Tuesday, June 07, 2016

The Constitution provides states with a high degree of sovereignty

Commentary by James Shott

When the founders of our young nation realized that the original governing document, the Articles of Confederation, was insufficient, the task of creating a better one began. Ultimately, during the process of creating and ratifying the United States Constitution to replace the Articles strong sentiment existed for specific rights to be guaranteed to Americans, and the Bill of Rights was created, consisting of the first 10 amendments to the Constitution.

As time passed the strength of some of those first 10 amendments has been weakened, and some are under constant attack. As our once-limited national government has grown, the rights and freedoms guaranteed by the Constitution and the Bill of Rights have diminished.

The Bill of Rights guarantees such things as freedom of speech and religion, the keeping and bearing of arms, freedom from unreasonable searches and seizures, and other protections from a government set on tyranny.

The several states, which represented the interests and will of their citizens, created the national government, and the Tenth Amendment emphasized that the states had protection from the acquisition of powers by the national government outside the limits set forth in the Constitution.

During the process of replacing the Articles of Confederation with the Constitution, a series of essays known as The Federalist Papers stressed that under the Constitution’s governmental structure, the principle of popular sovereignty would continue, with Constitutional protections against the national government trampling on the rights reserved for the states. This was known as “federalism.” The national government has those powers assigned to it; the states or the people have those powers not assigned to the national government, nor prohibited by the Constitution.

The Ninth Amendment strengthens the Tenth, but more than 230 years later, who can argue that the Tenth Amendment's proscription against a power grab by the federal government has actually been respected?

Arguably, the Environmental Protection Agency is the greatest offender of 10th Amendment protections, as it writes regulations and rules with the force of law that have not been made into law by the Congress.

Or maybe it is the Patient Protection and Affordable Care Act – Obamacare – that is a law made by Congress, but shoves Uncle Sam over the edge of the big government cliff. Imagine Washington, Jefferson, Madison and the rest of the Founders agreeing that the national government was allowed someday to impose a healthcare system on the people of the several states, even if it worked as advertised.

The idea that the federal government has the authority to change the operations of hundreds or thousands of individual insurers and healthcare providers in 50 different states, each serving its own separate customer base, into a single system controlled by Washington is as anti-Constitution as it gets.

Other areas of Tenth Amendment abuse are same-sex marriage and abortion, both of which originally were state issues, until the federal government found some way to finagle a national interest in these issues.

Until the Roe v Wade case of 1973, abortion had been a state issue, but the Supreme Court ruled that bans on abortion were unconstitutional on a “right to privacy” basis discovered in the due process clause of the Fourteenth Amendment. And the federal government was never involved in marriage issues until 1996 when the Defense of Marriage Act was passed.

The Constitution also protected state sovereignty by the way Congress was organized. The House of Representatives, frequently referred to as “the people’s house,” consisted of Representatives directly elected by the citizens of the Congressional Districts. Members of the Senate, on the other hand, were to be elected by the state legislatures, and therefore senators’ loyalty was to the government of the state more than to its citizens.

This protection vanished, however, when the 17th Amendment was ratified in 1913, and now the citizens of the states also elect Senators, in addition to the Representatives. Members of the Senate no longer have any special reason to protect the interests of the government of the state they represent, and that shifts the governing balance between the states and the federal government toward the federal government.

The result often is that federal mandates, about which the states themselves have nothing to say, not only can and do intrude on state sovereignty, but force states to pay for their implementation, as well.

Some people think these changes are just fine, such as those who have bought into the scare tactics of the climate change catastrophe gang, those who support abortion and same-sex marriage, and those who generally like big government and have never stopped to think how miserable they may be in the future if this big-government mania isn’t stopped.

There is some good news on this issue: States are fighting back against federal over-reach. Twenty-four states filed a lawsuit asking a federal court to strike down the Environmental Protection Agency’s new source performance standards that effectively prohibit the construction of new, coal-fired power plants. And 12 states are fighting the Obama administration’s LGBT rights mandates.

If the courts do not support restoration of state sovereignty in these and other issues, the states will have no other choice but to refuse to follow intrusive federal measures.

Cross-posted from Observations

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