States Rights v.

Federalism

States Rights v. Federalism

States Rights v. Federalism Robert N. Reges Professor Richard Lauria August 29, 2010

States Rights v. Federalism Abstract This paper will briefly describe, explore and discuss the rights that individual States have in accordance with the United States Constitution, especially rights imposed under the Tenth Amendment and compare those rights with those of the Federal government. In short the Tenth

Amendment of the U.S. Constitution says 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 (Amendment 10 - Powers of the States and People, 1995-2010). .

States Rights v. Federalism STATES RIGHTS v. FEDERALISM

The American flag; thirteen stripes and fifty stars on a blue field, with each star representing one state. As Americans we honor the American flag and pay our respect to it with the Pledge to Allegiance; embedded in the Pledge of Allegiance are these words: One Nation under God, signifying unity of the States into one nation. We often think and hear of the United States of America as being one nation; but in actuality, the United States of America is embodied as fifty individual, sovereign States that makeup this one nation; hence, the term United States signifying that the States are united. So, what does this mean? According to Dictionary.com, the definition of sovereign is Self-governing; independent (Sovereign, 2010) . People do not often think of each State of the union as sovereign, in fact it is contrary to what we are taught in school; but in literal terms the States that encompass the United States of America are indeed separate entities that are free to self-govern, to self rule. Coming on the heels of the Articles of Confederation, the United States was birthed on a concept of federalism; a political concept in which the state governments work hand-in-hand with the federal government. A political process so unique that there is the sharing of governmental powers, but according to the Constitution there is also a clear division of powers between the states and the federal government; a political process that guarantees the States of their sovereignty while being part of the larger federation. Since the end of the American Civil War, it appears that State powers are diminishing while the powers of the federal government have steadily been increasing; a share violation of the vision of our founding fathers and the U.S. Constitution.

States Rights v. Federalism Our founding fathers were so entrenched by the concept that the states actually be sovereign from the federal government that they wrote it into the Bill of Rights as the Tenth Amendment; 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 (Amendment 10 Powers of the States and People, 1995-2010). This is actually based on an earlier provision of the Articles of Confederation in 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 (Infowars resource Page: State's Rights and Sovereignty, 2009). So, lets explore what this really means, if each State is truly sovereign of the federal

government, can each State literally tell the federal government to shove it? Goes each State has the power, the authority or even the right to tell the federal government that the State is not going to follow or obey federal laws? Or, what if one of the States actually wanted to secede from the union; do they have the right to do so? I guess it all depends on your interpretation of the Tenth Amendment. We cannot have a serious dialogue about States rights versus federalism without examining the thoughts of our founding fathers. Choosing one founding father over another founding father is difficult to do, since our history is full of many great figures to pick from and there are just as many great quotes to quote from. But Thomas Jefferson is probably one of the greatest members of this elite group of people; after all he authored the Declaration of Independence. But, even more so, if we investigate some of his most infamous quotes it gives us some insight as to his mind set when it comes to people and state rights versus the federal government rights. Jefferson was not for big government, Jefferson was for the individual, for

States Rights v. Federalism the State and he said When the people fear their government, there is tyranny; when the

government fears the people, there is liberty. This quote can be interpreted to mean that people should not fear the government, but it is good that the government fear the people. It re-instills the fact that the people run the government and not visa-versa. And when the government supersedes its power or authority, the people will intervene. Another famous Jefferson quote is An elective despotism was not the government we fought for. Jefferson recognized that over time, just like England, that even a democratic society may grow so huge that it may start to corrupt itself. Jefferson, through this quote, reminds Americans that when the federal government starts to transgress, making laws that repress our rights and freedoms, its time again to fight back and that is what the States are doing. Although not a founding father Abraham Lincoln said We, the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution, but to overthrow men who pervert the Constitution." This quote from Lincoln was in response the fear that federal officials, out of fear of an uprising, wanted to put a national band on citizens owning guns, a clear Second Amendment rights issue; the right for every citizen to bear arms. Lincoln felt that as long as citizens had the right to be armed, the federal government would mind their abusive powers; in Lincolns mind it acted as a systematic check and balance between the States and the Federal governments. I believe the best argument to support the States individual sovereignty is the fact each State is represented at the federal level by elected representatives of that State. The federal government would not exist if it was not for the State representatives; this is not just faulty logic, this is a fact of democracy. If the individual States did not possess sovereignty, then they would not be free to choice their federal representatives, the federal government would do it for them.

