“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.”
—The Tenth Amendment
Following the passage of the national gun ban wrapped in pork, Representatives Gingrich and Gephardt congratulated each other for their bipartisan cooperation and remarked how much they looked forward to working together on the nationalization of health care. But they failed to account for one political reality: a large number of citizens, concentrated in the Intermountain West, persist in behaving as if the Constitution were still the law of the land. They interpret the Constitution as a document that severely restricts the purview of the federal government, and it is on that basis that they consent to be governed.
Before Ronald Reagan’s ascension to nominal control of the executive branch in 1980, conservatives devoted much effort to promoting the seemingly lost cause of states’ rights and federalism. Centered in the South, the battle encompassed everything from the usurpation of state sovereignty by the national government in the enforcement, by the standing army, of desegregation to the passage of the various “civil rights” acts in the 1960’s. While conservative Southerners correctly saw this “Second Reconstruction” as a fight for the preservation of their regional culture and defense of their legal sovereignty, the philosopher kings of the day succeeded in portraying white Southerners as ignorant, inbred, gun-toting, militant racists Ronin Colman is a businessman in the Republic of Texas. bent on keeping good, decent, hardworking, original thinkers like “Dr.” King from sitting next to them at the local soda fountain. Ignorant of the Constitution and unwilling to see their own future in the subjugated South, the majority of Americans turned their back on the Southern states and congratulated themselves on their own liberalism.
During the Reagan/Bush years, many conservatives, thinking they had won the ball game, stopped talking about federalism and fell into the trap of believing in federally mandated “one size fits all” solutions to local problems. Take, for example, the national “War on Drugs.” This resulted in the creation of a host of new federal crimes and draconian asset forfeiture laws that make targets out of citizens who have the misfortune to possess land coveted by some bureaucratic—or rather kleptocratic—agency. Having accepted the “federalization” of criminal law, these same conservatives turn a blind eye to the increasing militarization of federal law enforcement. Our legislature, once very hesitant to allow the FBI to carry guns, now permits 53 federal agencies to arm its agents and make arrests. Even the Environmental Protection Agency has a SWAT team. Indeed, scarcely a murmur is heard from Congress when its minions act like soldiers of an occupying military force, conducting no-knock raids dressed in masks and ninja suits while brandishing German submachine guns.
In the absence of objections from either national political party (much less the Beltway intelligentsia), the federal government has assumed limitless de facto power over the affairs of the states and the activities of their citizens. Last March, Colorado State Representative (now State Senator) Charles Duke decided to do something about this. He introduced House Joint Resolution 94. When it passed in May, as H.R. 1035, the Colorado legislature served notice on the national government: “Resolved, the State of Colorado hereby claims sovereignty under the Tenth Amendment [and] the federal government, as our agent, is hereby instructed to cease and desist, effective immediately, mandates that are beyond the scope of its authority under the Tenth Amendment to the Constitution of the United States.”
Generally unreported by the mainstream media, Senator Duke’s resolution was the subject of a column by Walter Williams. Coincidentally, May was the month that the House of Representatives passed its bipartisan semiautomatic firearm and magazine ban, later incorporated into the national “Crime Bill” signed into law in September, Not surprisingly, a large number of disenfranchised gun owners (the law declared around 30 million lawfully owned guns to be “assault weapons”) took keen interest in Dr. Williams’ suggestion that the states could and should stand up to unconstitutional federal mandates “before the Congress completes its agenda to disarm us through weakening our Second Amendment protections.” This column made the “chain fax” circuit in record time and rallied further support for a movement that was already sweeping the West.
The Tenth Amendment/State Sovereignty/Secession movement appears to be a spontaneous mass movement. There is no charismatic leader or well-funded “public interest group” leading the charge. On the contrary, the movement seems to be made up of people whose only common traits are an adamant refusal to live under tyranny and a hard-wired connection to the infobahn. The individual groups are too numerous to list, but they seem to fall into one of three ideologically allied camps, differing only on the means to the end.
