Rediscovering Federalism?

There is an interesting article in the New York Times this morning detailing the apparent trend of states (re)asserting their sovereignty under the Tenth Amendment - presumably in reaction to the increasingly overbearing and out of control federal government.

As the Times reports:

Gov. Mike Rounds of South Dakota, a Republican, signed a bill into law on Friday declaring that the federal regulation of firearms is invalid if a weapon is made and used in South Dakota.

On Thursday, Wyoming’s governor, Dave Freudenthal, a Democrat, signed a similar bill for that state. The same day, Oklahoma’s House of Representatives approved a resolution that Oklahomans should be able to vote on a state constitutional amendment allowing them to opt out of the federal health care overhaul.

In Utah, lawmakers embraced states’ rights with a vengeance in the final days of the legislative session last week. One measure said Congress and the federal government could not carry out health care reform, not in Utah anyway, without approval of the Legislature. Another bill declared state authority to take federal lands under the eminent domain process. A resolution asserted the “inviolable sovereignty of the State of Utah under the Tenth Amendment to the Constitution.”

The Times is quick to point out that they don't yet know whether to call this "a movement, a backlash or political theater." And at any rate, "[s]ome legal scholars" think this is a case of "more smoke than fire." But whatever it is, the Times concludes, "for lawmakers, just taking a stand can be important enough."

None of this is surprising, in light of a recent CNN poll revealing that "[a] majority of Americans think the federal government poses a threat to rights of Americans."

Something tells me the Democrat-controlled Congress, Obama "The Great", Pelosi, et al, could truly care less what the pesky American people think about anything - especially since they persist in their attempt to shoehorn an unpopular healthcare bill through a heavily divided Congress. All of this, of course, so The Messiah can appear to be an effective leader, as opposed to the second rate, Carteresque, one-term President he seems destined to become (in my humble opinion).

With their large majorities in both chambers of Congress, and a supposedly transcendent, "above the fray" President, one would think a bill this obviously superior to even the Constitution itself would have flown through the legislature to be signed by the Nobel-For-Nothing, Saint-In-Waiting Obama. At the very least, one would think it wouldn't take over a year to accomplish, thus relegating Year One of The Great One's Presidency to a complete waste of time and resources in pursuit of an obsession divorced from the dire economic realities facing the country.

But hey, as Rahm said, "Never allow a crisis to go to waste."

Well, it turns out that The Messiah is such a good leader that not only does he have to bribe, cajole, and threaten members of his own party to grant him his healthcare obsession, but it has to be accomplished through constitutionally questionable means.

In fact, Congress may be "poised to use an arcane parliamentary process to get it done." Under the procedure, dubbed the "Slaughter Solution," "a Senate-passed health bill would be 'deemed' to have passed if House members voted in favor of a rule governing a separate bill with amendments to it."

Now that's what I call "leadership." So much for the transparency we were promised during the campaign. Oh well, we just don't know what's good for us.

Anyway, getting back to the Times article, I have to say I was pleasantly surprised to find that the article quotes Thomas E. Woods Jr., a senior fellow at the Ludwig von Mises Institute. For the journalistic home of that hyper-Keynesian Paul Krugman to cite anyone associated with the Austrian perspective is a truly evolutionary intellectual leap that should be commended. So Kudos, Times.

Yet when I first read the following passage, I was ready to pounce on the implication that the Supremacy Clause would invalidate any state law that conflicted with a federal law, seemingly ignoring the fact that federal power under the Constitution is limited to only those powers enumerated in Article I, Section 8:

Article 6 of the Constitution says federal authority outranks state authority, and on that bedrock of federalist principle rests centuries of back and forth that states have mostly lost, notably the desegregation of schools in the 1950s and ’60s.

“Article 6 says that that federal law is supreme and that if there’s a conflict, federal law prevails,” said Prof. Ruthann Robson, who teaches constitutional law at the City University of New York School of Law. “It’s pretty difficult to imagine a way in which a state could prevail on many of these.”

Luckily, the article's next passage does at least hint that such limiting powers do in fact exist, stating that "while some efforts do seem headed for a direct conflict with federal laws or the Constitution, others are premised on the idea that federal courts have misinterpreted the Constitution in the federal government’s favor." (Emphasis added) (For a good book detailing some of the most glaring examples of judicial misinterpretation in favor of increased federal power, I highly recommend The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, by Robert Levy and William Mellor)

How all of this will play out in the coming months is unclear. But what is clear (at least to me) is the fact that something is brewing out there. Something tangible, and not easily mollified by the usual inane political talking points - and such empty references to "liberty," "freedom," and "let's cut spending." In this atmosphere, talk gets you nowhere. It's all about the follow-through.

So politicians beware: We are watching what you do, even if your words signal otherwise. And if that means we have to rediscover what federalism means, so be it. The tree of liberty is badly in need of nourishment.

To Sign Or Not To Sign?

