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Limited Government and the Spirit of Liberty

Posted by David C. Innes on Friday, July 24, 2009 11:33:30 AM
In his spirited rejoinder to my "Thoughtful Conservatism" post, Harold alerts us to this very exciting development in American politics. There is a possible growing movement among state governments to reassert their status as sovereign states, and not just administrative units for implementing federal programs and taking care of some small stuff when the feds let them.

Here is an excerpt from "Palin to feds: Alaska is sovereign state: Constitutional rights reasserted in growing resistance to Washington" (WorldNet Daily, July 20, 2009) by Chelsea Schilling:

 

Gov. Sarah Palin has signed a joint resolution declaring Alaska's sovereignty under the Tenth Amendment to the Constitution – and now 36 other states have introduced similar resolutions as part of a growing resistance to the federal government.

Just weeks before she plans to step down from her position as Alaska governor, Palin signed House Joint Resolution 27, sponsored by state Rep. Mike Kelly on July 10, according to a Tenth Amendment Center report. The resolution "claims sovereignty for the state under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States."

Alaska's House passed HJR 27 by a vote of 37-0, and the Senate passed it by a vote of 40-0.

According to the report, the joint resolution does not carry with it the force of law, but supporters say it is a significant move toward getting their message out to other lawmakers, the media and grassroots movements.

Alaska's resolution states: "Be it resolved that the Alaska State Legislature hereby claims sovereignty for the state under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States. Be it further resolved that this resolution serves as Notice and Demand to the federal government to cease and desist, effective immediately, mandates that are beyond the scope of these constitutionally delegated powers."

While seven states – Tennessee, Idaho, North Dakota, South Dakota, Oklahoma, Alaska and Louisiana – have had both houses of their legislatures pass similar decrees, Alaska Gov. Palin and Tennessee Gov. Phil Bredesen are currently the only governors to have signed their states' sovereignty resolutions.

 

The Tenth Amendment states that: "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." It has been largely ignored over the last 200 years, most glaringly in the last fifty to a hundred years when the federal government has been driving its hands into every aspect of American life.

Justice Harry Blackmun announced the irrelevancy of state sovereignty, and thus also of federalism and the Tenth Amendment, in Garcia v. San Antonio Metropolitan Transit Authority (1985). The Court faced the task of deciding the relationship between the scope federal power through its constitutional authority to regulate interstate commerce (the "commerce clause") and the sovereignty of the states.

With this decision, the Court, ignoring the principle of stare decisis (ironically it is the author of Roe v. Wade who writes the opinion), overturns National League of Cities v. Usery (1976) in which the Court held, "The essence of our federal system is that, within the realm of authority left open to them under the Constitution, the States must be equally free to engage in any activity that their citizens choose for the common weal."

Justice Lewis Powell states his dissent quite forcefully:

Whatever effect the Court's decision may have in weakening the application of stare decisis, it is likely to be less important than what the Court has done to the Constitution itself. A unique feature of the United States is the federal system of government guaranteed by the Constitution and implicit in the very name of our country. Despite some genuflecting in the Court's opinion to the concept of federalism, today's decision effectively reduces the Tenth Amendment to meaningless rhetoric when Congress acts pursuant to the Commerce Clause.


In her dissent, Justice Sandra Day O'Connor objects: "If federalism so conceived and so carefully cultivated by the Framers of our Constitution is to remain meaningful, this Court cannot abdicate its constitutional responsibility to oversee the Federal Government's compliance with its duty to respect the legitimate interests of the States." She sounds this alarm: "there is now a real risk that Congress will gradually erase the diffusion of power between State and Nation on which the Framers based their faith in the efficiency and vitality of our Republic."

She concludes:

The problems of federalism in an integrated national economy are capable of more responsible resolution than holding that the States as States retain no status apart from that which Congress chooses to let them retain. The proper resolution, I suggest, lies in weighing state autonomy as a factor in the balance when interpreting the means by which Congress can exercise its authority on the States as States. ...[T]he autonomy of a State is an essential component of federalism. If state autonomy is ignored in assessing the means by which Congress regulates matters affecting commerce, then federalism becomes irrelevant simply because the set of activities remaining beyond the reach of such a commerce power "may well be negligible."
In United States v. Lopez (1995), Chief Justice William Rehnquist, writing for a 5-4 majority, put the breaks on the Court's erasure of this fundamental principle of our system of republican liberty.

