Tag: States Rights

The Next Case Pro-lifers Must Overturn: South Dakota v. Dole


Dobbs is an enormous victory for both the pro-life and the federalist movements. The right to regulate abortion has been returned to the states in about as unequivocal language as possible. Even if opponents of the decision had the votes to pass a national abortion rights law, it would fail a Constitutional challenge. But there is a completely constitutional lever by which Congress could nominally respect the decision but still force abortion legalization throughout the country. That lever is a little-known case called South Dakota v. Dole.

(I should note that I worried about writing this post at all, for fear of informing our opponents about a powerful tool in their inventory that they probably don’t realize they have.)

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The fifty United States of America are not “united” on the basis of unconditional fealty to even a wholly legitimate federal government, to say nothing of a one third illegitimate one. The Constitution and its Amendments were written and ratified to protect the states and, ultimately, we, the citizens, from governmental violation of our inalienable […]

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On this special guest episode of the Resistance Library Podcast Sam Jacobs invites Michael Maharrey from the Tenth Amendment Center to discuss the rights of states. Michael Maharrey is the Communications Director of the Tenth Amendment Center, a group dedicated to preserving the rights of states to nullify unjust and overreaching federal laws. We discuss […]

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January 20, 2032 Welcome to the Queendom of Waregorniaii. We are the biggest Parliamentary Monarchy in the world. Good King Harry Windsor has now been crowned, and Queen Meghan has never been happier. Our capital city, Anaheim, is even more joyful than before. The new Royal Palace, formerly Sleeping Beauty’s Castle, looked as magnificent as […]

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I have seen a number of conversations where, eventually, the 17th Amendment is proclaimed to be the end of States’ Rights and the root of all evil. I’ve often wondered about that, as it seems to be a bit contrary to the history I used to think I knew.  My understanding was that the primary […]

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Winning the War on Guns


Gun owners are winning the war on guns. There is no Federal Assault Weapons Ban in place anymore and there is no reasonable chance one will return anytime soon. Concealed carry (in some form or another) is, in theory, the law of the land in all 50 states. Things are calming down on the legislative front and some of my friends in the gun industry talk about how they look forward to the market getting back to “normal” after the panic-buying of guns and ammo during the Obama administration.

But what is normal? “Normal” certainly wasn’t the time before the Assault Weapons Ban, when “Gun Culture 2.0” was just an idea and “shall issue” concealed carry was the exception, not the rule. For over 20 years, the gun owners of America have either been dealing with the effects of an Assault Weapons Ban, feeling an urgent need to buy guns in fear of another ban being enacted in the near future, and their ability to carry a gun for self-defense was outright banned in a large number of states. Today’s environment for gun owners isn’t “normal,” it’s unlike anything we’ve seen since the Sullivan Act was first passed.

On a national scale, over the last few years, the NRA and other organizations have done an admirable job of defending our natural right to defend ourselves. In the wake of the horror at Sandy Hook, the forces of gun control made a full-court press to re-enact an “assault weapons ban” on a national level, and it failed spectacularly. A bill to validate a concealed carry licenses across state lines has passed in the House, and while its future in the Senate is a little iffy, we’ve started the process of having concealed carry licenses act just like marriage licenses and driver’s licenses do.

The Right Response to Obergefell: Jurisdiction Stripping


The other day on the main podcast (episode 265 for those playing along at home), I argued in favor of what I consider to be the most realistic strategy to undo the damage wrought by Obergefell v. Hodges; namely, jurisdiction-stripping legislation.  The proposal generated a fair amount of interest among the Ricochetti, and now I have expanded on the idea over at National Review.

I encourage you to read the whole thing, but here’s the basic idea.  Congress should abolish the jurisdiction of the Supreme Court — and all federal courts — over cases involving state laws defining marriage.  The result would be that states would immediately be free to reinstate laws defining marriage in the traditional manner, if they so wish.  Same-sex marriage advocates would be free to challenge those laws, but they would do so in state court, and the final judicial decision would rest with the Supreme Court of each state.

