Chapter 4: States’ Rights
4.3 How to get freedom back
If we are to discuss how to restore freedom in regard to States’ rights, we have to make some acknowledgments and qualifications up front. Nevertheless, there is work we can do and which needs to be done.
Remember that this project focuses mainly on things average individuals can do to restore freedom in this country. We have already addressed those areas where we can have to most impact by far. These are education, welfare, and local government. Taking control to the maximum extent possible in these areas has got to be main priority. And much of what needs to take place in these three areas will keep the average family busy for years to come. If we can’t start here, we shouldn’t expect to do so where the treading will be more difficult. Trying to concentrate on issues above and beyond these—in both scope and governmental power—will only detract from the primary tasks for most people. As we shall quickly see, most of the steps that need to be taken in regard to States’ rights will have to come at the level of State representatives, State assemblies, and above. There simply is no key we can turn, hand we can shake, organization we can join, or person we can vote-in (should we even be so lucky as to have such a “perfect” candidate), that will magically transform the nation into a States’ rights paradise (should such a thing exist) over-night. With that said, however, there are still things average people can do toward restoring freedom in States’ rights.
First, self-education is always in order. Just as with local government, most people have no idea even of the names of their State legislators. Learn who they are and everything about them. Learn their beliefs, platforms, and everything about their voting history. Learn about your State governmental system in all of its branches, departments, procedures. Why not learn some of its history while you’re at it. (Do your State and local historical societies or museums? Check them out.)1 You’ll probably find out some interesting connections and wealthy families stretching from way back all the way to the seats of power today. Special interests tend to be homebrewed and inbred. At any rate, knowledge of who representatives are, how the system works, what various laws are, and what issues are on the floor or in queue are all part of this learning process.
Second, individuals should start websites monitoring State officials just as we described for local governments. This site should be dedicated only to State matters, and not mixed with either local or national political campaigns, etc.—except inasmuch as local or national political matters directly relate to State sovereignty, etc. The goal here is ultimate transparency. This is the ultimate form of education: revealing to people things they would not normally know and understand. It is also a great service to your fellow citizens: since most people have no clue about such things, don’t even think beyond the normal media, and wouldn’t know where and how to find important information even if they did consider it, you can provide an invaluable service with a State-politics clearing-house website or blog. Since so few people will take the initiative on something like this, it could be the greatest contribution you could make to the cause of liberty. Especially if you have the skills (not a whole lot required!) and time available to do it, and are looking for a way to contribute, it is almost imperative that you begin now.
Part of your own educational process will include learning the vast array of issues where States’ rights can restore freedom. One of the best places to observe some of these, currently, is in the work being done by the Tenth Amendment Center (TAC). Now, this acknowledgement is by no means a blanket endorsement of that organization, although it is also not to say otherwise either. I simply don’t know that organization inside-and-out enough to say at this point. But the work they are doing is in fact admirable in both scope and detail. They have drawn up model legislation for a host of issues which States can apply in their own jurisdictions. Consider just a few of the areas in which they are currently working:
Nullification of Federal Health Care
State control of State National Guards
Freedom from federal firearm registration and regulations
Protection of intrastate commerce
Protection of local food and food commerce
Protection from national ID (REAL ID, etc.)
Protection from TSA offenses, etc.
Nullification of unconstitutional legal tender laws
Nullification of “Cap and Trade” and other EPA regulations
regulation of federal tax collection and revenue
Sheriffs First” laws against unwarranted federal policing activities
Industrial hemp freedom acts
This is an impressive list, but the potential is even greater than this. As I will discuss in a moment, a move to practically nullify Roe v. Wade could be effected at the State level, and indeed has already been attempted at least once (it failed by an 11% margin, almost certainly due to a refusal to allow any exceptions at all, such as mother’s life in danger, etc.). It can probably go beyond this as well. At any rate, it will be helpful to find your local chapter of TAC, and ask how you can help get the word out in your community.
TAC also works for issues which may sound uncomfortable to some Christians—such as State control over marijuana laws. In defense, the issue here is not about personal stances on marijuana—medicinal or otherwise—but rather jurisdiction. How does the U.S. Constitution apply to this issue? Many would argue it does not, and that acquiescing on this one Constitutional issue legitimizes Federal usurpations in all other areas not explicitly enumerated in the Constitution as well. After all, if we submit to the idea that the Constitutional interstate commerce clause applies to the regulation of marijuana inside the State, then that can be used as a precedent when the Feds move to regulate other commerce within the State as well. But whatever your position on this particular issue (and certainly we must account for our emotions in regard to “drug abuse” and like epithets), it should not take away from the whole range of other issues TAC is addressing in favor of the Tenth Amendment and States’ rights. It is vital that we not throw out the baby with the bathwater (should there be any bathwater to throw out at all). We will return to nullification, etc., momentarily.
