While many modern historians, liberal politicians, and media elites would like to think that the very concept of “state sovereignty” died when Robert E. Lee offered his sword to Ulysses S. Grant at Appomattox Courthouse on April 9, 1865, the people of one state recently gave state sovereignty a ringing endorsement at the ballot box. On October 3, 1998, 56 percent of Louisianians approved Amendment 11, which declares:
The people of this state have the sole and exclusive right of governing themselves as a free and sovereign state; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right, pertaining thereto, which is not, or may not hereafter be, by them expressly delegated to the United States in Congress assembled.
The statement is now part of the Louisiana constitution’s “Declaration of Rights.”
While much disparaged by those who look upon the United States as one, indivisible nation, state sovereignty is a concept that dates back to the very foundation of the American confederation. That each state was “independent” and “sovereign” was claimed in many of the founding documents, including the Declaration of Independence, the Articles of Confederation, the Treaty of Paris, and, a little later, the Kentucky and Virginia resolutions. Many, if not most, of the Founding Fathers looked upon state sovereignty as an indisputable fact.
Senator John C. Calhoun of South Carolina greatly expanded upon and refined Thomas Jefferson’s doctrine of states’ rights. When the Southern states exercised their sovereign rights in 1860-61 to withdraw the powers they had delegated to the government of the United States and declared their independence, they believed they stood on firm moral, constitutional, and legal grounds.
In the recent election, voters in Louisiana showed that these beliefs are still deeply held by the people of at least one state. While other state legislatures have passed “Tenth Amendment” resolutions in recent years, the people of Louisiana actually affirmed what Jefferson Davis always called the “Cause of the South”—state sovereignty.
Louisianians have a long history of carefully considering proposed constitutional amendments and rejecting those they do not like. It is significant, therefore, that this one garnered support all over the state. The measure passed in 55 of Louisiana’s 64 parishes. It won by a landslide in the central and southwestern parts of the state; fittingly, it garnered 74 percent of the vote in the southwestern parish of Jefferson Davis. In 23 parishes. Amendment 11 won 60 percent or more of the vote.
The amendment narrowly lost in several of the state’s urban areas, including Orleans Parish (New Orleans), Caddo Parish (Shreveport), and East Baton Rouge Parish, though it received between 47 and 49 percent in each. But other urban areas supported it, including Lafayette Parish (Lafayette), Calcasieu Parish (Lake Charles), Rapides Parish (Alexandria), and Ouachita Parish (Monroe).
Amendment 11 enjoyed widespread support among the state’s elected officials, including conservative Republican Governor Mike Foster. (When Foster ran for governor in 1995, he set himself apart from the crowded field of candidates by strongly supporting Second Amendment gun-ownership rights and a concealed-carry-law, which he signed into law after becoming governor.) All of the state’s 39 senators but one (a Republican) supported the original legislation for the amendment, and all but seven (all Democrats) of the 105 members of the Louisiana House of Representatives supported it.
The only opposition came from left-leaning media elites, including some of the state’s biggest newspapers. In the state capital of Baton Rouge, the Advocate, perhaps Louisiana’s most politically influential newspaper, offered the most strident opposition. The newspaper’s editorial urging rejection of the amendment bordered on hysterics. The editors lectured readers that “Americans fought a bloody Civil War to settle the issues raised by a proposed amendment to the state Constitution.” They went on to castigate legislators for “thoughtlessly sending on to the voters a piece of political nonsense.” (The outcome of the election castigated the media elites who think they know better than Jefferson, Calhoun, Davis, and the 260,000 Southerners who died fighting for this very principle from 1861-65.) The Advocate‘s editors also called to task Senator Max Jordan (R-Lafayette), who originally proposed this “unnecessary and even dangerous” amendment.
