On April 19, Alaska's Senate passed a resolution that claims "sovereignty for the state under the Tenth Amendment to the Constitution." Now the resolution will head to Governor Sarah Palin's desk, where she will be faced with the decision of whether to join Texas Governor Rick Perry in endorsing an unorthodox interpretation of the Tenth Amendment that some say courts secession. Perry himself made waves after an April 15 Tea Party by brooking the possibility of secession.
"State sovereignty" resolutions have passed at least one legislative chamber in eight states, mostly in the South and the West. None has yet been signed by a governor. Oklahoma's Gov. Brad Henry (D) vetoed one on Friday.
Although these sovereignty resolutions are largely symbolic, they have been enthusiastically embraced by right-wing media personalities like Glenn Beck and Lou Dobbs. Republican Rep. Ron Paul has also backed them.
Gov. Perry may hope to win over conservative audiences in what is expected to be a bruising primary against U.S. Senator Kay Bailey Hutchison. A Research 2000/Daily Kos poll recently found that Texas Republicans are evenly split, 48-48, on whether the Lone Star state should stay in the Union.
More disturbingly, the Tenth Amendment resolutions have also been promoted by the Council of Conservative Citizens, the racist successor organization to the White Citizens' Councils of the 1950s. One section of the Council's website tracks the progress of the resolutions across states. The Tenth Amendment was also a lodestar for the militia movements of the 1990s.
Perry may simply be trying to throw red meat to his base -- but critics say he's allied himself with the "fringe" right. Writer James Moore said Perry's words echoed the theories of a convicted violent Texas separatist leader.
The Tenth Amendment, one of the least well known of the Bill of Rights, reads, "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."
A similar provision in the Articles of Confederacy had included the word "expressly" before delegated, which greatly limited the power of the central government. In the debate over the Constitution, the word was pointedly cut out.
"They took the 'expressly' out, and that was clearly understood to leave room for implied powers," says Larry Kramer, Dean of Stanford Law School. It is under the heading of implied powers that the federal government has greatly expanded its influence since the Civil War, and courts have generally ruled that the feds do indeed have many powers beyond those expressly listed in the Constitution.
"The Tenth Amendment does no work," Kramer says. It "doesn't do anything to affirmatively impose greater limits on the federal government," he says, but serves simply "as a reminder, to provide some security that there's supposed to be a limit to Congressional power."
After taking a look at some of the state sovereignty resolutions, Kramer said that the text of most of them seemed to be making the "perfectly unexceptionable" argument that federal power had expanded too far.
Yet the distinction between this position, and the belief that states can "nullify" federal laws or even secede, seems unclear to many of the resolutions' backers, as Perry's comments about secession demonstrated.
One top online watering hole for members of the loose state sovereignty movement is the Tenth Amendment Center website, run by Michael Boldin. His site includes a section tagged "secession," but Boldin, who runs the site in his spare time, says he personally opposes such a drastic step.
He says it's "hard to really tell" how big the movement is, "because the idea behind the Tenth Amendment is decentralization."
The recent round of state sovereignty resolutions were all approved by legislative chambers, with one exception, in red states after Obama's election, but Boldin says "if it's just a bunch of partisan posturing it'll lead to nothing."
Boldin is a libertarian. He sees a nonpartisan case for the Tenth Amendment resolutions. In fact, for him the Tenth Amendment is a guarantee of a radically decentralized political system. He doesn't agree with the supporters of the sovereignty resolutions who hope simply to increase states' power at the expense of the federal government.
"It's not states that have rights, he says, "it's individuals, people that have rights."
Edward Lazarus, a Los Angeles lawyer and former federal prosecutor, has drawn a comparison between the state sovereignty resolutions and the Nullification Crisis of 1832-33, when South Carolina claimed the right to "nullify" unconstitutional federal law. Historians have cited the Nullification Crisis as a prelude to the Civil War.
Lazarus notes that under the Rehnquist court the notion that the federal government had overstepped its bounds in violation of the Tenth Amendment gained some ground. But, he says, "there's a far distance between where even this Supreme Court stands on 10th Amendment jurisprudence, and the idea that states would have the right to nullify federal law, much less secede from the union."
In South Carolina, home of the Confederacy, some neo-secessionist groups are interpreting the state sovereignty resolutions as saying just that. One posting on a racist website noted that South Carolina Council of Conservative Citizens members showed up to support their state's sovereignty resolution at a hearing.
The posting also noted that the resolution was opposed in the state Senate Judiciary Committee by "4 blacks, 1 Jew, and 1 white who represents a 70% black district."
The resolution passed the committee. Supporters in South Carolina say their effort has been mischaracterized as a fringe movement.
"The mainstream media would portray some of us as rednecks, whether we're from Pennsylvania, Oregon, or South Carolina," South Carolina State Rep. Michael Pitts (R-Laurens) told the Christian Science Monitor. "But this is a wake-up call. And if Washington doesn't heed that wake-up call, revolution is on the horizon."
Arkansas State Rep. Lindsley Smith (D-Fayetteville), says she is a "huge supporter" of the Tenth Amendment. But the arguments emailed by some fringe supporters there reminded her of "the siren call by 50s 'states rights' supporters related to the [Little Rock] Central High School crisis -- an event that fueled so-called states rights advocates during the Civil Rights Movement of the 50s and 60s."