Also, having learned about your State reps, you may discover that they themselves have little knowledge or ambition in regard to States’ rights. And they will likely know nothing about the potential State power offers for reclaiming freedom in the many areas just discussed. You could aid your fellow citizens by informing your State reps of these things, and providing them information to pursue these avenues. This is still part of the educational process, and it is something an average person can do toward advocating States’ rights well within the Constitutional bounds of the Tenth Amendment.
From this point, then, we move from “What can I do now,” to “The way things ought to be.” Beyond the immediate practical steps, in other words, there are larger goals—but these are definite if lofty goals at which to aim. Educating your reps is one thing, getting them actually to develop, introduce, and promote States’ rights issues in Assembly are quite another. And it is here that individual efforts will be limited. But this should not stop us from discussing them.
Nullification and Interposition
The doctrine of “Nullification” was expressed in the Kentucky Resolutions written by Thomas Jefferson in 1798. It was a reaction against John Adams’ atrocious Alien and Sedition Acts which enhanced federal deportation powers at the President’s whim, and made criticism of the administration a criminal act. Jefferson and many others deemed these Acts unconstitutional, and argued that when the federal government passes unconstitutional acts, the States have a right to declare them null and void within their own jurisdictions. Jefferson wrote, “whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.”2 For this State power, the Resolutions appealed explicitly to the Tenth Amendment. Nullification, therefore, is a States’ declaration that a federal law exceeds Constitutional powers, and is thereby considered null and void within that State.
At the same time, Madison penned the Virginia Resolution (singular), which posited the similar notion now called “Interposition.” The Virginia version exposited the same view of States’ rights, although Madison did refer to it as not only a States’ right but its “duty”; in times of federal tyranny, States are “in duty bound, to interpose, for arresting the progress of the evil.” Some view this as going beyond mere nullification to active resistance. This does not seem to me to be a necessary implication of “arresting the progress of evil.” A subsequent review by the Virginia legislature asserted that a State declaration could have no legal force upon the federal government, but was only an expression of opinion, but even this leaves open the possibility that a State may decide in some way actively to resist—either alone, or in concert with other states.
At any rate, the idea of States resisting tyranny from legal lords above comes directly from the history of Reformation theological social theory. Calvin (although to a lesser and less systematic extent, Luther as well) and his disciples developed the idea of the intervening “lesser magistrate” who resists impositions of tyranny from above.3 It is a biblical and historically Christian concept in which a representative civil ruler acts representatively on behalf of the good of civil liberty against the evil of tyranny—the civil magistrate’s job, after all (Rom. 13).
This is what, historically, the American Declaration of Independence was—an interposition of the colonies in concert against King George III. In this sense, we can speak of “interposition” in a more general way without having to accept all of the technical terminology that comes along with Madison’s Resolution. We can also speak generally of nullification in the same way. We can even celebrate Jefferson’s fabulous rhetoric in this regard without adopting every jot and tittle of the Kentucky Resolves. Therefore, “let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution,” by which “man” Jefferson meant our civil rulers, and by which constitutional “chains” he meant the Tenth Amendment.
Ending Abortion Now
What are some of those lofty goals at which State officials could aim? Aside from TAC’s long and important list already referred to above, perhaps the most important and powerful issue for Christians that can be addressed by State power is the abomination protected under Roe v. Wade. This was the subject of an informative lecture by Constitutional Lawyer Herb Titus, given at American Vision’s annual conference in 2009: “Restoring the Sanctity of Human Life State by State.” Without going too far in depth into the arguments, suffice it to say that the Supreme Court decision contains holes that can be exploited, and more importantly rests on factual assumptions that are today disproven by more advanced knowledge. Therefore, a State could set a precedent with a well-designed, thoughtfully constructed statute which would effectively displace the ruling of Roe v. Wade—even if it remains on the books!
Most Christians don’t realize that the legal decision of Roe v. Wade had nothing to do with determining when life begins. This aspect of the situation was explicitly not decided in the case. As the writer of the opinion, Justice Blackmun, states in it:
We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.
He went on to discuss different theories, but all this was superfluous to the overall decision. What this allowed the court to do, however, was subsequently to forbid the States—on the same facts only, by the way—to impose any single view of the beginning of life upon citizens.
