market” impact of their rulings. But ALEC also operates like an arm of the Koch agenda, circulating bills that make their vision of the world concrete. For a mere $25,000 a year, Koch Industries sits as an “equal” board member with state legislators, influencing bills that serve as a wish list for its financial or ideological interests.
The Repeal Amendment perhaps was intended as the Koch Brothers’ coup de grâce - the killing blow- against the federal government. Daily Kos article notes that passage of this Repeal amendment would be "a transparent political maneuver to institutionalize the power of minority "red states" to strike down the will of the majority of Americans."
The states’ rights issue has long been a contentious one. It was used to form the basis of the South's secession before the Civil War. But the debate goes back even further, to the very creation of the United States and before the creation of the Constitution.
The Articles of Confederation: The Failed Model
The Preamble to the Constitution uses the familiar phrase "in order to form a more perfect Union" and yet few of us are aware what that actually refers to. (I know I wasn't.) There is an interesting story behind that phrase that sheds some light on the states’ rights issue.
Prior to the Constitution, the only basis for the nation's creation- its founding document- was the Articles of Confederation. Its second Article specified that:
Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.
In many ways the Articles, adopted by the Congress, November 15, 1777 were emergency measures designed to form a united front against the British following the Declaration of Independence.
While the Articles granted to Congress considerable authority, its powers were qualified, in some respects carefully, for the protection of the states' rights. Nevertheless, as The Constitutional History of the United States tells us, the sovereignty of the individual states was largely make-believe:
it was a time of revolution and of reconstruction; and in consequence there was and is some uncertainty about the nature of the governmental system. The states frequently acted as if they had real authority and not merely nominal sovereignty. In the Articles of Confederation they announced their separate sovereignty, but their actual incapacity to act as independent sovereignties was often at variance with their presumption. The necessities of the situation indicated plainly that safety was in union, in coöperation; and so one may believe, if one chooses to do so, that the reality of interdependence was sufficient to overthrow any legal fiction of independence and separate existence.
The founding fathers understood that, in a time of crisis, even an agreed legal fiction was better than complete disunity. As signer of the Declaration of Independence, Richard Henry Lee pointed out in May 26, 1777 in a letter to the Governor of Virginia:
"Our enemies, and our friends too, know that America can only be conquered by disunion.(Clearly not a lesson lost on the Koch Brothers.)
One way of dividing the nation was to create jealousies between classes, and between states. The Articles of Confederation, despite its problems, provided a timely counter-measure against the inherent weaknesses in the national structure. Without some kind of mutual agreement, the founding fathers understood how easily it would be for the British to divide and conquer the emerging nation.
Following the abuses of power by the monarchy in England, the colonists could not conceive of a government as a tool for the people. That decentralized model found in the Articles of Confederation was the child of reactionary distrust in the imperial state. But as they soon found, it was a poor basis for an effective government.
As our source reminds us:
There was the age-old feeling that government is inevitably the enemy of man and not his servant. We cannot neglect the effect of the long struggle in history to curb government lest it act the tyrant. Government in America was not as yet securely in the hands of the people-at-large (if there be any such security anywhere at any time), but a long step forward had been taken. "It takes time", however, as John Jay remarked, "to make sovereigns of subjects" — a wise saying. It took time for the people to realize that the government was their own.
It would take time to understand that only through a unified approach- a federalization of authority- could there be any hope for the new nation.
* * * *
On the whole, however, the Articles of Confederation was a failed model. After an armed uprising called the Shay’s rebellion, reform of the Articles of Confederation was widely seen as necessary. Protests at state policy had led to open rebellion and the state militia had been unable to maintain law and order. The evidence showed that states were unable to manage their own affairs, neither legislatively nor financially.
On February 21 1787, Congress called a convention "for the sole and express purpose of revising the Articles of Confederation". One of the key points that the Congress was tasked to address was the creation of a federal Constitution "adequate to the exigencies of government and the preservation of the Union."