To uphold the Government's contentions here, we have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do.

America is a resilient nation. Just when it seems that she is laying down in the graveyard of civilizations, she draws new life from her Christian heritage and founding principles. Remember 1979? It would be just like this nation to rediscover and reassert the principle of limited government just when the pitch dark shadow of Leviathan's triumph seems to be suffocating liberty in the political equivalent of nuclear winter.

Now, can we also get up the courage to impeach Supreme Court justices who regard international law as authoritative in their decision-making?

"It is the common fate of the indolent to see their rights become a prey to the active. The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt."
- John Philpot Curran (1750–1817).
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Sarah Palin vs Beltway Bedwetters

Posted by David C. Innes on Thursday, July 23, 2009 8:44:28 AM
Harold Kildow writes: Allow me to take the part of the Governor over against the oleaginous and unctuous Peggy Noonan. Sarah Palin was thrown into the imperial snakepit before her time, no question about that. But the only people that have any chance to survive that trial by slander, rumor, and humiliation are those who grew up with the boys and girls in that little club and are thus just like them. The savaging she has endured from the best and the brightest is unprecedented, and she has had zero--ZERO--support from the heroic elected Republicans inside the Beltway. In fact, some of the most outrageous attacks have come from the little backstabbing bedwetters inside the McCain campaign itself. As far as supportive pundits or journalists, I think it reduces to Bill Kristol and a couple of others at the Weekly Standard. (See Victor Davis Hanson's thoughtful reflections in "What is Wisdom? Sarah Palin and her Critics" ) With only support from the great unwashed, she has held her ground. And I don't know where this charge that she doesn't know anything comes from--aside from beltway ambush interviews.

While being a mother of five, she dominated multi-party, multi-million dollar negotiations on a giant pipeline deal that had been mired for decades in the corrupt good old boy network and got a deal done. How did that happen? I notice hers is one of the few states in the Union that is in good fiscal condition--a veritable petro state awash in petro dollars, which few politicos would be able to keep their hands off of. She has, and the state of Alaska is positioned to be a leading economic factor when grownups get back in control of the national economy and energy policy.

Oh, and as far as not being thoughtful, how about leading a meaningful reassertion of the Tenth Amendment as part of the conservative resurgence of constitutionalism among state legislatures and governors? This is just the first of many moves she will be making. She may not be destined for the presidency, but she will galvanize the conservative movement in ways Noonan never has or ever will, a factor that ought not to be overlooked when judging Noonan's analysis.

And lets face it--it doesn't matter whose face is associated with conservatism, he or she is portrayed as either stupid or evil or both--e.g., Gingrich, Reagan, Thatcher. Besides, the left is brimming with really smart people who think they know how to run everyone's lives, and where has that ever worked out? Self-organized, bottom up structures such as political self-rule and free markets rest more on practical wisdom than the imperial court craftiness and scientific management principles the left prefer for their scheme to rule every last detail of our lives.

I don't think the left's attempts to hang Palin around our necks as some kind talisman of stupid is going to succeed, despite all of Peggy Noonan's good work. And regarding the Time magazine cover above (I agree with your assessment of what they are attempting), Palin will be around long after Time and Newsweek have died from lack of circulation. George W. Bush, the dumbest president ever, ran circles around them for most of eight years despite their shameless derogation of him. And remember that even Reagan was just an "amiable dunce" to these geniuses. Which leads me to a final thought.

What would Noonan's old boss think of Sarah Palin? I'm guessing he would be her biggest supporter, and would be disappointed at Noonan's slide into lust for the cocktail party circuit at the expense of conservatism. I think Peggy Noonan left the reservation long ago, and I never read her anymore--not since she was caught on an open mic disparaging the rank and file of the party--something Ronaldus Magnus would never have done, or accepted.

-- Harold Kildow (Ph.D. Fordham University) is associate blogger at Principalities and Powers.
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