Can Congress do that? Yes. Under Article III of the Constitution, the appellate jurisdiction of federal courts (including the Supreme Court) is entirely subject to congressional regulation.  In fact, the very existence of every federal court (except the Supreme Court) is a matter of congressional discretion. Over the years, Congress has expanded and contracted federal appellate jurisdiction in various ways.

Voters: Let States Go Their Own Way


shutterstock_187308782It never ceases to amaze me that advocacy for states’ rights — and suspicion of federal power — is portrayed as the viewpoint of the lunatic fringe. In fact, it is the view of mainstream America. The latest summary from Rasmussen:

A new Rasmussen Reports national telephone survey finds that 33% of Likely U.S. Voters now believe that states should have the right to ignore federal court rulings if their elected officials agree with them. That’s up nine points from 24% when we first asked this question in February. Just over half (52%) disagree, down from 58% in the earlier survey. Fifteen percent (15%) are undecided. (To see survey question wording, click here.)

Other highlights include:

Celebrating “Free and Independent States” this 4th of July


flnCL7II’m sure that many of you, like me, will be dusting off your copies of the Declaration of Independence to commemorate the 4th of July. The question is: will you read the whole thing or just the opening paragraphs?

Everyone likes to quote the invocation of the rights of “life, liberty, and the pursuit of happiness” but — for my money — that’s not the part that we most need to remember. Rather, the most important passage of the Declaration comes at the end when the Continental Congress describes the United States as a group of “Free and Independent States.” The key word here is the plural states. July 4th is America’s birthday, but America was born as a union of sovereign states, not a single consolidated nation. Our leaders often gloss over this basic historical fact; President Obama, for example, has stated that our Founders “declared a new nation” on July 4th.

In fact, nobody in 1776 thought that the United States was a single nation; the Declaration’s lead author, Thomas Jefferson, consistently described the U.S. as a “compact” among states. The Paris Peace Treaty, which formally ended the Revolutionary War, does not grant freedom to “the United States.” Rather, in language that mirrors the Declaration, it recognizes each individual state to be “free, sovereign and independent.” The American negotiators in Paris could not, for example, commit to pay compensation to British loyalists whose property was confiscated during the war but could only promise to “earnestly recommend” that each state pay such compensation. The American union at that time was governed by the Articles of Confederation, which described the United States as a “firm league of friendship.”

Rehabilitating States’ Rights


BN Less PerfectI wanted to give you all a quick preview of my new book, coming out tomorrow. It’s called “A Less Perfect Union: The Case for States’ Rights.”

I know, I know: “states’ rights” is one of those taboo phrases in today’s politics. If you ask Americans about states’ rights, the reaction you get is typically negative — slavery, Jim Crow, and segregation. And yet, Americans happily embrace notions that are intimately related to states’ rights, such as federalism, community-based politics, responsive politics, home rule, local control, and “think globally, act locally.” In poll after poll, Americans trust their state and local governments far more than they trust Washington.

Why the disconnect? Over the past few decades, especially since the civil rights movement, states’ rights has been portrayed as a smokescreen for racist repression. It is a convenient way to demonize “small government” conservatives and tar them with the brush of segregation.

The Truth About States’ Rights


As the 2016 presidential campaign gets underway, we can expect the usual savage critique of any conservative who dares to advocate states’ rights, as Rick Perry tried to do in the last cycle. The unspoken premise of such attacks is that “states’ rights” is a philosophy born in the antebellum South to defend slavery. Ergo, anyone who supports states’ rights today must be a closet racist.

A 2013 New York Times op-ed by Michael C. Dawson, for example, declared that “since the nation’s founding, ‘states’ rights’ has been a rallying cry for those who wished to systematically disenfranchise and exploit large segments of their population.”

Would You Vote For Independence For Your State?


Yesterday, Peter asked how we all would vote on independence for Scotland, but I have a question for you: if you could be certain it wouldn’t cause a war, would you vote for independence for your state?