In other words, the writing of the Constitution formerly outlined the what we now know as the federal government of the United States, its limits, its powers, and its relationship with the states that formed the union. And, more importantly, it was a revision, a correction of the weaknesses in the former Articles of Confederation. One of those misjudgments was the idea of complete state sovereignty.
Washington's Warning
That point was underscored in the United States' first president's Farewell Address delivered in 1796 (but written much earlier) In that final presidential letter to the nation, George Washington stressed that the nation was a unified force and not merely a collection of independent nation-states, He wrote:
The unity of Government, which constitutes you one people, is also now dear to you. It is justly so ; for it is a main pillar in the edifice of your real independence, the support of your tranquility at home, your peace abroad; of your safety; of your prosperity; of that very Liberty, which you so highly prize.Then Washington gave this unmistakable warning:
But as it is easy to foresee, that, from different causes and from different quarters, much pains will be taken, many artifices employed, to weaken in your minds the conviction of this truth ; as this is the point in your political fortress against which the batteries of internal and external enemies will be most constantly and actively (though often covertly and insidiously) directed, it is of infinite moment, that you should properly estimate the immense value of your national Union to your collective and individual happiness ;
The unity of governance- undivided by selfish interests of regions or states, must be protected.
In the efficacy and permanency of your Union, a government for the whole is indispensable..
He also advised the people to "indignantly” frown "upon the first dawning of every attempt to alienate any portion of the country from the rest or to enfeeble the sacred ties which now link together the various parts."
In modern English, he advised the American people to reject any discussion of secession or breaking of the unity whenever it is mentioned.
Years later, in the light of the highly-contested matter of slavery, the issue of the relative independence of the member states came up with a vengeance. Many in the South felt that the "sacred ties" could be dissolved whenever any State desired.
Based on this flawed approach and ignoring the wise warning Washington gave his people, the Southern States seceded from the Union which in turn, nearly destroyed the nation. That bloody war has left wounds that have never healed.
(This hidden history does explain why the North was called “The Union” and the South was called “The Confederacy.” Actually it could be seen as more of a battle between the Federalists and the proponents of States’ Rights.)
Constitution and the Consent of the Governed
Unlike the Articles of Confederation, which was, after all, a compact between states, the Constitution derived its legitimacy not as agreement between governors but through the all-important "consent of the governed." It is not merely flowery phrasing, therefore, that the preamble of the Constitution begins “We, the people..”
In the Articles, allegiance was owed to the State, not the Nation.
The citizen was not, under the theory of States' Rights, in contact with the National Government. He owed allegiance to his State, and the State, in turn, dealt with the Nation.Speaking of the Constitution, President Monroe noted,
"The people, the highest authority known to our system from whom all our institutions spring and on whom they depend, formed it."
That is no small point. During the Constitutional convention, one scholar from Pennsylvania, James Wilson, gave this view about the relative authorities of States to Federal authority:
"A citizen of America is a citizen of the general government, and is a citizen of the particular State in which he may reside. ... In forming the general government we must forego our local habits and attachments, lay aside our State connections, and act for the general good of the whole. The general government is not an assemblage of States, but of individuals.
With the coming of the Constitution, the states were to take a back-seat to the federal government.
If you think about it, it makes sense.
Either the state or the federal government must take precedence. A citizen should not be torn between the laws of the states which might conflict against his allegiance to his nation. The states, as parties to the Constitutional contract, agreed to forfeit that fictional sovereignty for the sake of a common unified defense and shared treasury. Therefore, the States’ Rights issue was settled long ago when the Constitution was drafted and signed.
If you think about it, it makes sense.
Either the state or the federal government must take precedence. A citizen should not be torn between the laws of the states which might conflict against his allegiance to his nation. The states, as parties to the Constitutional contract, agreed to forfeit that fictional sovereignty for the sake of a common unified defense and shared treasury. Therefore, the States’ Rights issue was settled long ago when the Constitution was drafted and signed.
Another problem with the failed model is that of the expense of a common defense. According to historical sources:
"It turned out in practice that some of the States signally failed in emergencies to make their contributions in the common treasure. Indeed only New York and Pennsylvania paid their full proportion of the cost of the Revolution. One state, which had suffered none of the ravages of war, contributed nothing.”
