Ending the Federal Usurpation of Powers Reserved to the States
by Donald Mellon - September 7, 2011
This article proposes giving the collective States, through an amendment to the Constitution, a veto power over Federal legislation. If vetoed it can be reconsidered and passed into law by a two thirds vote in both houses of Congress.
If you have thought about it, you are aware that States and the residents within have very little power compared to that of the Federal Government, but that was not always the case. “The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State Governments are numerous and indefinite.” Those words written by James Madison, the principle author of our Constitution, in January 1788 and published as part of the Federalist Paper Number 45 described the relative powers between the Governments as defined in the original Constitution drafted in 1787. He goes on to say “The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs concern the lives, liberties and properties of the people”. Who reading this paragraph believes those words describe the current relative powers between the Federal and State Governments?
The transition from the States being sovereign to being subjects happened slowly through many avenues, one of which can be traced by following the list of amendments to the Constitution. All of the following amendments have to some degree reduced the sovereignty or power of the States: XIV, XV, XVI, XVII, XIX, XXIV, and XXVI. The most significant amendments are XIV for it contains the equal protection of the laws clause that the Supreme Court has used repeatedly for rulings unfavorable to the States. XVI, which is one of the two most significant amendments for prior to this amendment the States had the sole authority to tax income and before passage they were larger and more powerful than the Federal Government. With this amendment the Federal Government also had that authority which allowed it to grow to a size and power that could not have been envisioned and it also greatly reduced the resources available to the States. The next amendment XVII ratified two months later in the progressive era of 1913 was the other of the two most negatively significant for the States. It called for the popular election of Senators rather than being appointed by the State Legislatures as called for in the Constitution. This ability to appoint the Senators was considered so important to maintaining States powers by the authors of the Constitution that they explicitly excluded Congress from passing any law changing this power of the States. (Article I Section 4) Even so this amendment was passed removing this capability and therefore the direct connection and influence between the State Legislatures and the actions of the Senate was terminated. XIX, XXIV, and XXVI are all voting rights laws. In the original Constitution the States determined the qualification for voting and had the power to appoint the electors that voted for the president and vice-president.
The States, of course, have been one of their own worst enemies for they ratified each of these encroachments upon their power. The other major enemy has been the Supreme Court. Searching the key words states rights' or similar phrases and one will find a list of cases showing how the courts have sided with the Congress by extending the interpretation of the commerce clause and the equal rights protection clause to approve almost anything passed into law. One recent case and one older case will make the argument for how the commerce clause can now be used to allow the Federal Government to control almost any action and perhaps inaction taken by a citizen of a State. Gonzalesv. Raich, in 2005, was a decision by the Supreme Court ruling that under the Commerce clause, the federal government could criminalize the production and use in the home of home-grown cannabis even when states approved its use for medicinal purposes. The other case Wickard v Filburn, in 1942 the Court ruled that federal regulations of wheat production could constitutionally be applied to wheat grown on a farm by a farmer to be fed to his farm animals. Compare these ruling to James Madison's words quoted above and repeated here, “The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs concern the lives, liberties and properties of the people.”
States have retained no ability given to them by the Constitution to influence the federal legislative process and therefore the only means available to protect against the further encroachment by the Federal Government into their powers is through the Courts after legislation is passed by Congress. But that process is critically hampered by the supremacy clause which essentially states that any law made by the Federal Government if constitutional shall be the supreme law of the land. (Article VI of the Constitution) Therefore States only recourse to thwart a further encroachment is to have the courts declare a law that diminishes their Constitutional powers as unconstitutional. But that is not a power controlled by the States, it is a process they must go through and given the performance of the judiciary it is very unreliable and could soon deteriorate much further.
However there is one power still in the Constitution that has not been amended away that can be used to prevent further usurpation of States power and possibly to correct past episodes, and that is by two thirds of the States calling for a Constitutional Convention to propose amendments to the Constitution. The idea of such a convention is being considered by liberals and conservatives alike but not for the purpose mentioned above. The approach being considered is to pass a balanced budget amendment and limitations on private money in elections and the like, none of which restore State's power to prevent usurpation of any remaining powers.
