05/27/2009 05:12 am ET Updated May 25, 2011

Palin and Perry Skirt Secession

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."