Now, I realize that the question is very different from Peter’s — Scotland having a very long and very different history from England, different people, different language, different culture — but I think it’s still relevant.

Where the Right is Wrong — Salvatore Padula


Like Friedrich Hayek, I am a man of the Right. Though I do not adhere down the line to the contemporary orthodoxy of the Right, I firmly believe that personal liberty and personal responsibility are the cornerstones of both human fulfilment and a healthy society. I am utterly convinced that for our society to remain strong it is imperative that conservative and libertarian policy be implemented. In order for this to happen, it is necessary for those of us on the Right to win the argument and sway public opinion. Happily, this appears to be happening, both because of the inherent merits of our positions and because of the manifest failures of progressive statism.
While I am optimistic about the prospects of the American Right and I am heartened by the increasing effectiveness of our persuasive efforts, I believe that there are always areas for improvement. Specifically, I frequently encounter arguments put forward by some on the Right that are counterproductive in persuading the unconvinced — as well positions held by segments of the Right that are simply incorrect. To that end, I have compiled a list (not meant to be comprehensive) of arguments and opinions which those who desire the implementation of good policy may want to reconsider, or at least raise more sparingly.
Tax Cuts Pay for Themselves
This is a common argument put forward by many on the Right and it is not without merit. Some tax cuts do, in fact, pay for themselves. It is not, however, always (or even usually) the case. While it is absolutely true that punitively high income and capital gains tax rates disincentivize economic activity and slow economic growth, it is not necessarily true that losses in revenue will be made up by the overall increase in the size of the economy.
Whether or not that is the case is primarily a function of the applicable multiplier. Macroeconomics is far from a science and predicting what a particular multiplier will be is largely a theoretical crap shoot (as evidenced by the failure of the 2009 Stimulus, which assumed a much higher Keynesian multiplier than that which actually occurred). It is common on the Right to invoke the Laffer Curve to support the notion that cutting taxes will increase revenue. Laffer was certainly on to something and the Laffer Curve does apply under certain circumstances, but these circumstances occur when marginal tax rates are exorbitantly high. There is strong evidence to support Laffer at marginal rates of 60% and higher. The evidence for lower rates (including our current top rates) is much more equivocal.
I am not saying that we should abandon calls for lower taxes. We should, however, be circumspect about this particular claim.
More Guns, Less Crime
I like guns. I own several. I believe the Second Amendment recognizes an individual’s right to keep and bear arms. I find many claims advanced by those opposed to guns to be risible, particularly concerning assault rifles. That said, I think that gun advocates often make arguments which have the effect of shooting themselves in the foot.
While my title for this topic alludes to John Lott’s book of the same name, I’m less opposed to general claims about the effect of gun ownership and carrying on crime reduction (though the data cited to support such claims are far from compelling) than I am on individual instances where increased firearm distribution is suggested as a solution to a problem. For example, after the Sandy Hook massacre it was common to hear gun advocates call for arming elementary school teachers. This response is just as disproportionate and ineffective as were calls from the left to ban assault rifles and large capacity magazines. What’s worse, they overshadowed the sensible calls to reform our mental health system and allowed an unsympathetic media to caricature supporters of gun rights as quacks in the mold of Alex Jones. Similarly, when we object to sensible policies, such as prohibitions on carrying weapons in bars, we do much to discredit ourselves with the mass of our fellow citizens who think that alcohol and firearms are a bad combination.
Supporters of gun rights would also do well to admit that guns make certain crimes more likely. Mass killings are certainly more likely due to firearms. It’s difficult to have a mass stabbing, for example. (Though there apparently was one in in China recently, there were a large number of perpetrators and the casualties were relatively few when compared to something like the massacre perpetrated by assault rifle-armed Anders Brevik in Norway a few years ago.), and physical altercations involving firearms more easily escalate into fatalities. Conceding these fairly obvious truths doesn’t weaken our case (since nobody takes the denials seriously) and it allows us to make the reasonable argument that, given the facts that guns exist and that criminals will possess them, prohibiting legal gun ownership deprives law abiding citizens of their right to self-defense.
