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

Commentary by James Shott

For four years, an organic farmer in Indiana was harassed when he supplied raw milk to the local organic co-ops. What prompted this action was what the Goshen News reported in 2010 as an outbreak of campylobacter bacterial infections “that might be traceable to the Forest Grove Dairy.”

Obviously, if bad milk makes people sick, health departments need to be involved, however, farm owner David Hochstetler told the paper at the time that health departments had not visited the farm to investigate, and he was never found to have sold bad milk.

Despite never having his product tied to the outbreak, Hochstetler’s farm was subjected to frequent inspections and harassment by two federal agencies, the Food and Drug Administration and the Department of Justice, actions believed to be aimed at closing down the dairy farm. And then Elkhart County Sheriff David Rogers responded to Hochstetler’s complaint, realized there was no justification for such harassment, and stepped in and blocked this over-reach from the federal government.

Rogers wrote to the DOJ telling them he would take action, including “removal or arrest” of federal agents, if the inspectors came without a signed warrant specifying probable cause and giving a clear reason justifying their invasive searches.

Rogers explained in the local newspaper, “My research concluded that no one was getting sick from this distribution of this raw milk. It appeared to be harassment by the FDA and the DOJ, and making unconstitutional searches, in my opinion. The farmer told me that he no longer wished to cooperate with the inspections of his property.”

You may be wondering why federal agencies were involved in what clearly was a local/state issue. This is not unusual.

The Daily Caller reported a year ago on the Environmental Protection Agency’s (EPA) Waters of the United States rule that critics say “would allow the agency to regulate waterways previously not under federal jurisdiction, including puddles, ditches and isolated wetlands.”

The EPA may be the agency that has done the most damage to the U.S. economy and business operations with its over-zealous and intrusive mandates, concerning such things as incandescent light bulbs, toilets that use “too much” water, limiting wood burning and charcoal use, and now extending its tentacles to regulating temporary water collections on private property.

Many states are growing tired of these overreaches. A bill introduced in the Indiana State Legislature reflects that state’s frustration. The bill nullifies all of the EPA’s regulations and places all environmental protection authority with the state’s Department of Environmental Management. And 24 states, including Indiana, have filed a lawsuit in federal court to strike down the new source performance standards affecting new coal burning power plants.

The EPA’s costly excesses and other excessive behaviors by administrative agencies trample all over the plain language the Founders deliberately wrote into the U.S. Constitution through the Tenth Amendment, which states: “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.”

However, it is the wont of federal bureaucracies to grow like weeds, often with the tacit approval of our elected representatives in Congress, and not infrequently at their behest. Bureaucrats isolate themselves into protected enclaves extending their reach beyond that which is appropriate. They often do serious harm to their bosses, the American people, usually without accountability for their misdeeds.

Having escaped the heavy hand of King George only a few years before, the Framers of the U.S. Constitution sought to create a document establishing a new government for the United States that could not evolve to be as oppressive as Mother England had been; a government “of the people, by the people and for the people.” It was no accident that the phrase “the people” is mentioned five times in the Bill of Rights.

The Legal Information Institute of the Cornell University Law School explains: “The U.S. Constitution grants the federal government with power over issues of national concern, while the state governments, generally, have jurisdiction over issues of domestic concern. While the federal government can enact laws governing the entire country, its powers are enumerated, or limited; it only has the specific powers allotted to it in the Constitution.”

Some constitutional scholars and experts have described the Tenth Amendment as the Bill of Rights’ “catch-all” amendment, a strong reminder to federal lawmakers and officials that the federal government has strict limits, and everything outside those limits is under the control of the states.

The checks and balances of our governmental system give Congress the duty and the authority to oppose excessive behavior by the executive branch. The federal budget is an excellent tool for this purpose. It is shameful that these elected representatives have so often and for so long failed to protect their own Constitutional authority and, more importantly, the best interests of the people they were elected and sworn to represent.

The failure of Congress to oppose over-zealous federal agencies means the states have no other choice but to strongly oppose the unconstitutional federal intrusions, either through legal action, or by actions like that of Sheriff Rogers.

Cross-posted from Observations.

States Distancing Themselves From The Federal Government

States Distancing Themselves From The Federal Government
Over 40 States Declare State Sovereignty
A Commentary by J. D. Longstreet
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NINTH AMENDMENT to the US Constitution: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.TENTH AMENDMENT to the US 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.

As I have observed over the past few months the “State Sovereignty Movement” continues to sweep the nation with well over three-quarters of the fifty states taking action, through their respective state legislatures, re-establishing their “sovereignty”.

It is being reported that there are over 40 states with state sovereignty declarations as of this writing. If true, that is heartening. There is no doubt the states have been relegated to second-class citizenship in the US. That is just WRONG and must be corrected!

