states rights - ThisIsCommonSense.org

The trouble with the Ninth and Tenth Amendments to the Constitution — the last two items in the Bill of Rights — has not been lack of clarity. The Tenth, at least, is extremely clear: “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.”

The problem has been one of enforcement. How do the States prevent the federal government from overreach? Especially when the federal government acts as if no objection to a federal law could be brooked? Especially when the Supreme Court is, ahem, wrong, or hasn’t yet been approached with a challenge.

Utah has rediscovered an old technique. And revived it. Governor Spencer Cox signed into law the “Utah Constitutional Sovereignty Act”: “The Legislature may, by concurrent resolution, prohibit a government officer from enforcing or assisting in the enforcement of a federal directive within the state if the Legislature determines the federal directive violates the principles of state sovereignty.”

Ultra clear. And by old precedent — the non-enforcement of The Fugitive Slave Act by some northern states — it provides teeth to the Tenth. If the federal government were to enact (just stretch your mind a bit!) something obviously unconstitutional, like, say, a gun confiscation, the state legislature would simply vote to prohibit any state employee, or subsidiary of the state (county, municipality) from working with federal agents. Federal government agencies don’t have enough manpower to enforce all the rules. The feds rely on the states.

CNN quotes a Democrat representative running against Governor Cox suggesting that the use of this technique would be overruled by the Supreme Court using “the Supremacy Clause.”

No. The Supremacy Clause only applies to the federal government regarding specified (“enumerated”) powers.

Regarding matters not explicitly stated in the Constitution, it is the States that are supreme.

Or the People.

This is Common Sense. I’m Paul Jacob.

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“California this week declared its independence from the federal government’s feeble efforts to fight Covid-19 — and perhaps from a bit more.” So begins a hyper-partisan, slightly unhinged Bloomberg opinion piece.

“Governor Gavin Newsom said that he would use the bulk purchasing power of California ‘as a nation-state’ to acquire the hospital supplies that the federal government has failed to provide,” writes one Mr. Francis Wilkinson. “If all goes according to plan, Newsom said, California might even ‘export some of those supplies to states in need.’”

Highlighting two concepts, “nation-state” and “export,” Wilkinson makes much of California’s governor contracting with manufacturers to deliver face masks to his state, arguing that the Trump administration had failed to deliver.

“John C. Calhoun, who used the theory of states’ rights to defend the institution of slavery, is not generally a philosophical lodestar for liberal Democrats such as Newsom,” Wilkinson plunges ahead. He suspects Republicans are hell-bent on subverting democracy come November, making “Calhoun’s theory of nullification … ripe for a comeback on the left coast.”

Calhoun’s “theory” of nullification, as Wilkinson puts it, was called by James Madison “interposition,” and flows directly from the Virginia and Kentucky Resolutions of 1798. It has been used by states for reasons other than defending slavery — most often defending states from unconstitutional taxation.

Indeed, it was used by Northern states to resist federal attempts to reclaim fugitive slaves.*

While it is instructive to watch advocates of huge government flirt with federalist ideas, and the compact theory of the union, one has to wonder how nullification fits with resisting a lack of federal action on face masks.

This is Common Sense. I’m Paul Jacob.

* And free people who merely looked like slaves. For the slavery issue, and more on nullification, see Thomas E. Woods, Jr., Nullification: How to Resist Federal Tyranny in the 21st Century (2010).

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