The battle over states' rights and federal powers
BY RANDY KREHBIEL World Staff Writer
Monday, February 11, 2013
2/11/13 at 7:08 AM
Everybody is a constitutional scholar these days, it seems.
From the proposition that the Second Amendment's sole purpose was to guarantee the right to track down runaway slaves to the resurrection of the long-discarded concept of nullification, the nation is awash with interpretations of the U.S. Constitution.
The 10th Amendment, the Second Amendment and the enumerated powers are particularly trendy. For real connoisseurs, there is the movement to repeal the 17th Amendment, requiring election of U.S. senators by popular vote instead of by state legislatures, which was the practice before 1913.
Nullification, long thought gone with the wind, has also resurfaced. Bills filed for the current Oklahoma legislative session not only declare actual or anticipated federal laws unconstitutional, but provide for felony convictions and prison time for anyone trying to enforce them.
Another bill, perhaps somewhat sportively, proposes a "Constitutional Challenge Cost Revolving Fund" to pay for the state's many lawsuits involving constitutional questions.
"It's a theme in the health-care debate that some state attorneys general and legislatures have decided to strut and swagger and prance about but the nullification argument, the interposition argument, has never prevailed," said University of Oklahoma law professor Rick Tepker.
Actual constitutional experts - those who have spent their careers studying and teaching the U.S. Constitution - shake their heads at some of the more recent notions. But, they say, testing the Constitution - and state resistance to federal authority - is ingrained in the American character.
"In terms of the old democracies, we're really special," said Oklahoma City University law professor Andrew Spiropoulos. "Americans really have dual identities. We think of ourselves as Americans, but we also think of ourselves as Oklahomans. Or Texans. Or New Yorkers."
That dual identity, rooted in the nation's evolution from individual colonies, is enshrined in the Constitution's enumerated powers and its 10th Amendment, which limit federal authority and guarantee the rights of the states.
Disagreement over the extent of those rights has figured in arguments ranging from tariffs to slavery to same-sex marriage. In the first half of the 19th century, a faction led by South Carolina's John C. Calhoun argued that states had the right to ignore, or "nullify," federal laws they deemed unconstitutional.
The issue was a major contributing cause of the Civil War, the bloodiest conflict in American history, and scholars generally agree the nullification argument ended at Appomattox Court House. But that hasn't kept Oklahoma and other states from trying to nullify federal laws on health-care reform, gun control and illegal immigration.
Tepker says such attempts are pointless and perhaps even dangerous.
"It's a settled issue," Tepker said. "It's been a settled issue since April 9, 1865, when General Lee surrendered to Ulysses S. Grant.
"I think it's a terribly sad pattern that the Calhounian rhetoric has been dredged up in a politically divisive and intellectually unsound way," Tepker said. "The saddest thing is that arguments that were thought to be beyond reasonable are now treated as though they deserves equal time."
Spiropoulos says the frustration that has given rise to some of those renewed arguments is natural.
"There is a good argument to be made that what's triggering this is the federal government's extreme view of its powers," he said. "Whether a law is unconstitutional is not the only test of whether that law is wise or good policy. There is a good argument to be made that what the federal government is doing, even though it may be constitutional exercise of its powers, (may be) an abuse of its powers.
"They are doing things that have never been done before, and they're doing things that at least half the people in the country don't like. You could argue that that's just not a good idea. When you do something for which you really don't have a consensus, people are going to fight back."
But University of Tulsa law professor Lyn Entzeroth said no argument gets around the Constitution's supremacy clause, which says that federal law trumps state law.
"Every government official is bound by the U.S. Constitution," said Entzeroth. "If there is a conflict between the U.S. Constitution and a state law, the U.S. Constitution is supreme."
Nullifiers argue the laws they oppose aren't constitutional. But state legislators don't get to make that decision. The courts do.
"The U.S. Supreme Court is the final word," said Entzeroth.
The three scholars agreed that interest in the Constitution and states' rights increases when the federal government takes the lead in times of social and political stress.
"There's been this long trend in American history of states believing they can defy, or individuals believing they can defy, the federal government," said Entzeroth. "You see this in the Civil War. We see this in the '50s and '60s when courts were ordering desegregation of public schools."
But states can sometimes defy the federal government and get away with it. And, their opposition can influence federal policy. Same-sex marriage and legalized marijuana are two recent examples, and resistance to gun laws and health-care reform also arguably have had an impact.
"When we had the Constitutional Convention in 1787, when we ratified the Constitution and the states joined, they agreed to give up some of their sovereignty to be part of the union," said Entzeroth. "But they didn't give up all sovereignty. The Constitution recognizes that states have sovereign interests and had a sovereign role to play. We have a system where we try to balance the role of both the state and the federal governments.
"Where that line is," she said, "folks can disagree on."
EXPERTS' SUGGESTED READING
"The Words We Live By: Your Annotated Guide to the Constitution," by Linda R. Monk
"America's Constitution: A Biography," by Akhil Reed Amar
"America's Unwritten Constitution: The Precedents and Principles We Live By," by Akhil Reed Amar
"Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court," by Jan Crawford Greenburg
"The Dynamic Constitution: An Introduction to American Constitutional Law," by Richard Fallon
"Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality," by Richard Kluger.
"Constitutional Law: Principles and Policies," by Edwin Chemerinsky
ARTICLE I, SECTION 8 (ENUMERATED POWERS)
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and Post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
ARTICLE VI (SUPREMACY CLAUSE)
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
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.
Original Print Headline: States' rights, federal power split by a line of contention
Randy Krehbiel 918-581-8365