Published May 26, 2009
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.
-- U.S. Constitution, Tenth Amendment
Fed up with Washington's involvement in everything from land use to gun control to education spending, states across the country are fighting back against what they say is the federal government's growing intrusion on their rights.
At least 35 states have introduced legislation this year asserting their power under the Tenth Amendment to regulate all matters not specifically delegated to the federal government by the Constitution.
"This has been boiling for years, and it's finally come to a head," said Utah State Rep. Carl Wimmer. "With TARP and No Child Left Behind, these things that continue to give the federal government more authority, our rights as states and individuals are being turned on their head."
The power struggle between the states and Washington has cropped up periodically ever since the country was founded. But now some states are sending a simple, forceful message:
The government has gone too far. Enough is enough.
Montana Gov. Brian Schweitzer recently signed into law a bill authorizing the state's gun manufacturers to produce "Made in Montana" firearms, without seeking licensing from the federal Bureau of Alcohol, Tobacco, Firearms and Explosives. Similar laws are being considered in Utah, Alaska, Texas and Tennessee.
The Montana law is expected to end up in the courts, where states' rights activists hope judges will uphold their constitutional right to regulate firearms.
That would reverse a longstanding trend, said Martin Flaherty, a professor of constitutional law at Fordham Law School.
"From 1937 to 1995 there is not one instance of the Supreme Court knocking back Congress," he said. "In the Constitution the interstate commerce clause gives Congress the right to regulate commerce between the states. That gives them a lot of power. There were questions of how far they can reach, but then comes the New Deal, and Roosevelt gets all these picks on the [Supreme] Court, and they come upon a theory whereupon congressional power is almost infinite."
That 1930s understanding of the Constitution is now the norm, with advocates for the federal government arguing that issues of a certain size and scope can be addressed only by an institution with the resources of the federal government.
As an example, federal authority is necessary in the economic crisis, said U.S. Rep. Dan Boren, whose home state of Oklahoma recently passed a sovereignty resolution.
"The economic situation in our nation over the past year has not been contained in any one community or state. The industries and institutions affected by the recent economic crisis touch multiple layers of our economy and are not confined to any one state or region," he said in a statement. "I feel there was Constitutional justification for Congress's recent efforts to stabilize our economy."
But for many state leaders, the degree to which Congress regulates issues within their boundaries, using the interstate commerce clause to regulate just about everything and anything, has become untenable.
Texas Gov. Rick Perry made headlines recently when he made a passing reference to the possibility of the Lone Star State seceding from the U.S., saying, "if Washington continues to thumb their nose at the American people, you know, who knows what might come out of that?"
States rights advocates offer countless examples of what they believe is Washington's overreach.
In Utah, 67 percent of the state's land is controlled by the federal government through wilderness preserves, limiting state leaders in their bid to fill government coffers through oil and natural gas drilling after Interior Secretary Ken Salazar cancelled 103,000 acres of leases this year.
In Idaho, ranchers are furious that federal endangered species law prevents them from shooting the wolves that prey on their cattle.
"The balance of power between the states and the federal government is way out of whack," said Georgia state Senator Chip Pearson." The effect here is incalculable. Everything you do from the moment you wake up until you get to bed, there is some federal law or restriction."
Up until recently, the state sovereignty movement has remained almost entirely Republican, drawing supporters from the ranks that voted against President Obama and attended tea parties last month to protest federal tax hikes.
But the movement's rank and file are just as likely now to criticize Obama's predecessor, George W. Bush, as they are the new president, pointing to what they believe were Bush's overreaching policies on education and homeland security.
Many are becoming frequent visitors to a Web site, TenthAmendmentCenter.com, which was founded in early 2007 and has become a community bulletin board for states rights activists and politicians. Up to 20,000 viewers log on to the site every day.
The site's founder, Michael Boldin, a 36-year-old Web marketer in Los Angeles who says he has no political affiliation, says he decided to launch the site after watching the Maine State Legislature fight the Department of Homeland Security on the Real ID act, a controversial Bush-era law that will require states to issue federally regulated identification cards, complete with biometric data and stringent address checks.
"Maine resisted, and the government backed off, and soon all these other states were doing the same thing," Boldin said. "The bottom line is, if there's widespread support, people can resist the federal government at the state level."
The deadline for states to comply with Real ID has now been pushed back until 2011.
The Tenth Amendment movement is not without controversy. In Georgia, a columnist for The Atlanta Journal Constitution called a sovereignty resolution in the state Senate a threat "to secede from and even disband the United States."
The resolution, which was passed as part of a group of bills that were banded together, affirmed the state's powers under the Tenth Amendment, taking its inspiration and language from Thomas Jefferson's 1798 resolution opposing the Alien and Sedition Acts -- laws enacted by the federal government during wartime to quiet protest against the government.
The resolution asserts that any instance of the federal government taking action beyond its enumerated powers "shall constitute a nullification of the Constitution for the United States of America by the government of the United States of America."
"It's been taken out of context by some editors," said Pearson, who sponsored the bill. "It certainly never meant secession. The intent was to communicate that the actions of the federal government are an infringement on states' rights."
Robert Natelson, a law professor at the University of Montana who was involved in drawing up that state's sovereignty resolution over a decade ago, argues that states up until now have been unwilling to take action of any real consequence in checking federal power.
"Back then they passed the resolution, but they didn't turn down any federal dollars," he said.
"If the states are serious about returning the federal government to its historical origins, they're going to have to do more than pass resolutions. They're going to have to turn down money and litigate."