States Rights v. Federalism If the States were not sovereign themselves they would not be able to raise their own army (the National Guard), have their own head of state (governor), their own form of state government, or pass their own laws, or raise their own commerce.

The states definitely believe they have this sovereign authority, they are taking their right of sovereignty under the constitution very seriously; there is definitely a state rights grassroots movement going on throughout the United States. In response to the perceived increased amount of federal infringement on the states and because the states are tired of the federal government passing laws that they feel violates the Constitution, states are turning to the Tenth Amendment for resolutions; this is called nullification. Nullification is When a state nullifies a federal law, it is proclaiming that the law in question is void and inoperative, or non-effective, within the boundaries of that state; or, in other words, not a law as far as that state is concerned (The 10th Amendment Movement, 2010). According to States Stand For Constitutional Sovereignty webpage, as of March 16, 2010 over 40 States have decided to declare their sovereignty against the federal government (States Stand For Constitutional Sovereignty United We Stand So That Freedom Will Ring True!, 2010). Deep-rooted in this movement is the right of the state to ignore federal laws that are either deemed unconstitutional or that place an undue burden on the state or its people. A good example of states defending the constitution and opposing the federal government surrounds federal gun control laws versus the right of the state or the people to be armed. The Second Amendment of the Bill of Rights says A well regulated Militia, being necessary to the security of a Free State, the right of the people to keep and bear Arms, shall not be infringed. What does this mean? It simply means that people have the right to do whatever it takes to protect themselves, to guarantee their security, and to protect their property. What doesnt this

States Rights v. Federalism say? It doesnt say that the federal government has this responsibility! It doesnt say that the federal government has the right to limit the ability of American citizens to defend themselves; thus it doesnt say that the federal government assumes the responsibility to defend American citizens. According to the Federal Firearms Regulation Reference Guide 2005 there are four federal laws or regulation that primarily govern firearms in the United States and they are: Gun Control Act, National Firearms Act, Arms Control Act, and 28 CFR Part 25 (Federal Firearms Regulations Reference Guide, 2005). Each one of these federal laws goes another step to limit or oppress the peoples rights to bear arms; thus guaranteeing their security--direct violation of the Second Amendment. According to Second Amendment Foundation Online there are

currently 44 states that have Constitutional provisions enumerating the Individual Right to Keep and bear Arms (The U.S. Constitution and 44 States have Constitutional provisions enumerating the Individual Right to Keep and Bear Arms, 2000-2005). Using The State of Wyoming as a cross-reference, Wyoming just passed the Wyoming Firearms Freedom Act; it becomes effective on July 1, 2010. HB0095 is getting ready to pass. An interesting component to this legislature is this provision (b) Any official, agent or employee of the United States government who enforces or attempts to enforce any act, order, law, statute, rule or regulation of the United States government upon a personal firearm, a firearm accessory or ammunition that is manufactured commercially or privately in Wyoming and that remains exclusively within the borders of Wyoming shall be guilty of a felony and, upon conviction, shall be subject to imprisonment for not more than two (2) years, a fine of not more than ten thousand dollars ($10,000.00), or both. The states are very serious about this and are using the Constitution to defend their rights.

States Rights v. Federalism It appears the United States Supreme Court agrees with the States that the Second Amendment gives Americans the right to possess fire arms and to defend themselves. In two recent court opinions, District of Columbia v. Heller and in 2009 McDonald v. City of Chicago, Illinois, the United States Supreme Court upheld the Second Amendment. Up until 2008, the District of Columbia law banned passion of handguns; it not only banned the carrying of unregistered firearms, but the law also prohibited the registration of handguns in the District of Columbia. Dick Heller was a special police officer, authorized to carry a weapon while on duty and applied for a registration certificate to keep a handgun at

home; the District refused him the certificate, so he filed a federal lawsuit seeking to overturn the law on Second Amendment grounds; the high court affirmed his petition (District of Columbia v. Heller, 2008). In 2009, Chicago had similar laws to the District of Columbia. The local laws prevented a person from owning or registering a firearm. Otis McDonald, an activist and private citizen wanted to carry a handgun for personal protection, but the law prohibited him from doing so; the U.S. Supreme Court once again upheld the Second Amendment. In the 214 page decision Justice Scalia writes: I joined the Courts opinion. Despite my misgivings about Substantive Due Process as an original matter, I have acquiesced in Courts incorporation of certain guarantees in the Bill of Rights because it is both long established and narrowly limited. This case does not require me to reconsider that view, since straightforward application of settled doctrine suffices to decide (McDonald ET AL. v. CITY OF CHICAGO, ILLINOIS ET AL., 2010). In another situation, just a couple of months ago the U.S. Congress passed legislature and the President signed into law the Healthcare Reform Act. There are two provision of this new law that the States immediately took exception to in regard to their sovereignty rights; the law

