President Barack Obama is expanding federal powers left and right, eyeing yet other enlargements and still more billions in spending, and it shouldn’t strike anyone as utterly senseless that Gov. Rick Perry of Texas should say enough, stop, quit it.
He did so by means of giving his support to a resolution affirming states rights and similar in spirit to resolutions that were written more than 200 years ago by Thomas Jefferson and James Madison and adopted by Kentucky and Virginia.
Those two founders were upset by the Alien and Sedition Acts enacted during the administration of President John Adams with the pretense of protecting America from her enemies but actually aiming to stifle criticism at home. Those laws just won’t wash, Jefferson and Madison said, explaining that they far exceeded the federal government’s powers as enumerated in the Constitution.
States, they said, had the right to void these laws, but most states themselves didn’t want to bother with anything that might threaten the union, and, in truth, they had a point. The most extreme assertion of states’ rights came with the secession of Southern states fearful of what might happen to the institution of slavery after the election of Abraham Lincoln, and what ensued, of course, was the Civil War.
Even after that awful, bloody conflict, the South used — the better word is "misused" — the legal principles of dual sovereignty and limitations on federal power to oppress blacks, thereby giving states rights a bad name. It does not follow, however, that we suddenly had a Constitution that told the federal government it was all powerful and could do anything it darned well wanted to do, no matter how inconsistent with liberty or the rule of law.
Just as the idea of states’ rights could be abused, it is an abuse of some of this nation’s highest, most important ideals to treat certain fundamentals portions of the Constitution as if they just weren’t there. Something very close to that has happened to the limits the document places on federal authority. The chief instruments used to rationalize the abuse have been the Commerce Clause, established to facilitate trade between the states, and the Necessary and Proper Clause, which said Congress may make laws needed to execute its stated powers.
Time and again the government has justified almost anything it does by saying, you know, this is somehow related to interstate commerce in some distant fashion or the other, especially since the New Deal. When the Supreme Court blocked a law that pretended to have something to do with commerce when it didn’t, President Franklin Roosevelt threatened to pack the court with a bunch of new justices, and, right away, the sitting justices pretty much said OK to whatever adventure he came up with.
So now we have a president who seems in some ways to be as ambitious as FDR was, and as constitutionally. And we have tea parties all over the union and states rights resolutions being brought up in places like New Hampshire and Texas, where Governor Perry is quoted as having said, "I believe that our federal government has become oppressive in its size, its intrusion into the lives of our citizens and its interference with the affairs of our state."
Citing the 10th Amendment, which says powers not delegated to the United States by the Constitution are reserved to the states and the people, the governor is looking for repeal or prohibition of laws that have gone too far. His stance and the resolution are rhetorically useful, I think, but what I’d like to see is for the Supreme Court once more to start edging toward more states rights in varied cases as it was doing under Chief Justice William Rehnquist for a period, an approach that seems to me both plausible and prudent as well as badly needed.
(Jay Ambrose, formerly Washington director of editorial policy for Scripps Howard newspapers and the editor of dailies in El Paso, Texas, and Denver, is a columnist living in Colorado. He can be reached at SpeaktoJay(at)aol.com.)