The decision was made based on that genius piece of Lincoln’s legacy: the 14th Amendment, period. To whom do the Constitutional protections of life and privacy apply? The State of Texas (Wade) argued that a fetus is a “person” within the language of the 14th Amendment. The Supreme Court acknowledged, “If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment.” The problem was, that Texas’ application of that Amendment to the unborn was a novelty—there was nothing explicit in the Constitution saying as much, there was absolutely no legal precedent for interpreting it that way, and there was no historical precedent from the time of the Amendment for such an understanding. As such, the Court ruled this application of “person” to be unconstitutional. For the 14th Amendment itself clearly defines exactly who exactly are “citizens” and thus whose rights are protected: “All persons born or naturalized in the United States. . . .” There you have it: the Constitution protects only those who are born, not the unborn.4 This, coupled with the other observations led the Court to conclude, “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” Yet since the mother was in fact “born,” she was protected: and thus the mother’s right to life and privacy is all that was deemed to be left standing.5 Thus the famous decision hinged upon a technical argument over a definition, and the application of wording completely unheard-of and unforeseen by the people who wrote the Amendment.
Yet, as I said, the ruling is not airtight and not insurmountable. Even beyond what we have said already, yet another powerful approach is available to States. While the word “person” does not apply to the unborn according to the U.S. Constitution, there is nothing to prevent States from adopting Amendments to their State Constitutions which provide greater protection of life than that of the U.S. And the beauty of this approach is that the Supreme Court consistently defers to the State Constitution or State Court rulings in order to determine the definitions of State laws. Thus, in short, a State could define “person” to include the unborn, and for any laws passed in regard to that definition, the Supreme Court would abide by the State’s definition for that case because it afforded a higher protection of life than the U.S. Constitution. Since the State of Texas did not have this in place at the time, its appeal to the 14th Amendment was judged by Federal precedents and the definitions derived from the U.S. Constitution, and thus, it lost.
But in a future case, if a State did amend its Constitution, decide a case, or even perhaps pass a statute that properly expanded the protections of life to unborn persons, then any Supreme Court challenge would have to deal with the State definition as a higher protection and sustain it. For this reason, today, there are groups advocating “Personhood Initiatives” and working for “Personhood Amendments.” These are at both the State and national levels.
Christians in the right-to-life world simply have to learn that a decentralized solution is best and most likely to succeed. The strategy of a “once-for-all” reversal of Roe has been ineffective for almost forty years now. This is not to say it’s an impossibility; but had the time and money been focused on local solutions for this whole time, you would today very likely see life more properly protected in a vast array of States already, and the forces of infanticide pushed to the blue fringes of the nation. Those who will accept only a single, national solution to abortion are saying that if they cannot outlaw abortion everywhere then they don’t want it outlawed anywhere. The corollary to this is even more startling: if they cannot outlaw abortion everywhere, then they’d prefer it to be legal everywhere. So the power and potential of a decentralized, States’ rights approach should be evident to everyone. Indeed, it should immediately become imperative to everyone who cares about the right to life.
State officials who are interested in advancing these measures can seek them out and get involved. Individuals who wish to do what they can—“county rights” style—could get involved with their local and State-wide groups, ask for direction, volunteer their time, and inform any and all of their State representatives, Senators, and other officials of these causes.
This applies directly here to the right-to-life issues, but really applies to any of the Tenth Amendment issues listed above. Contact your officials’ offices. Ask around. Search the web for groups or local committees involved in whatever States’ rights issue you feel most strongly about. Find out what’s already being done, and if you find the work worth joining, then get to it. At the very least, you should find such a cause and such a group and support them with donations. If you don’t think you have any time to spare, or nothing else to contribute (which is almost certainly false), then give money. The causes of life and liberty can employ your $25/mo. better than the movie channels or dinner at Applebee’s this week. But volunteering help, skill, and time is even better yet.
Next section: Taxation and a free society
- In my experience, State and local history (as well as State and local government) are not well-emphasized in public school curricula. Most students will graduate with little or no knowledge in these areas—to an even worse degree than in other areas. This means that such education is up to you.(↩)
- Kentucky Resolution 1.(↩)
- See Douglas F. Kelley, The Emergence of Liberty in the Modern World: The Influence of Calvin on Five Governments from the 16th Through the 18th Centuries (Phillipsburg, NJ: P&R Publishing, 1992); and David W. Hall, Calvin in the Public Square: Liberal Democracies, Rights, and Civil Liberties (Phillipsburg, NJ: P&R Publishing, 2009).(↩)
- A good argument could be made the other way, I think, but the language of the Amendment is in fact terribly unhelpful. On the surface of it, the idea that the Constitution only protects the rights of the “born” in the word person is like arguing that Jefferson’s Declaration that “all men are created equal” and have the natural rights of “life, liberty, etc.” only technically applies to men and not women. After all, it says “men.”(↩)
- Although the Court did go on to allow for some State regulation in regard to the mother’s health, etc.(↩)