January 19, 2011
By Bruce Walker
The Republican House of Representative read the Constitution, including all its amendments, aloud. I wonder how many listeners grasped the salient virtue of our Constitution: the document is maddeningly vague about personal liberty. Article I, Section 9 provides a few prohibitions: Congress cannot pass certain types of laws like a Bill of Attainder or an ex post facto law, both of which circumvent the natural process of justice by law and trial. Article IV provides that the privileges and immunities of citizens of one state apply to other states as well. That is about all.
The first ten amendments, our Bill of Rights, are conspicuous for what they do not prohibit. Nothing in the Bill of Rights, for example, prohibits states from establishing an official religion or limiting freedom of speech. Long after the Fourteenth Amendment was passed, the Supreme Court adopted the “Incorporation Doctrine,” which applied the federal Bill of Rights to states, but that was unnecessary to protect liberty unless Americans had come to view the United States Constitution, rather than the constitutions of their own states, as the guarantors of liberty.
What, then, is the Constitution? It is an effort to have a federal government while limiting the power of that government so that states can remain truly sovereign. States, not the federal government, gave us our liberties. Federal power is fractured into a bicameral legislature, a presidency, and a federal court system. The powers of the federal government are spelled out in plain language, and the Tenth Amendment declares that powers not given to the federal government in the Constitution are kept by the states. The first amendment adopted after the Bill of Rights, the Eleventh Amendment, was specifically to limit the power of federal courts over state governments.
Why were Americans so concerned with states’ rights? States made the American Republic a marketplace of governments. If states are preeminent in the governance of the nation, then when one state slides towards tyranny, people can leave and move to another state. When groups want to find a place to live in peace, like Mormons in Utah or Jews in New York, strong states ensure that they can do so.
It is a grim fact of history that strong central governments have gone hand in hand with horror. Nazis, very quickly, essentially ended the system of strong state governments in Germany. The Soviet Union was also ruled with an iron hand from Moscow, and the destruction of whole peoples followed its central policies. The closer people are to the elected officials governing them, the more freedom flourishes. The more remote the government, the less citizens feel like equals and the more they seem like cattle. That is why the Founding Fathers considered states’ rights as absolutely indispensable to the purposes of our nation.
The Founders also grasped that simple declarations of state sovereignty were empty without political mechanisms to ensure that states remained strong. They provided that state legislatures would choose United States senators, that state legislatures would choose how presidential electors were picked, and that state legislatures adopted proposed amendments to the Constitution.
United States senators are chosen today by the “people,” which means they are unaccountable to state governments. Presidential electors are also chosen by the “people,” although this is merely by state law. In practice, the Constitution is no longer amended by the provisions of Article V. The Supreme Court, instead, amends the Constitution through its auguries of the entrails of the Constitution revealed in precedents.
The disintegration of states is the gravest problem we face. The omnipresent federal government means that Americans can no longer run from tyranny by leaving one state and moving to another. The transfer of power from state government to some nebulous “people” means that we have democracy, a very unhappy form of government.
What can be done? Well, states can propose constitutional amendments without going through Congress. Two-thirds of state legislatures may call a constitutional convention. Although many conservatives fear this approach to amendment, if the terms of the resolution provided that members of the various legislatures themselves were the members of any constitutional convention and limited the action of that convention to approval or disapproval of a single amendment, then the chances of true restoration of states’ rights would be solid.
What short and clear amendment would restore states’ rights? Perhaps something like this: “When a majority of the legislatures of the several states resolve that any officer of Executive or Judiciary of the United States has acted in denigration of the sovereign rights of the several states, then said officer shall be removed from office. When the legislature of any state determines that a member of Congress from that state has voted in denigration of the sovereign rights of the several states, then that member shall be removed and an election held as soon as practicable to replace that member.” This would place the power of interpreting the constitutional prerogatives of the states back where it belongs: with the sovereign states themselves. No member of Congress, no federal judge, no member of the executive branch, including even the president, could ignore the rights of the states.
Every politician wants more power, and this would give state legislators much more power. The effects of investing such power in state legislatures would be these: (1) government would become much closer to the governed, (2) experiments in freedom would be possible throughout the republic, and (3) voters would know whom to blame when things go wrong. When the Ninth Circuit Panel orders San Diego to take down the cross at its military cemetery, ordinary folk could go to their state legislators and demand that the federal judges on that panel be removed. These state legislators could actually cast a vote to do just that. And every federal official would face real consequences for a reckless reading of the Constitution, the document intended to preserve the rights of states.
Bruce Walker is the author of a new book: Poor Lenin’s Almanac: Perverse Leftists Proverbs for Modern Life.
on “Preserving States’ Rights and the Constitution”