Then they launched into a diatribe against the South, claiming that “Jordan’s amendment unfurls the old South battle flag one more time.” They played the race card by linking the amendment to segregation, and followed with a truly asinine statement: “We thought this fight was settled in the unpleasantness of 1865, and by the 20th-century decisions of the Supreme Court in the civil rights era.”
To the newspaper’s credit, the editors did allow Senator Jordan to respond and printed numerous letters to the editor regarding the editorial, all but one of which were favorable to state sovereignty. In his response, Jordan called the proposition “an important reaffirmation of states’ rights,” adding, “We have litigated so many things, it would be a good thing that we could point to in our own constitution.” The state senator also argued that the federal government has trampled on the Tenth Amendment: “If we put [state sovereignty] in our own constitution, then it gives legal scholars, lawyers and the attorney general something we can point to on everything from abortion to the Brady Bill, mandates in education, etc.”
Tommy Curtis of Lake Charles replied to the Advocate‘s editors in a particularly perceptive letter:
The Advocate, like so many who misunderstand the proper relationship of the Federal and State governments, sees any reference to States’ Rights as a code word for Jim Crow, and a hearkening back to the dark days of segregation and legalized apartheid. This is a laughable, but oft used premise to defend the over reach of Federal power. True Federalism, which we don’t live under anymore, is a compact of member States who agree to subordinate certain governmental powers to a central authority in certain specified common affairs. It does not mean a surrender of all sovereignty to the central government; this is what the framers understood, and is exactly what has . . . been perverted since the Revolution of 1861-65, commonly known as the Civil War.
Curtis went on to say that John C. Calhoun and Confederate Vice President Alexander Stephens understood the original intent of the Framers better than such nationalists as Abraham Lincoln and Andrew Jackson.
Either we believe in the consent of the governed, or we don’t. We should follow the lead of the John C. Calhouns of our day and thank State Senator Max Jordan for his courageous offering of an opportunity for Louisianians to remember that we were once a free people, even if the 10th Amendment to the U.S. Constitution is now simply a dead letter. With the right direction and leadership, the republic that has been lost might someday be revived.
Was the state sovereignty amendment just a meaningless feel-good measure, as some critics said? Dr. Michael Hill, president of the League of the South, claimed that it would be difficult to exaggerate the importance of the victory:
We owe our compatriots in Louisiana a debt of gratitude for pushing through this amendment by a rather easy margin. Once our state constitutions contain such an amendment, then we will have solid ground from which to introduce the League’s State Sovereignty Bill. We have been patient, and now things are beginning to go our way.
The state sovereignty amendment, however, is only one of many fronts on which Louisiana is challenging the federal government. One of the state’s most recent efforts to nullify a federal action has been to block the attempt by the U.S. Department of Health and Human Services to nationalize the human- organ donation system. Louisiana has one of the most successful organ donation programs in the nation and one of the highest donation rates. The system is currently run by the private-sector United Network for Organ Sharing, which is operated by health-care professionals, if someone donates an organ, state residents get first priority; those in nearby states come second; and, if no regional matches are found, the organs are donated to those in other sections of the country. Louisiana already sends about a third of its donated organs out of state and ranks above the national average for donations. The state also has reciprocal organ-donation agreements with some other states.
Federalization would have meant a national system that would have given priority to the sickest patients, no matter where they are. Physicians in the program said this would likely have resulted in most organs going to five or six large metropolitan areas around the nation, while small state systems like Louisiana’s would wither away. Dr. John McDonald, director of the Louisiana State University Medical Center transplant center, said that citizens of Louisiana who are unable to afford to go to one of the big national centers for transplant surgery would suffer if the new national program went into effect.
In a classic case of how a state can interpose to protect its citizens from an overreaching centralized government, Louisiana challenged the proposed system on several fronts. Legislators passed a law making it illegal for organs donated in Louisiana to be sent out of state without first checking to see if they are needed by citizens of the Pelican State. The legislature also passed a resolution directing state Attorney General Richard Ieyoub to challenge the legality and constitutionality of the federal regulation. The resolution stated that organs donated in Louisiana “are to be considered a state resource and used when possible as a resource in the state.”
