States’ Rights Strengthened by Recent Supreme Court Decisions
Former federal judge Andrew Napolitano wrote in his book, The Constitution in Exile, that from 1937 to 1995 the federal Supreme Court hadn’t found anything unconstitutional proposed by their federal branch brethren—amazing.
Napolitano’s observation contrasts two recent opinions that strengthen federal views on State independence, and local rights.
The “free and independent” States, as it is written in the Declaration of Independence, are each melting pots for ideas, and Freedom in the 50 States: 2013 explains in a 1 minute, 43 second video many of the benefits that freedom of choice on a local level ensures. As Thomas Jefferson stated on interpretation:
Let us indeed turn the dial back, but not back in time to the ratifying conventions, where state representatives clearly explained to citizens (as they still do today), how “the constitution was supposed to be a document that was empowering; so that, if it was not listed there as a power of Congress, they didn’t have it.”
Rather than turning the dial that far back, look to almost a century later, where public understanding of the construction of our republic was still strong—stronger than today, for sure.
Newspaper clippings from the winter before the civil war reflect this.
There needs to be no bloodshed… unless it is forced upon the national authority
On November 21, 1860, before Lincoln announced “there needs to be no bloodshed… unless it is forced upon the national authority… to collect the duties” states hadn’t agree to, here's how Northerners saw their Constitution:
States such as South Carolina thought certain taxes (and imposts, Lincoln reminds) were not constitutional, and so seceded that December. Six other states followed in the months to come.
On December 17, 1860, the New York Daily Tribune editorialized:
The Kenosha, Wisconsin, Democrat editorialized on January 11, 1861, that "The founders of our government were constant secessionists. They not only claimed the right for themselves, but conceded it to others. They were not only secessionists in theory, but in practice."
When Lincoln said we were one nation, it was not true: there never was one nation. But, one couldn’t be blamed in thinking so, after Chief Justice Marshall’s “claim” regarding Marbury vs. Madison, has been repeated over and over by centralists:
This was untrue then, as it is today.
The United States represents a federal union, a confederation of free and independent states. It is this recent resurgence of honest principles that is being mirrored in recent Supreme Court opinions.
DOMA - Federal Defense of Marriage
Starting first with the most recent, the Defense of Marriage Act, no matter what your personal opinion is, the federal government shouldn’t have one.
Nothing in Article 1, Section 8, gives this power over, from the states.
Local decisions should remain local, and citizens who prefer state government involvement in relationships can vote that way; in the state of New Mexico, there are no rules… Gaaasp!
ACA – Centralized Federal Healthcare
Similarly, more than half of all States have resisted centralized healthcare, with one Governor saying “he will not be party to socializing health care and bankrupting my state in direct contradiction to our Constitution and our founding principles of limited government.”
The surprising part is that the step-back seen in the federal agenda was largely a result of sheer quantity of states taking the option. As Utah Senator Wayne Niederhauser said recently: “[If] we want to be a sovereign, we have to act like one.”
With the ACA ruling, the federal justices recognized states’ rights (page 4, section 5, “decline to comply”), by saying federal withholding of Medicare funding to states couldn’t be a punishment for opting out. As we wrote June 28, 2012:
This opinion eliminates the teeth in the law from the perspective of the federal government, the threat of withholding Medicare funds—blackmail.
One example in practice today of this type of blackmail is where the national government withholds highway funds to coerce policy complicity.
The justices made an explicit statement on this issue—even in the case of a state not implementing the law—nullification.
Nullification of what a state and its citizens see as overreach by federal planners not only was permitted by federal justices on both accounts, but functionally, ignoring unconstitutional decree obviously remains the “rightful remedy” employed today.
States are “duty bound to resist,” said Madison and Jefferson in 1798; the two subjects above are not the only ones on which we haven’t disappointed Madison and Jefferson.
In closing, it was on the eve of the Civil War that the Providence, Rhode Island, Evening Press warned Lincoln:
The Evening Press then reminded its readers that in the American Revolution the colonists rejected "the Divine right of Kings" to do whatever they wanted to their subjects.
So which is it? Are American citizens still masters, rather than the servants, of government?
The people are master, was the answer clearly on display throughout the Northern Editorials on Secession “out of reverence for the natural law principle of government by consent of the governed."
Will we remain the land of the free by delegation of limited, explicit powers to a central government, and then jealously ensuring via the State's right to nullify, that the central government exercises only what is asked of it on behalf of the citizens of the “free and independent” States.
Chief Justice John Marshall, then Lincoln, worked to reverse States’ rights; much later Adolph Hitler enshrined a top-down denial of sovereign people or their local States:
“National socialism, as a matter of principle, must lay claim to the right to force its principles on the whole German nation, without consideration of previous federated State boundaries” -- Mein Kampf
When Lincoln said we were one nation, it was not true: there never was one nation. But, one couldn’t be blamed in thinking so, after Chief Justice Marshall’s “claim” regarding Marbury vs. Madison, has been repeated over and over