The Tenth Amendment supporters are by far the most prolific. They have followed the lead of Senator Duke and passed, in various forms, Tenth Amendment resolutions in Hawaii, Ohio, Missouri, Illinois, Oklahoma, Louisiana, Michigan, Pennsylvania, and California. Tenth Amendment resolutions are reportedly pending in an additional 22 state legislatures.
The obvious question is “so what?” The states send hundreds of resolutions to Congress each year which have no legal weight whatsoever and are easy to pass. The practical effect is to embolden the state legislature that initiated the Tenth Amendment claim to pass enabling legislation with some teeth in it. Once again the Colorado State Legislature has led the charge by passing SB94-157, the Federal Mandates Act. This nicely written piece of legislation is a Great Society stalwart’s nightmare. It requires, among other things, that a state agency requesting money to comply with a federal mandate list the clause of the Constitution that empowered Congress to make the law to begin with. If it is not there, the law is considered null and void in the state of Colorado. Revisionist case law does not count.
“Needless to say, the feds may be unimpressed with a statement of sovereignty and attempt to impose economic sanctions against the state, as has become their pattern over the years,” says Senator Duke. He proposes that the state collect various taxes on behalf of the national government, such as federal gasoline and income taxes, then make monthly disbursements of these escrowed funds only as long as the national government behaves itself. Senator Duke continues, “Every dollar disbursed by the feds originated somewhere through the sweat of someone’s labor. The sovereignty proclaimed by the state simply inserts the authority of the state, guaranteed by the U.S. Constitution, at a point to reassert control which should have never been given over.”
The major weakness in the Tenth Amendment proponent’s position is its reliance upon the federal government and its hired guns, the judiciary, to obey the law of the land. Last October 11, the Supreme Court refused to hear a Tenth Amendment case brought by Kansas against the Fair Labor Standards Act and the Age Discrimination and Employment Act. A Tenth Amendment case against the national law that makes it a felony to own a gun and live within 1000 feet of a school came before the high court on November 8. The NRA has also been successful in attacking the Brady Bill on Tenth Amendment grounds in the lower courts. Nevertheless, few will be surprised if the high court rules, as usual, that the omnipotent Commerce Clause supersedes everything. As Tocqueville predicted, a gradual but continuous shift in power from the states to the national government has occurred as a result of the requirement that disputes between the parties be resolved in the national courts.
Taking a somewhat stronger position, yet still working within the established national system, Governors Mike Leavitt of Utah and Ben Nelson of Nebraska have called for a national “conference of states” in 1995 to address and correct the imbalance of power. Governor Fife Symington of Arizona has joined the call, and the Arizona legislature has created a one-million-dollar Constitutional Defense Council that will sue the national government on Tenth Amendment grounds. While Governor Leavitt supports the Tenth Amendment movement, he does not appear to hold much hope for its success. “Congress will not fix this problem,” writes Governor Leavitt. “Congress has every incentive to continue the trend toward centralization, and the federal bureaucracy has even more. And we cannot depend on the courts. Over the last 60 years, the federal courts have generally not been friendly to states in their disputes with the federal government.” Governor Leavitt insists that the Conference of States remain scrupulously bipartisan and stick to the single issue—restoring state sovereignty—not getting caught up in gun control, abortion, school prayer, or whatever.
The conference will ask each state to send five delegates to the conference, four of them legislators, two from each party and two from each house. The fifth delegate will be the governor. The 250 delegates will then produce a “States Petition” consisting of specific amendments to the Constitution that shift the balance of power in the direction of the states. For example, an amendment allowing the states to initiate constitutional amendments and to “sunset” any law made by the national government not dealing with defense and foreign affairs has been suggested by at least one group. The delegates would take the States Petition back to their respective state houses for ratification. They then would “ask” Congress to pass the amendments as written and send them back to the states for ratification. Should Congress refuse, or tamper with the amendments, the threat of convening an unlimited Constitutional Convention which could dissolve the union would probably become a reality.
