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The Return of “Divided Sovereignty”

This entry is part 5 of 5 in the series Federalism, Democracy And Presidential Elections

constitutionThe enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. –The Ninth 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. -The Tenth Amendment to the US Constitution

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. -James Madison in Federalist 51

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.- The Virginia Resolution of 1798

At least 20 states are currently crafting or holding hearings on legislative resolutions that re-asserts the original jurisdictions and powers guaranteed to them in the 9th and, especially, 10th amendments (quote above).

And now that list has expanded to include Ohio. Just this week (Wednesday March 18, 2009) House Concurrent Resolution (HCR) 11 was introduced into the Ohio House. Virtually all of the resolutions in the various states cite what has become in the last century or so the largely forgotten 10th amendment to the US Constitution. All of the various state resolutions have slightly different language and motivation behind them, according to the needs of the individual state.

In Oklahoma, for instance, the underlying motivation is the attempt by the federal government to force Oklahoma to allow a NAFTA superhighway (actually a HUGE multi-lane car, truck, rail, communication corridor under international control; just imagine being pulled over for going 66 in a 65 zone by a law enforcer who answers not to some local elected body but an unelected international board and may not even be an American citizen) that allows foreign rail and trucking, beginning in Central America and terminating at a hub in Canada, onto US territory without benefit of Customs inspection until they reach the main terminal in Kansas City (no terror threat to see here; move along), to cut a huge swath through the center of the state. Of course, the federal government has been busy denying that any such corridor actually exists.

Unfortunately, Texas Department of Transportation let the cat out of the bag a couple of months ago by holding a press conference to announce that Texas’ portion of the project that never existed had been canceled by popular demand of Texas residents. Enterprising Texans had gotten control of local and regional zoning and planning boards and simply refused to allow the corridor permission to begin construction within the confines of their jurisdiction. This was forcing an exceptionally large detour in the highway (3 counties or so). Further information can be obtained by purchasing DVD’s of last July’s Freedom 21 Conference in Dallas TX, available here. The details of this was one of the best presentations at Freedom 21 last year. This year’s looks to be at least as good.

In Ohio the fulcrum is unfunded federal mandates. This is a brilliant move on the part of the drafters. The drafters also wisely cite Article IV, sec. 4 and the 9th Amendment of the US constitution. Article IV, sec. 4 guarantees each state a separate republican form of government, meaning that each state has the right of self-determination through the action of its duly elected representation. The 9th Amendment states that men have many more inherent rights than are mentioned in the bill of rights and that the fact that they are not mentioned does not mean they may be usurped by an omnipotent federal leviathan but are to be protected as strenuously as the others which have been mentioned. This has become an extremely important consideration but has been virtually ignored since the War between the States.

“OK,” you might be saying, “but why is this such an important consideration?” The answer lies in the Virginia Resolution, quoted above. Passed immediately following the passage of the Alien and Sedition acts, federal laws which openly violated the 1st and 5th Amendment protections of the right of free speech and press and the right to due process of law. Virginia and Kentucky each passed resolutions declaring their sovereignty under the 9th and 10th Amendment and furthermore declared their intention to interpose on behalf of citizens of their own states whose rights were being trampled by means of federal usurpation.

It is interesting to note that the word interposition has virtually disappeared from modern legal dictionaries even though, obviously, it was a well-known legal concept in the early part of the American Republic. The War between the States nearly killed the concept.Interposition takes place when the lesser (state) authority places itself between the greater (federal) authority (exercising its authority unlawfully) and the citizen subject to both authorities.  Thus, the Article IV guarantee of a republican form of government for each state.

It must be understood that the Constitution is a negative law document. In contrast, the old Soviet Constitution was a positive law document; the Soviet government assumed all authority and the peoples rights were specifically outlined within the document. The US Constitution, on the other hand, assumes that all authority rests in the people (there is an important distinction that the Christian must make here, discussion of which we are going to forego right now. Suffice it to say that the Christian knows that ALL authority in heaven and earth has been given to Jesus Christ. Individuals have authority to establish government insofar as Christ delegates it to them) and that the government’s power is strictly restricted to those specific powers that the people willingly delegate to it. All other authority is forbidden to government and reserved to the individual. Hence, the enormity and complexity of positive law documents and the simplicity and, often, eloquence of negative law documents. It’s much simpler and easier to say “you have all rights except these” versus “here is a specific list of your rights.”

The purpose of government in the limited authority model is the protection of the rights of the individual both from other individuals and from government abuse. In this light, the lesser authority has not just the right to interpose in opposition but the duty to do so since the whole of his authority was given to protect the rights of the citizen.  So what does this have to do with unfunded mandates? Because of the loss of the original balance precipitated by the growth of federal power at the expense of state authority and individual liberty in violation of the 10th Amendment, the federal authority has assumed the power to dictate to the states that they must administer certain programs at their own expense.

In essence the federal authority is shirking its responsibilities to pay for the state administered federal programs that they have forced on the states, usually over the objection of the citizens, mostly because of political considerations. It’s a lot easier to let state authorities take the heat over unpopular tax increases that must come with unfunded mandates than to increase federal taxes to cover their cost.

The former insures that political wrangling at the state level over how to make it look like the other political party was “really at fault” for mandatory tax increases from federal mandates will both disgust and eventually numb the citizens to the real problem which is with their federal representation. The latter option would quickly result in a change in federal representation and a quick end to the programs that are increasingly consuming the citizens’ assets against their wills. In this light it is easy to see why the unfunded mandate is the method of choice for the federal politician.

“But aren’t you talking about nullification with resolutions like these?” you might be asking. Quite simply the answer is no. Interposition is not nullification. Nullification is a complex political activity. It requires the calling of a special state convention independent of the state legislature, the selection of delegates to represent the people of the state and debate of the issue followed by a vote of those delegates based on whatever criteria that convention develops on whether or not to declare the federal legislation null and void within the confines of that particular state.  Interposition is an act of a state legislative body saying simply “you can’t do that here because you don’t have the constitutional authority.”

Some might be saying “you just want to use this as an excuse to start a secession movement, don’t you?” The answer is obviously no. Interposition and nullification are both remedies: one legislative, the other political, for grievances against federal usurpation of state authority and individual liberty. They are specifically designed to eliminate the possibility of  secession, not make it more likely. No one who thinks is thinking of secession.

What sovereignty resolutions like HCR 11 are about is the re-balancing of the state-federal government equation. It is a re-distribution of authority, already constitutionally restricted to the states and local bodies, back to its intended delegates.

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Posted in Commentary, Public Policy Principles News, Public Policy Radar, The Vote.