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What do you know about States' rights? Did you know ALEC has proposed a resolution in support of States' rights? Where does the concept come from? What does it mean exactly?  

"States' rights" is shorthand for the provisions of the Tenth Amendment to the U.S. Constitution:

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.

Those who advocate States' rights would actually undo the U.S. Constitution and return us to governance under the Articles of Confederation.  If you're like me, that's too much history to remember all at once.

Under the Articles of Confederation, the federal government was responsible for treaties and defense but had no power to enforce state compliance. The framers of the U.S. Constitution sought to form a stronger federal government, but opponents argued that the new constitution gave too much power to the federal government. After much debate the States' rights advocates lost this battle and the Articles of Confederation were replaced by the U.S. Constitution in 1789.

The take-away from the previous paragraph is that the opponents to the U.S. Constitution lost their battle for State sovereignty over 200 years ago! The fact that they lost, however, did not mean the war was over and our federal form of government has been repeatedly challenged. The first attack was in 1861 when southern States seceded from the union over the issue of slavery, and it took a civil war to restore our federal government. In 1865, the southern States attempted to usurp federalism by electing representatives to obstruct post Civil War reconstruction (and this wasn't rectified until the Civil Rights Act of 1964). More recently (1994) the "Contract With America" tried to inflate the power of the States by shrinking the federal government "down to the size where we can drown it in the bathtub" (quoting Grover Norquist).  

Now ALEC has proposed a resolution reaffirming rewriting the Tenth Amendment in an attempt to return us to the good-old-days under the Articles of Confederation. For an analysis of that resolution, follow me below the fleur-de-Kos.

ALEC on Democracy: Tenth Amendment Rights


ALEC's Model Bill 4B3A - Resolution Reaffirming Tenth Amendment Rights was adopted by ALEC's Federal Relations Working Group (co-chaired in 2011 by Reynolds – the tobacco company) on 8/5/2010 and approved by the ALEC Board of Directors on 9/19/2010. This model bill is newer than the ALEC Voter ID Act (see ALEC Takes Aim at Voters) and not as widely known, but bears watching in Republican-run state legislatures sworn in after the 2010 elections.

ALEC's model bill repeatedly mischaracterizes the Tenth Amendment and then resolves to reclaim State sovereignty and to demand application of the "original intent" of the U.S. Constitution. These four sections of the model bill deserve particular attention:

WHEREAS, the Tenth Amendment limits the scope of federal power and prescribes that the federal government was created by the states specifically to be an agent of the states, rather than the states being agents of the federal government.

This section essentially rewrites the Tenth Amendment (compare to block text above).

First of all, the Tenth Amendment does not limit the scope of federal power. All federal powers are designated within the Constitution itself (along with subsequent amendments and interpretations). The Tenth Amendment only asserts that remaining/residual rights are reserved to the States. For example, with transportation policy the federal government makes decisions about national transportation systems such as air traffic, the interstate system, and Amtrak, but it delegates to the individual States the authority to make decisions regarding vehicle registration, road maintenance, and mass transit.  

Secondly, the U.S. Constitution was not created by the States it was created by We The People. State ratification of the Constitution was merely a mechanism to exercise the will of the people in the individual States.

ALEC's rewrite of the Tenth Amendment essentially turns the U.S. Constitution on its head and returns us to the demonstrably flawed Articles of Confederation wherein the federal government truly was an agent of the States. Again, not to put too fine a point on it, but this battle for State sovereignty was lost over 200 years ago!

WHEREAS, many federal mandates are in direct violation of the Tenth Amendment to the Constitution of the United States and infringe upon both the reserved powers of [the State] and the people's reserved powers.

“Federal mandates” is a loaded and pejorative phrase that usually boils down to States proclaiming "you can't tell me what to do!" This attitude is what created the need for the U.S. Constitution in the first place. Under the Articles of Confederation, the Congress was providing international services (treaties and defense) on behalf of the States, but the States refused to comply with the treaties or to pay for the cost of defense.

In modern times, block grants are particularly contentious. While States are eager to accept the federal funds allocated for education, healthcare, transportation, and housing, they object to any conditions imposed on acceptance of those funds (such as how those funds are to be used or the need for matching funds from the State).

In any case, federal mandates do not infringe upon States' rights but do constrain States from enacting legislation harmful to federal policies and to rights of individuals within the States.

NOW THEREFORE BE IT RESOLVED that [the State] hereby claims sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States.

Again ALEC mischaracterizes the Tenth Amendment. While the U.S. Constitution provides that each State shall have a representative form of government, it never provided for the “sovereignty” of individual States (by definition a “sovereign state” is one which is not dependent upon, or part of, another sovereign entity).  

While States' rights advocates are quick to claim State sovereignty, they are not so quick to respect the sovereignty of other States (see for example H.R.822: National Right-to-Carry Reciprocity Act which would require all States to enforce firearms laws enacted by any other State). Interestingly, in 1787 Alexander Hamilton specifically foresaw efforts like this one where a State seeks to impose its will on the other States and he believed we needed a federal government to keep that from happening (see Federalist #9).

BE IT FURTHER RESOLVED that we state our intentions to ensure that all government agencies and their agents and employees operating within the geographic boundaries of [the State], or whose actions have an effect on the inhabitants, lands, or water of [the State], shall operate within the confines of the original intent of the Constitution of the United States.

While drafting the U.S. Constitution, the framers presumed the continued existence of the States, respecting their individuality and boundaries. But the framers also recognized that the federal government may need to intervene in instances where "the separate States are incompetent" or where State laws interrupt the "harmony of the United States" (see The Virginia Plan, #6).

The Constitution has grown in scope over time (as intended) due both to changing circumstances and to Supreme Court interpretations. With this resolution ALEC once again attempts to roll back the clock to another time ... a time when only white male landowners were allowed to participate in governance ... no freedom from slavery ... no equality on the basis of race, gender, religion, or national origin ... no protection of voting rights ... and no provision for protection of natural resources.

The naked truth: ALEC passed a resolution purporting to "reaffirm" the Tenth Amendment but which, in reality, is a thinly veiled attempt to overturn the U.S. Constitution and return us to a confederacy where States reign supreme. If your State proposes legislation "reaffirming" Tenth Amendment rights, be suspicious of legislators operating under the influence ... of ALEC.  

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“ALEC on Democracy” is a series of diaries discussing the model bills approved by the "Federal Relations" committee of the American Legislative Exchange Council (ALEC). Previous diaries include The Smart ALEC Strategy and ALEC Takes Aim at Voters.
~~~~~~~~~~~~~~~~~~~~~~~~~~  

Originally posted to FeltzNook on Thu Jan 26, 2012 at 10:36 AM PST.

Also republished by American Legislative Transparency Project, New Diarists, and Community Spotlight.

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