States Rights v. Federalism requires all citizens to obtain healthcare insurance or be fined and the law requires the States to

pay for a huge part of this new healthcare right, through the State Medicaid program, without the federal government reimbursing the states. The States claim this is a clear violation of the Commerce Clause to the Constitution. The Commerce clause can be found in Article 1, Section 8, clause 3 of the U.S. Constitution; the Commerce Clause has been argued and litigated in many cases over the years, historically the federal courts have sided with the federal government, but in recent history the courts have said that the federal government does not have endless powers over the states to regulate commerce and have sided with the states (Commerce clause, 2010). According to National Conference of State Legislatures (NCSL), deeply-rooted in this law is the simple fact that the federal government is forcing the American people to enter into a personal contract with an insurance company; the states argue it is unconstitutional for the federal government to demand that every (any) citizen be forced to enter into a financial contract with a private insurance company or be fined and that it is unconstitutional to then mandate that the states fund it; this is a clear violation of the Commerce Clause and a violation of the 10th Amendment (Cauchi, 2010). Congress argues that this is in the best interest of the American people and the nation as a whole; thus they have the power to mandate it. The States are opposing the federal government and executing their right to sovereignty by two direct means; they are passing state laws in opposition and they are suing the federal government in court. According to NCSL currently 36 have proposed legislation to limit, alter or oppose selected state or federal actions, including single-payer provisions and mandates that would require purchase of insurance. In general the measures, covering both 2009 and 2010, seek to make or keep health insurance optional, and allow people to purchase any type of coverage they may choose. (Cauchi, 2010). The language in State constitutional amendments

States Rights v. Federalism varies somewhat amongst the individual states, but they all have an underlying theme or intent and that is to halt the federal mandate!

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Again, according to the NCSL, Twelve Republican Attorney Generals have filed lawsuits claiming the federal government cannot mandate a citizen enter into a contract with a private company. Virginias Attorney General Ken Cuccinelli said With this law, the federal government will force citizens to buy health insurance, claiming it has the authority to do so because of its power to regulate interstate commerce, We contend that if a person decides not to buy health insurance, that person by definition is not engaging in commerce, and therefore, is not subject to a federal mandate." This is just another example of the way the states are flexing their constitutional rights of sovereignty under the 10th Amendment; there are many more examples like medical marijuana laws, State Sovereignty and Federal Tax Funds Act, Sheriffs First Legislation, Cap and Trade, Real ID Act, and Bring the Guard Home just to name a few more of the nullifications. It is crystal clear what the federal governments stance is on this issue; the federal government believes that the States fall under the jurisdiction of the federal government; the federal government does not see fifty sovereign states, they see one nation under God. And the sharing of powers is OK until the State opposes the federal government. There are many examples of the federal government flexing their muscles in our history. In most recent history, the federal government sued Arizona over State immigration laws. In the lawsuit the federal government says, that the statutory provisions contained in S.B 1070 are preempted by federal law. The Supremacy Clause of the United States Constitution makes federal law the supreme law of the land. The verdict goes on to say U.S.Const. art. VI, cl.2. The Supreme Court has consistently ruled that the federal government has broad and exclusive authority to