The Montana Shooting Sports Association (P.O. Box 4924, Missoula, Montana 59806) proposes a somewhat more direct solution to the problem of silly laws generated by the government; it proposes the “s” word, secession from the union. Timed to coincide with President Clinton’s signing of the Grime Bill, the MSSA announced its Freedom Initiative. “When Montana agreed to become a state, there was a basic presumption that the people of Montana would always be protected from the federal government by the Bill of Rights,” says MSSA President Gary Marbut. “Congress has abridged that presumption, and thereby nullified Montana’s contract with the other states. Therefore we have no further legal obligation to maintain the Compact with the United States. . . . There may be some debate about what the Second Amendment means to the Supreme Court or the people of Peoria, but there is no question about what the Second Amendment means to the people of Montana. ‘The great purpose,’ as Patrick Henry said, ‘is that every man be armed.’ Congress is willing to trade our rights for temporary political gain, but we will not submit to this accelerating betrayal of our constitutional rights. We choose to opt out.”
Montana’s constitution may be changed only by a vote of the people. MSSA will begin gathering signatures in June (the earliest date allowed by law). Assuming it is successful, it needs only 20,000 signatures—the Freedom Initiative will appear on the Montana Ballot in November 1996, just below Clinton’s name. If enacted. Article One of the Montana Constitution will be replaced with one that not only declares Montana to be a “free, sovereign and independent constitutional republic,” but also puts it on a hard money standard and forbids the Nation of Montana to create or allow a monopoly bank to borrow money. No other nation may own land within Montana, and Montana specifically disentangles itself from American treaty obligations.
The ideas proposed by the MSSA are unique only in their candor. Most of the states’ rights supporters I spoke with would, if pressed, concede that the legal dissolution of the union or legal secession were legitimate options once all other legal avenues for the restoration of constitutional federalism had been exhausted.
Whenever the subject of secession comes up, someone invariably says that the issue was “settled” during the War Between the States. While the South lost the war, it does not follow that its legal position was incorrect. Joseph Stumph, author of the Ultimatum Resolution and director of the Committee of 50 States is one of the premier scholars on the subject, “In essence, our federal government is the agent of all state governments,” writes Stumph in the Ultimatum Resolution. “The states are the creator and the federal government is the creature. It is axiomatic, or self-evident, that the creature cannot exceed the creator. The agent cannot exceed the authority granted by its principle. Any attempt to do so is ultra vires, or without authority, and a usurpation of its power.” Thus, “if the federal government no longer obeys the will of the states, and is continually in violation of the contract of agency, each state is free to withdraw its support of the federal government and select, or create, another agent to carry out the collective will of the states.”
Some might argue that although the original states were indeed sovereign nations prior to ratifying the Constitution, most states that joined the union over the years were carved out of land purchased by the national government and have no such claim to sovereignty. Not according to the “Equal Footing Doctrine.” Under Coyle v. Smith (1911), all states are on an “equal footing” with each other, regardless of the terms under which they joined the union. Since the original states owned all the land within their borders, the “federal land” that makes up the bulk of the Western states became de jure property of the state upon annexation.
At first glance it may seem surprising that the next battle for liberty is originating in the West. But the West was settled in large part by Southerners fleeing Reconstruction. The desire to be left alone runs in the veins of many citizens of the Intermountain West, as does the willingness to fight for that freedom. Nor has the spark of liberty been completely extinguished in the South. A new organization called The Southern League promises to rekindle the flame.
“The Jeffersonian principle that a free people may change its government if that government threatens life, liberty, and property is the cornerstone of our political tradition. Since the present central government has consistently violated the original compact of 1789, we hold that the time has come for the Southern people to engage in a serious discussion of political divorce,” writes Professor Michael Hill, president of The Southern League, in the inaugural issue of the Southern Patriot. “The Southern League does not advocate the overthrow of the United States government; on the contrary, we wish simply that Southerners in their states be left alone to run their own affairs with the independence they enjoyed under the Constitution of 1787.” What people are saying all over the West and South is simply this: either the Constitution can and will be restored or the people in the separate states will be morally, politically, and legally free to pursue their own destinies.