State Nullification and Secession
Much to my dismay, both nullification and secession seem to be increasing in popularity among segments of the Right. I’m not going to dwell upon why this poses a problem for the Right in terms of public perception. I think the reasons are self-evident. What I would like to address is why both nullification and secession are unconstitutional.
I will start with noting the social contractarian basis of our Constitution. The United States Constitution begins with “We the People of the United States.” It is not an agreement between the states; it is a compact between the people. While it is true that sovereignty under the Constitution is divided between the federal and state governments, federal sovereignty is not derived from the states, but from the people. Because our Constitution is a compact between the people of all the states, it is not within the power of individual states to unilaterally secede. While there is a natural right to revolt against an oppressive or tyrannical regime, that right is possessed by the people, not the states, and is, in any event, extraconstitutional.
Beyond that basic principle, nullification is squarely contradicted by the Supremacy Clause (Article VI, Clause 2 of the Constitution, which states that federal law is the supreme law of the land and overrides state statutory and constitutional law) and Article III, Section 2, which grants the federal courts jurisdiction over, amongst other things, cases arising under the Constitution and the laws of the United States.
The Federalist Papers also contradict the legitimacy of state nullification. Federalist No. 33 declares federal laws supreme to state laws. No. 39 explains that, under the Constitution, conflicts over jurisdiction between state and federal power are to be resolved by the federal courts. No. 44 discusses the role of the states in checking federal overreach, specifically stating that the election of new representatives is the recourse available to states. It does not mention nullification. No. 78 states that federal courts have the power to void legislative acts that are contrary to the Constitution. It does not grant a similar power to the states. No. 80 specifically denies that states have the power to invalidate federal law.
We Should Return to the Gold Standard
I deplore out-of-control spending and the profligate printing of money. Inflation is a terrible thing. I’m very critical of the policies of the Federal Reserve. That said, I think that a return to gold-backed currency is a terrible idea and is frequently advocated by people who don’t really understand what they are talking about. (Note: many advocates of the gold standard are highly informed. If you are one of them, much of what I have to say here is not directed toward you. I still think you’re mistaken though.)
There are undoubtedly good arguments in favor of having a gold-backed currency. They include long-term price stability, reduced risk of significant inflation, and the near impossibility of hyperinflation. Gold standards also make it more difficult for a government to engage in sustained deficit spending. More debatable is the assertion that a gold-backed currency has objective value in contrast to the ephemeral nature of fiat currency.
On to why the gold standard is a bad idea. First, despite claims to the contrary, gold has very little objective value. Gold certainly has industrial applications and people think it’s pretty, but there really is no such thing as objective worth. Something is only worth as much as someone is willing to pay for it. In any case, if you are looking for a stable store of objective value linking your currency to any single commodity (gold included) is inferior to a basket of goods. Second, while excessive inflation can be a serious problem, deflation is often disastrous. Fixing the money supply to gold reduces the risk of inflation at the cost of increasing the risk of deflation. As a general matter, moderate inflation (around 2%) is widely considered by economists to be desirable. Third, while a gold standard usually leads to long-term price stability, it is prone to short-term extreme volatility as the value of money is dependent upon the supply of gold.  
In any case, fiat currency is often unfairly maligned. A well-managed and politically independent central bank should have no problem responsibly managing the currency in a way that encourages growth and avoids inflation. While it is true that the Fed has pursued a dangerous policy of quantitative easing (though I’m slightly less concerned than are many about the prospects of mass inflation, I think it a real danger), this is not an inherent weakness of fiat currency. It is a consequence of the politically imposed dual mandate under which the Federal Reserve is tasked with limiting inflation and maximizing employment. These are often contradictory aims and the proper role of a central bank should be limited to curbing inflation.
Representative Peter King
The man is an ass.
Anyway, these are a few areas where I think the Right should reconsider. I’d love to know what you think and if you have anything you’d like to add to the list.