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regulate immigration, supported by both enumerated and implied constitutional powers. (United States of America vs. State of Arizona and Janice K. Brewer, Governor of the State of Arizona, in her Official Capacity, 2010) and Untied States District Judge Susan R. Bolton agreed with the Justice Department. In the Federalist Papers Alexander Hamilton wrote about Concerning Dangers from Dissensions Between the States and he said: A man must be far gone in Utopian speculations who can seriously doubt that, if these States should either be wholly disunited, or only united in partial confederacies, the subdivisions into which they might be thrown would have frequent and violent contests with each other. To presume a want of motives for such contests as an argument against their existence would be to forget that men are ambitious, vindictive, and rapacious. To look for a continuation of harmony between a number of independent, unconnected sovereignties in the same neighborhood would be to disregard the uniform course of human events, and to set at defiance the accumulated experience of ages. (Hamilton). Hamilton proclaims that the States cannot stand alone, that they can only survive through the federal government. July 4, 1776 was a very important date in American history; on this date thirteen sovereign colonies voted to band together as one nation and become thirteen sovereign States, they voted to form the United States of America. After reviewing the thoughts of the founding fathers there is no dispute as to their intent; the new States will maintain their individual sovereignty; while sharing powers with the new federal government they will unit together to form a stronger federal governmentOne Nation under God; hence Patrick Henrys infamous speak in March 1799 when he said as part of that speech united we stand...departed we fall. Bryce Shonka, of the Tenth Amendment Center said You, myself and everyone we know form the top of the food chain in the American system of government. It is up to We the People as

States Rights v. Federalism sovereigns- not the Federal legislative branch- to honor out the intentions of our nations

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founders Another good quote comes from the noted historian and well known author Thomas E. Woods , who said If the federal government has the exclusive right to judge the extent of its own powers, warned the Kentucky and Virginia resolutions authors (Thomas Jefferson and James Madison, respectively), it will continue to grow regardless of elections, the separation of powers, and other much-touted limits on government power. There is no disputing what our founding fathers intent was, the States maintain their sovereign powers while uniting their combined powers to be a more formable nation. Just as the thirteen original colonies were sovereign, the States definitely still believed that sovereignty under on the Tenth Amendment carried over to Statehood; so, you be the judge, does the federal government have exclusive powers to govern all the people in the all the States all the time or do the people and the states within the nations borders have individual rights, individual State sovereign powers as stated in the Constitution? The States believe they do and they are defending it!

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References Amendment 10 - Powers of the States and People. (1995-2010). Retrieved March 26, 2010, from U.S. Constitution Online: http://www.usconstitution.net/xconst_Am10.html Cauchi, R. (2010, March 26). National Conference of State Legislatures. Retrieved March 27, 2010, from State Legislation Challenging Certain Health Reforms, 2010: http://www.ncsl.org/?tabid=18906 Commerce clause. (2010). Retrieved March 27, 2010, from Cornell University Law School: http://topics.law.cornell.edu/wex/Commerce_Clause District of Columbia v. Heller. (2008, June 26). Retrieved July 26, 2010, from Cornell University Law School: http://www.law.cornell.edu/supct/html/07-290.ZO.html (2005). Federal Firearms Regulations Reference Guide. Washington, D.C.: Bureau of Alcohol, Tobacco, Firearms and Explosives. Hamilton, A. (n.d.). The Federalist Papers. Retrieved August 9, 2010, from The Library of Congress: http://thomas.loc.gov/home/histdox/fed_06.html Infowars resource Page: State's Rights and Sovereignty. (2009, february 17). Retrieved March 26, 2010, from The Exploding States Rights Movement & Martial Law: http://deigratia.wordpress.com/2009/02/17/the-exploding-states%E2%80%99-rightsmovement-martial-law/ McDonald ET AL. v. CITY OF CHICAGO, ILLINOIS ET AL., 08-1521 (SUPREME COURT OF THE UNITED STATES June 28, 2010).

States Rights v. Federalism Sovereign. (2010). Retrieved March 26, 2010, from Dictionary.Com: http://dictionary.reference.com/browse/sovereign

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States Stand For Constitutional Sovereignty United We Stand So That Freedom Will Ring True! (2010). Retrieved March 26, 2010, from States Stand For Constitutional Sovereignty United We Stand So That Freedom Will Ring True!: http://statesstand.ning.com/ The 10th Amendment Movement. (2010). Retrieved March 27, 2010, from The Tenth Amendment Center: http://www.tenthamendmentcenter.com/the-10th-amendmentmovement/ The U.S. Constitution and 44 States have Constitutional provisions enumerating the Individual Right to Keep and Bear Arms. (2000-2005). Retrieved March 27, 2010, from Second Amendment Foundation Online: http://www.saf.org/default.asp?p=rkba_protections#With United States of America vs. State of Arizona and Janice K. Brewer, Governor of the State of Arizona, in her Official Capacity, CV 10-1413-PHX-SRB (UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZON July 28, 2010).