Today, the red states- where the call for States' Rights is the strongest- pay less in taxes to the common treasury than they take. Too often, the answers that these states have been found to balance their state budgets is to cut back on emergencies funds for disaster relief and preparedness. Instead they choose to ask for federal funding when faced with a crisis.
According to the book, Quarrels that Have Shaped the Constitution:
"There is no older issue in American politics than that of the relation between the federal government's powers and those of the individual states,...At no time have the differences subsided into more than uneasy sleep. The issue is bound to beset confederations of groups unwilling to lose their individual sovereignties and on the other to forgo the incontestable advantages of union... It is an issue tempting to interests- economic, political, social, religious- which see advantages now from one side, now from the other.
For those that wish to create confusion and mischief for the country, this particular issue is in short, the United States’ Achilles heel.
Attack of the Congressional Mischief Makers
In 2010, such state supremacy legislation, which mandated action against whatever federal legislation the state legislatures perceived as unconstitutional, was introduced in six states (Florida, Georgia, Michigan, Missouri, New Hampshire, and Oklahoma); however, none made it past the introductory stage.
On a national level, the newly elected Tea Party Congress attempted to complete its agenda with the so-called Repeal Amendment. Under the guidance of Big business lobbying organizations like ALEC, House Republicans attempted to return the nation to a failed system under the Articles of Federation where states had more autonomy. The resolution found a surprisingly amount of support, but only among Republicans.
Here’s a list of the co-sponsors:
Eric Cantor, described the resolution like this:The Repeal Amendment would provide a check on the ever-expanding federal government, protect against Congressional overreach, and get the government working for the people again, not the other way around. In order to return America to opportunity, responsibility, and success, we must reverse course and the Repeal Amendment is a step in that direction.”
Speaker of the South Carolina House of Representatives, Bobby Harrell, proclaimed:
The Repeal Amendment may be the only way to push back the federal government's encroachment on sovereign states rights."
Gregg Abbot, Attorney General of Texas, a possible candidate for Governor in 2014 if Governor Rick Perry doesn't seek a fourth term, also saluted the legislation:
The Repeal Amendment would create an extraordinary remedy to fight back against the most extraordinary instances of federal overreach.”“An extraordinary remedy” is a phrase few would argue with.
Fox News Senior judicial analyst, Judge Andrew P. Napolitano, ironically (but not too surprisingly) asserted that the Founding Fathers would have approved of the idea:
“It is clear that many in Washington, DC have lost sight of the Founding Fathers’ concept of a limited federal government..It will give states the ability to overturn misguided, short sighted and overreaching federal policies that are not supported by the American people. I applaud those who have proposed and drafted the Repeal Amendment. I am proud to support it and encourage others to support it as well.”Republican Congressman Rob Bishop of Utah, sponsor of the resolution said:
When the federal government accumulates more power, states and individuals have less. The Repeal Amendment will reverse this trend by empowering states and the people with a powerful check against overreaching federal laws and regulations. This amendment will help restore balance essential to the preservation of all American liberties, which power-hungry Washington bureaucrats often attempt to undermine. I’m proud to sponsor the Repeal Amendment in Congress because it will provide a powerful tool to reduce the concentration of power in Washington and return power, money, and decision-making back to the states and the people respectively."
Ultimately the resolution, HJ Res 62, went absolutely nowhere... like so much of the nonsense introduced in the 112th Congress. Proposed on May 12 2011, it was immediately referred to the House Judiciary Committee, where it was barely even discussed and certainly not enacted.
Thankfully Rob Bishop’s proposal- hailed by the conservative groups and Tea Party organizations, applauded by Fox News, died a very quiet lonely death. It was a big pile of wasted effort. But then the same could be said of the whole two years of the Tea Party-infested 112th Congressional session.
Despite the noise and all that arrogance, all that scheming by moneyed interests, the Constitution proved stronger than those who wanted to undermine it.
We may not be so lucky the next time.
Related articles