What kind of amendment is needed? One with text like “Any federal law or regulation can be nullified by a majority vote of the State Legislatures”. And “Any law or regulation so nullified shall be returned to the Federal Congress with objections for reconsideration. If after such reconsideration two thirds of the House and Senate agree to pass the bill or regulation it shall become law”. In other words we need to give a veto power in the Constitution to the collective State Legislatures as is now given to the President. This power was not necessary when the Constitution was drafted because safeguards were included to protect the State's sovereignty but as explained they are no longer present and a power of this magnitude is now required to return sovereignty to the States and their people and as a necessary consequence, preserve the orderly functions of our governments.
Nullification of federal law is not a new subject. Both Jefferson and Madison wrote barely a decade after the ratification of the Constitution that States had the power to nullify a law passed by Congress if they deemed it unconstitutional. Jefferson believed an individual State had such a power whereas Madison believed it required the collective action of the States. The Supreme Court got involved for the first time in 1809 when it rejected Pennsylvania’s claim that it could nullify a federal law. Every time a State has attempted to declare a federal law unconstitutional the Supreme Court has ruled that according to the Constitution, States do not have this power, only the Supreme Court does.
What is proposed builds on Madison's reasoning that States collectively have a power to protect themselves from intrusive federal laws. The proposal grants in the Constitution the power for the States to conclude, if a majority agrees, that a particular federal law should not be applied. It makes no statement about the law being unconstitutional, or attempts to change or modify it, or suggest it is not the supreme law of the land. It merely states that a power given to the States by this amendment has declared that this law should not be applied and gives the reasons why. Then the law is returned to Congress where it can be reinstated by a vote of a super majority in both houses. This process whereby the States can propose and pass a Constitutional amendment is not reviewable by the Federal Government, the President or any court but if it were, a court in an attempt to invalidate this amendment would have to rule that a portion of the Constitution was unconstitutional which would be an absurdity.
To this point the discussion has been about what could be done to restore a power to the States to influence federal law and prevent the further encroachment of authority by the Federal Government. The next question is should it be done? The Constitution gives the States through the Constitutional Convention process essentially unlimited power and the States could grant through an amendment the power to each individual State to nullify any federal law for any reason. But that would make a mockery of the Constitution for it would strip the federal Government of any authority. It is a certainty that if our country is to survive as a Union, the federal government must have sovereignty greater than that of the States. The proposal keeps this in mind for it does not diminish the sovereignty or the powers of the Congress or the President given to them in the Constitution it only adds a power to the collective States to “veto” legislation in the same manner as that given to the President.
The next question is would this power be used frivolously and tie up the nation's legislation process. Not likely for applying the power would take a passage of the resolution to null the law by at least 52 bodies, two in each State legislature. Further States would have to make accommodations to react quickly to any law they wanted to oppose since there would have to be a time limit in which they would have to act. Laws could not be held up for years while States legislatures were out of session so special sessions would have to be called or some other process established for timely votes in each State. These special processes are not likely to happen unless the law or regulation being considered was particularly odious to the States.
Once this amendment is in place, federal laws would once again be passed with an eye toward the expected reaction of the States. Input from the States might be considered to a greater extent and we might see laws passed with a built in delay so States could have a period to consider their actions prior to the law’s implementation. There might actually be cooperation between the legislative bodies in our country and any cooperation between the governments would greatly reduce the likelihood that this power would ever be exercised.
The Constitution of the United States is a legally binding contract between the Federal Government and the people. For compensation for the surrender of their sovereignty to their representatives, the people were told the Constitution would secure the blessings of liberty to themselves and their posterity (the preamble). Over time with no participation by the people, these liberties have been severely diminished. Their representatives in all branches of the Federal government and State Legislatures have violated this trust given to them by the people when they ratifying the Constitution. And now the people have had enough of this and are sounding the alarm. State Legislatures are taking notice that they must reverse this process and act to protect the people from any further encroachment upon their liberties and powers and restore those taken. The proposal in this article is one possible means and it should be considered and acted upon.
~ Donald Mellon