She also believes the online rhetoric of some members of the state sovereignty "movement" is marked by "pointed personal attacks on the Obama Administration."
The Arkansas resolution failed.
It's not just in the states of the former Confederacy where extremists have latched on to the Tenth Amendment. For the militia groups of the 1990s, writes author D.J. Mulloy, their extreme vision of the Tenth Amendment was "almost as important" as the Second.
One militia member wrote an article in 1995 stating that the Tenth Amendment was "America's Last Chance to Avoid a Rebellion."
In Montana, where a 10th Amendment resolution died on a party-line vote, one Democratic State Representative said on the floor that "Buried in this resolution is the same confrontational and ideals that the Freemen and Timothy McVeigh stood for." (Read the Great Falls Tribune article.)
The Republican sponsor said during the resolution's discussion that it was not an extreme document. Instead, it was "about sovereignty. It is about the Constitution and the Declaration of Independence preceding it. And it is about the rule of law. Montana law."
Follow Matt Sledge on Twitter: www.twitter.com/mgsledge
Doug Kendall: Taking the Tenth Amendment Seriously
Perry and Palin really don't understand what they're talking about *at all*, do they? I wouldn't trust them to out up a garden shed.
In our system, "the people" can be represented at the federal level as well as at the local level. There are all kinds of opportunities to participate in the political process without anybody talking about secession or flirting with it in any way whatsoever.
I they want to suceed let them, they'll be back when the next hurrican comes along.
Oh wait they would take those federal dollars
Imagine if TX had seceded, but now needs the swine flu vaccine that Perry hasn't been shy to ask for. Would the remaining 49 states care?
PLEASE, Texans, don't vote for this two-faced pol in 2010. He's blatantly self-serving...at best.
Remember that it was not that long ago that the good folks over at Daily Kos were in favor of secession by a majority of 61%: http://www.dailykos.com/story/2005/6/3/17568/04317
And HuffPo had a blog & a news story on it, but it didn't seem to upset the readers here?
What about The Washington Post article: http://www.washingtonpost.com/wp-dyn/content/article/2007/03/30/AR2007033002076.html
And then you've got this: http://legalinsurrection.blogspot.com/2009/04/when-bush-was-president-secession-talk.html
Seriously though, I think one of the big functional differences between the VT secession movement is the VT's governor never endorsed it, nor did any prominent members of the state legislature. It's a pretty fringey movement (I say that with the greatest affection). Also, when a group with ties to white supremacy expressed support for the VT secession movement, they acted quickly to distance themselves from that group. Another difference is the strong focus in Vermont on protecting local organic agriculture, as well as local alternative energy sources. It's similar in that it has that same tension between secession and decentralized government, tempered by the recognition that VT is very small and somewhat isolated, and depends on the free flow of trade with other states to sustain its economy.
Now, I haven't heard much from them lately, but I doubt their aims have changed very much since Obama's election.
It is too bad these people can't think beyond the latest far-right craziness. REAL leaders do not act like this. REAL leaders help their constituants understand the issues. Disagreement with policy is perfectly acceptable. That is how change is instituted. But these two (and their buddies in the conservative media) are anything but REAL leaders.
How sad for the states they represent.
Right.
This country is so bad you must secede from it, but please elect you to be president over it otherwise?
The potential damage is limitless, it's mind-boggling....
Really makes me want to sign Obama to a long term contract.
Breakwind, proud New Yorker.
I'll bet New York The City could secede from New York The State, and guess which would be the richer country?
One important piece that many who actually support the idea of limiting the government under the 10th Amendment is the principle of implied powers. There is no doubt, whatsoever, that the founders left room for the government to have more powers than just those 30 specific things listed in the Constitution.
When they removed the word "expressly" from the 10th amendment before ratifying it, they made it quite clear that it was done to prevent the federal government from being hamstrung. They allowed the government to do what was absolutely necessary to carry out those powers enumerated in the constitution.
For example - they have the power to build post offices. But there's nothing listed about buying the land and labor to build them. That's a necessary, implied power that's clearly authorized.
One thing I'd like to add is that I see the left, not the right, as being in the lead on the 10th amendment in many ways. Where I live in CA, we've seen the state out in the front on things like medical marijuana. And this last week's emissions ruling is a classic example of just how following the 10th should work.
Another issue is the ability of individual states to experiment with laws on their own. The expansion of concealed-carry laws in the past 25 years is due to this feature. From the right rather than the left.
I don't think this important issue will go away soon - probably wind up in the Supreme Court.
The attempt at discrediting discussion of 10th amendment issues by equating with secession probably won't work and discredits those who use this tactic.
who're the "freaks" now?
If State's Rights is the best way to go about that in a particular case, then they're all about State's Rights.
If restricting State's Rights works, then they're just fine with that as well.
Picture her as the Red Queen, complete with her Mad Tea Party (April 15th in Anchorage) and her Humpty Dumpty, Palin's pick for AG just rejected by the Alaska state legislature.
Sad, because people like them can really ruin something that's worth discussing.