Tenth Amendment federalism

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Return to Federalism

Thursday, November 6th, 2014

As we make sense of this week’s sea change — of the Great Shellacking Democrats took on Tuesday — some caution is in order.

In 2006, voters did not choose the Democrats because of what they were or what they promised, but because of what they weren’t: corrupt, clueless Republicans. Now, Republicans should remember that they were mainly chosen because they aren’t Democrats: that is, hopelessly narrow-minded, self-righteous, and corrupt.

So, what should Republicans do?

Maybe it’s not to start out of the gate by repealing Obamacare, which its namesake would simply veto.

In Alaska, Oregon, and Washington, DC, voters approved the legalization of recreational marijuana use. In California, with Proposition 47, Golden State voters ushered in a new regime, downgrading many, many drug violations and former felony crimes to misdemeanor status.

This is the people of the states leading.

They are rejecting the “get tough” approach both parties have supported for decades, an approach that has had the dubious result of being most popular with public prison workers’ unions and the private prison lobby

Opposing drug use may be socially “conservative.” Politically speaking, however, granting government nearly unlimited police powers, and without regard to objective results, is not.

If the Republicans want to lead in Washington, they should follow the people in these bellwether elections. Back them up. End the Drug War and, with it, the Prison-Industrial Complex. Return criminal justice back to the states, where the Constitution originally put it. And where modifications can be more easily made.

Return to federalism. Return to reason.

This is Common Sense. I’m Paul Jacob.

Land Un-Grab?

Tuesday, May 13th, 2014

When I took up the Cliven Bundy story, just before Bundy spewed his racist farragoes, I concentrated not on him, but on the broader issue: too much federal government ownership of real property in “the tiny state of Nevada” and elsewhere.

Since then an expert has weighed in on my side: Terry Anderson of the Property and Environment Research Center.

Sorta.Barbed Wire Fences in Grazing Lands - a technological way to establish private property on the range

I supported privatization of grazing lands. But I mentioned that forest land should “at least be ‘state-ized,’” that is, transferred to the states. And that, it turns out, is what the current crop of Sagebrush rebels want for grazing land.

But there’s a downside to such a transfer. Grazing fees would likely go up.

Anderson titles his piece “Careful What You Ask For.”

And that cuts both ways. The environmentalists who want to centralize even more control in Washington, D.C., think that booting out privately owned ungulates would accrue benefits to the ecosystems. They are wrong, Anderson explains:

But “no moo” may mean fewer tweets, clucks, and bugles from wildlife. As private ranchers demonstrate, good land management can control noxious weeds, improve water quality, sequester more carbon, and generate more wildlife habitat.

Yes, “cattle grazing has improved the ecosystem.”

Anderson prefers privatization.

But that remains politically unlikely. The Cato Institute’s Randal O’Toole suggests a compromise: fiduciary trusts, where the feds retain land title. Centuries of common law bolster the idea, says O’Toole, who assures us, under this form of oversight, “trustees preserve and protect the value of the resources they manage, keep them productive, and disclose the full costs and benefits of their management.”

Both of these alternates are better than current government mismanagement and overkill.

This is Common Sense. I’m Paul Jacob.

Nullifying Future Fed Gun Regs

Monday, March 24th, 2014

The legislative history of Idaho’s Senate Bill 1332 can be briskly told; its enactment was swift indeed. The Federal Firearm, Magazine and Register Ban Enforcement Act was

  • introduced on the tenth of February;
  • unanimously approved by the full Senate nine days later;
  • leapt out of House committee, on March 10, with a Do Pass recommendation;
  • read in full in the House two days later, and
  • passed unanimously; whereupon it
  • went to the governor, who signed it into law March 19.

Because of an emergency clause, SB-1332 went into full effect on that date.Idaho, with bullet holes?

The new law instructs Idaho’s public servants not to co-operate with the federal government on any future gun and ammo registration, prohibition or regulation passed by the U.S. Congress. It also provides a civil penalty of a maximum $1000 fine for each instance of co-operation.

It’s part of the low-key rebellion that many state legislatures and governors are waging  against the federal government. Claiming something like a right to nullify unconstitutional laws — a right enumerated, after all, as the Tenth Amendment to the Constitution — at issue is the usurpation of state prerogatives by the feds.

We’ve seen a number of states resist the federal government’s attempt to “organize” a grand (and catastrophic) public-private alliance known as Obamacare.

The current Idaho effort doesn’t strike me as pure nullification, however. It relies on a proven principle of federalism: the states may not be commandeered to enforce federal law. Specifically, any future federal law attacking our essential Second Amendment rights.

This is Common Sense. I’m Paul Jacob.

Too Respectful of Congress?

Thursday, June 27th, 2013

In disagreements between individuals and the IRS, I tend to side with individuals against the IRS. So Wednesday’s Supreme Court ruling against the Defense of Marriage Act seems about right, on the face of it.

Yes, the judicial review and nixing of DOMA regarded a tax case.

The state of New York recognized the marriage of two women, Edith Windsor and Thea Spyer. Ms. Spyer died in 2009. Ms. Windsor inherited, paying $363, 053 in estate taxes. She sued against DOMA because she wanted to claim the federal estate tax exemption for surviving spouses.

The Supreme Court majority sided with Windsor. Chief Justice Roberts dissented, arguing that the court lacked the authority in this case to overturn this law; and Justice Scalia dissented separately, joined by Justice Thomas; Alito wrote another separate dissent.