We found reports on the Internet stating that THERE ARE 12 NEW STATE SOVEREIGNTY DECLARATIONS IN PROGRESS, RIGHT NOW!! THEY INCLUDE ALABAMA. NEBRASKA, Rhode Island, WYOMING, WASHINGTON, INDIANA, KENTUCKY, GEORGIA, KANSAS, MISSOURI, MISSISSIPPI, AND MARYLAND!

WYOMING is the newest constitutionally sovereign state. The bill was signed into law on March 8th, 2010. Utah did the same on the 25th of February 2010. The debate continues in my home state of South Carolina, but my guess is it will pass the state legislature and be signed into law by the “Sandlappers” very soon now.

Here in North Carolina, House Bill H849 “supporting the state’s right to claim sovereignty over certain powers under the Tenth Amendment to the Constitution of the United States” has been filed. Here’s the full text:

Whereas, the Tenth Amendment to the Constitution of the United States reads as follows: “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;” and

Whereas, the Tenth Amendment defines the total scope of federal power as being that specifically granted by the Constitution of the United States and no more; and

Whereas, the scope of power defined by the Tenth Amendment means that the federal government was created by the states specifically to be an agent of the states; and

Whereas, today, in 2009, the states are demonstrably treated as agents of the federal government; and

Whereas, many federal mandates are directly in violation of the Tenth Amendment to the Constitution of the United States; and

Whereas, Section 4 of Article IV of the Constitution of the United States says, “The United States shall guarantee to every state in this union a republican form of government,” and the Ninth Amendment states that “The enumeration in the constitution of certain rights, shall not be construed to deny or disparage others retained by the people;” and

Whereas, the United States Supreme Court ruled in New York v. United States, 112 S. Ct. 2408 (1992), that Congress may not simply commandeer the legislative and regulatory processes of the states; and

Whereas, a number of proposals from previous administrations and some now pending from the present administration and from Congress may further violate the Constitution of the United States; Now, therefore,

Be it resolved by the House of Representatives:

SECTION 1. The North Carolina House of Representatives supports the State’s right to claim sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government or reserved to the people by the Constitution of the United States.

SECTION 2. The North Carolina House of Representatives urges the federal government, as the agent of the State, to cease and desist, effective immediately, mandates that are beyond the scope of any constitutionally delegated powers.

SECTION 3. The North Carolina House of Representatives further urges that compulsory federal legislation which directs states to comply under threat of civil or criminal penalties or sanctions or requires states to pass legislation or lose federal funding be prohibited or repealed.

SECTION 4. The Principal Clerk shall transmit a certified copy of this resolution to the President of the United States, the President of the United States Senate, the Speaker of the United States House of Representatives, and each member of the North Carolina Congressional Delegation.

SECTION 5. This resolution is effective upon adoption.

Read more on North Carolina’s efforts to re-establish its sovereignty HERE.

I took a look in my crystal ball and, for the life of me; I could see no indication of the effect the sovereignty movement will have on future relations between the states and their “agent”… the federal government. Only time will tell. However, I must tell you, it does this old southern boy’s heart good to see “State’s Rights” again brought to the fore in the United States.

James Madison, The Founder we refer to as “The Father of the Constitution,” wrote the following: “To preserve the Republic, it is in the hands of the people. We have staked the whole future of American civilization not upon the power of government, far from it. We have staked the future of all of our political institutions upon the capacity of mankind for self-government; upon the capacity of each and all of us to govern ourselves, to control ourselves, to sustain ourselves according to the Ten Commandments"

As with all Americans we “Southerners” get a lot of things wrong. But we have been right on the issue of “State’s Rights” all along. See, southerners had a bit more than just a signature invested in the creation of the Constitution, itself. There was never any doubt, in our minds, about who “the greater” and who “the lesser” was/is in this association of states and federal government. I must tell you, I am more than a little pleased to find the names of several northern and western states, and even northeastern states, included in the list of the names of the states involved in the State Sovereignty Movement.

Washington would do well to take notice, serious notice, of this movement. The Congress and the President may have forgotten, but it is “the boss” filing this complaint. It is very easy to sit in Washington and spend North Carolina’s money, or the money of the folks from Texas or Oklahoma. But, believe me when I tell you that we have been paying attention and we do not like having our state’s treasuries looted by a heavy-handed federal government.

The current Congress would also do well to read up on the “Ordinance of Nullification” passed by my home state of South Carolina in 1828. You can read it for yourself HERE.

Suffice it to say State Sovereignty is NOT a NEW issue in this country. It appears we will have to visit it -- yet again.

J. D. Longstreet