Ieyoub, who in 1977 donated a kidney to his youngest brother, agreed to initiate the legal action, arguing that the current decentralized state and regional system works well because it both promotes donations and makes the best use of the donated organs. Ieyoub said people are more likely to donate if they know it may help a relative, friend, or neighbor rather than going to a large city, such as Philadelphia, where it may possibly never be used. The attorney general flatly stated that, if the new federal system is implemented, the Louisiana donation system would be destroyed and people would die. The suit was filed, implementation of the federal program was blocked, and Louisiana’s position was upheld by the Fifth Circuit Court of Appeals.
The coup de grace to nationalization was given by U.S. Representative Robert Livingston of Louisiana when he cosponsored legislation placing a one-year moratorium on the proposed federal program and then protected it during budget negotiations in Congress.
Probably no issue has more alienated Louisiana from the federal government than has abortion. The state has had a running battle with Washington over regulation of the most basic of all human rights, the right to life. While forced by Roe v. Wade to allow abortion in the first 13 weeks of life, Louisiana legislators have crafted some of the most restrictive abortion laws in the nation. After the first 13 weeks, abortions are allowed only “for the express purpose of saving the life of the mother,” and in cases of rape or incest.
The state’s latest battles with the federal government have been over taxpayer-funded abortions and the state’s ban on partial- birth abortion. Last October, a 26-year-old Louisiana woman on Medicaid made national headlines when the state refused to pay for her abortion. The woman, who is awaiting a heart transplant, sought the abortion in the third month of pregnancy, but doctors at the Louisiana State University Medical Center in Shreveport refused to perform it because of a state law which prohibits the use of public funds for abortions unless the pregnancy puts the mother’s life at risk or resulted from incest or rape. (Louisiana had been forced several years ago to offer abortions for Medicaid patients under the threat of a cutoff of all Medicaid money from Washington. However, the state placed the strictest possible regulations on Medicaid-funded abortions.) To obtain an abortion after 13 weeks, a panel of doctors must rule that there is at least a 50-percent chance that the mother will die unless she has the abortion, hi this case, the abortion was denied. The National Abortion Federation in Washington, D.C., eventually covered the costs for the procedure, which was performed in Houston, Texas.
Still unresolved, as of this writing, is the Louisiana partial-birth abortion ban, which was blocked by a federal judge before it could be put into effect. When President Clinton vetoed a partial-birth abortion ban for the second time, the Louisiana legislature passed such a law for the state. Last November, in the U.S. District Court for the Eastern District of Louisiana, the state defended the law, arguing that a child in the process of being born has never been stripped of his personhood; Roe v. Wade, therefore, does not apply. Louisiana claimed the right to protect the child’s life because pregnancy ended when the birth process began. “It comes down to how you decide when pregnancy ends and when birth begins,” Assistant Attorney General Roy Mongrue told the court. The state’s medical experts testified that pregnancy is terminated by the onset of the birth process. Partial-birth abortion would thus be infanticide, not abortion, and the state would have every right to regulate it.
Arguing for abortion proponents, Priscilla Smith, an attorney for the Center for Reproductive Law and Policy in New York, said the state was attempting to stop all abortions. “They are trying to change the constitutional definition of a person by moving up a few inches into the woman’s body and defining a person to be a fetus partly within the uterus and partly out of a uterus even though it’s in the woman’s body,” she said.
As the battles over partial-birth abortion and organ donation show, Louisiana’s state sovereignty amendment was not an isolated, feel-good measure that means nothing, as some media elites would like to believe. Rather, it was a logical continuation of an ongoing struggle by Louisianians and most of their elected officials to recover some measure of their lost independence and states’ rights. If other states follow suit, there may still be some hope of reviving the federalist system instituted by the Founding Fathers.