Fascinating reading, all of it, but I was disappointed that Justices Scalia and Thomas are so deferential to Congress regarding DOMA, without any consideration of the Tenth Amendment, which recognizes that states have powers not delegated to the federal government — and surely regulating marriage was not one of the enumerated powers delegated to Congress — or the Ninth Amendment, which recognizes “rights retained by the people,” and that has a lot of bearing on the practice of marriage.

It seems to me that in matters of marriage, at the very least, the federal government should be following the people and the states, not the other way around.

This is Common Sense. I’m Paul Jacob.

Nullification Today

Wednesday, May 8th, 2013

As the federal government lurches further out of control, wildly grasping to increase control over our lives, an old and controversial method of reining in our central government gains popularity: State nullification of federal law.

A recent Rasmussen survey asked whether “states have the right to block any federal laws they disagree with on legal grounds,” and 38 percent of likely voters surveyed said “Yes.”

Cutting to the quick of the Commerce Clause, a new Kansas law — Senate Bill 102, the Second Amendment Protection Act, signed by Governor Sam Brownback last month — states that firearms manufactured and owned in Kansas that do not cross state lines are not subject to federal law.

Of course, the Supreme Court thinks otherwise. In Wickard v. Filburn, the Court allowed the federal government to regulate darn near anything on the grounds that any conceivable act of consumption affects demand, and thus “commerce.” Goofy ruling? Yes. But by tradition it’s the Supreme Court justices who get the final word.

Yet even that has been denied by many constitutional theorists, including Thomas Jefferson and James Madison — “Mr. Constitution” himself — both of whom supported nullification, as recently explained by historian Tom Woods. No compact joined into by multiple parties may only be interpreted by one of the parties alone, unless specified to that effect. The Constitution doesn’t even mention judicial review, so the tradition of the Supreme Court’s final word is itself a matter of dispute.

Standing up for the status quo, Attorney General Eric Holder has written to Brownback against the new Kansas law, citing the Supremacy Clause. Problematic? Yes. But not easily dismissed.

Brownback has volleyed back.

At least we can expect the old issues of constitutional law to gain a new and lively hearing.

This is Common Sense. I’m Paul Jacob.

How to Surrender Freedom

Monday, February 25th, 2013

When in the fight for liberty should one give up?

Never. Contrary to deterministic notions of social change, there’s nothing inevitable or permanent about any loss of our freedom.

What then should we make of the words of Daily Debate scrivener Robert Tracinski? Noting criticism of Florida Governor Rick Scott for reversing his stand against the Democrats’ health care reform package, Tracinski, also a foe of Obamacare, asserts that the battle to either repeal or block it “was effectively over with November’s election, when Democrats retained the presidency and control of the Senate.”

A bad blow is not a permanent conquest, however.

Scott’s opposition was central to his 2010 campaign for governor. As governor, he led a lawsuit against Obamacare. After the Supreme Court’s anti-constitutional decision upholding it, he said he would keep fighting by declining federal funds to expand Medicaid.

Alas, Scott has now thrown in the towel. (We don’t know yet whether state lawmakers, whose acquiescence is also required, will similarly discard their drenched terrycloth.) Proponents of greater government hegemony over the medical industry crow that all other hitherto recalcitrant governors will, in the words of David Firestone, “soon knuckle under and do exactly the same thing. . . . By investing a relatively small amount of their own money to cover the poor, states get a huge increase in federal Medicaid funds.”

You see how the bribe to the states is made. Cave in to a usurpation, and some of the apparent increased burdens will be borne not at the state level, but by the already insolvent, debt-ridden, deficit-addicted federal government.

It’s a sick system. And I’m not talking about just Obamacare.

This is Common Sense. I’m Paul Jacob.

Put Federalism In Your Pipe

Tuesday, November 13th, 2012

Though centralized power, coalescing in Washington, D.C., has increased in recent years as a bipartisan effort to grow government, it’s worth noting that true federalism is not dead.

Take one of America’s longest-running atrocities, the “War on Drugs.” The American people are rebelling, leaving their political representatives, state and national, in the back seat. The recently successful marijuana legalization initiatives in Colorado and Washington State are already taking effect, thus marking a major retreat in the once-popular, now increasingly hopeless war.

Last Friday, The Seattle Times reported that King County has dismissed 175 cases involving people over 21 and possession of one ounce of cannabis or less. “Although the effective date of I-502 is not until December 6, there is no point in continuing to seek criminal penalties for conduct that will be legal next month,” explained the county prosecutor.

A smaller number were dismissed in Pierce County, with its prosecutor saying that, “as a practical matter, I don’t think you could sell a simple marijuana case to a jury after this initiative passed.”

In Colorado, a major drug task force has been disbanded. The excuse is lack of funds, but I suspect that Colorado officials had read the writing on the wall, and it wasn’t “Mene, Mene, Tekel, u-Pharsin” — it was the wording of Colorado’s Initiative 64.

The federales don’t have the manpower to enforce federal law in the 50 states, or the constitutional authority to dictate state enforcement of either federal law much less the nature of state criminal laws.

Courtesy of the citizen initiative, we could be seeing the next major devolution of power away from the nation’s capital.

This is Common Sense. I’m Paul Jacob.