On January 15, 2010, the Supreme Court agreed to hear an appeal of a case involving the confidentiality of the identities of voters who sign petitions in support of placing measures on election ballots.

The case, Doe No. 1, et al., v. Reed, et al. (09-559), involves gay rights opponents who claim that "publicity about their political activity has led to threats and even some violence against them." As explained by SCOTUSblog:

The new case involves an effort to bring out in public the identities of individuals in Washington State who signed petitions to put on the state election ballot a referendum that would overturn a new state law extending the benefits of marriage (but not marriage itself) to couples registered as “domestic partners.” (That referendum failed, and the law remains in effect; voters approved the new law by a 53-47 percent margin last November.)

In taking the Washington case to the Court, the petition-signers’ lawyer said the confidentiality issue “is arising with great frequency across the country as changes in technology have made it possible for individuals and groups seeking to prevent public debate from occurring to obtain the names and contact information of petition signers and post that information online to encourage harassment and intimidation.” One group, the filing said, has posted on its web site information about gay marriage petition-signers in Arkansas, Florida, Massachusetts and Oregon.

The outcome of the case could affect publicity about petition-signers in the 27 states that have either an initiative or a referendum option for voters, or both. The core constitutional issues in the case are whether signing a ballot measure petition is a form of political speech, whether, if it is protected by the First Amendment, it includes a right to sign without official public disclosure, what standard is to be applied when judging regulation of such a First Amendment right, and what government interest supports disclosure rather than confidentiality for signers’ identities.

The Electronic Privacy Information Center (EPIC) and the Cato Institute have both filed Amicus briefs in support of the petition signers (see here and here).

Whether one is for or against gay rights, I think that EPIC best captures the issue at hand:

Courts have ... recognized that in some areas, a fundamental right to privacy is a necessary safeguard against the consequences of the disclosure of personal information. In few areas can this be more compelling than the expression of support for causes that may be controversial, unpopular, or simply abhorrent.

UPDATE on SCOTUS

Well, it's looking more likely that the Court is not amenable to using the Privileges or Immunities Clause to incorporate the Second Amendment against the States. Incorporation does appear to be on the verge, though, rather through the usual Due Process route.

Posted by Lyle Denniston at SCOTUSBLOG:

The Supreme Court on Tuesday seemed poised to require state and local governments to obey the Second Amendment guarantee of a personal right to a gun, but with perhaps considerable authority to regulate that right. The dominant sentiment on the Court was to extend the Amendment beyond the federal level, based on the 14th Amendment’s guarantee of “due process,” since doing so through another part of the 14th Amendment would raise too many questions about what other rights might emerge.

...

The first argument to collapse as the hearing unfolded was the plea by the lawyer for gun rights advocates, Alan Gura of Alexandria, VA, that the Court should “incorporate” the Second Amendment into the 14th Amendment through the “privileges or immunities” clause. In the first comment from the bench after Gura had barely opened, Chief Justice John G. Roberts, Jr., noted that the Court had essentially scuttled that argument with its ruling in the SlaughterHouse Cases in 1873. And within a few minutes, Justice Antonin Scalia — the author of the Heller opinion and the Court’s most fervent gun enthusiast — was sarcastically dismissing the “privileges or immunities” argument.

“Why,” Scalia asked Gura, “are you asking us to overrule 140 years of prior law….unless you are bucking for a place on some law school faculty.” The Justice said the “privileges or immunities” argument was “the darling of the professorate” but wondered why Gura would “undertake that burden.” And Scalia noted that the “due process” clause — an open-ended provision that he has strongly attacked on other occasions– was available as the vehicle for incorporation, and added: “Even I have acquisced in that.” Gura somewhat meekly said “we would be extremely happy:” if the Court used the “due process” clause to extend the Second Amendment’s reach.

Hey, it was a good try. Incorporation through Due Process is fine by me (notwithstanding my previous concerns).

Big Day at SCOTUS

The Supreme Court will hear oral arguments today in McDonald vs. City of Chicago, the case challenging Chicago's nearly 30 year ban on the possession of handguns within city limits. McDonald was filed shortly after the Court decided District of Columbia vs. Heller, in which the Court held that the Second Amendment does indeed protect an individual right to keep and bear arms for self defense.

While Heller established that the Second Amendment protects an individual right from infringement by the federal government, McDonald takes the next step, seeking to establish that the Amendment also applies to the States by application of the Fourteenth Amendment.

Specifically, McDonald asks:

Whether the Second Amendment right to keep
and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.

What is intriguing about the question presented in McDonald is that the result could have broad ramifications not only for gun owners and Second Amendment supporters, but for those who cherish economic liberty as well. And as a libertarian living in the age of Barack Obama, the timing could not be any better.

The reason this case has the potential to deal a serious blow to the voluminous and varied economic regulations occupying every nook and cranny of the country is its direct appeal for incorporation through the "Privileges or Immunities" clause. That Clause reads as follows: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

According to the Institute for Justice (IJ), the libertarian public interest law firm that litigated Heller:

The phrase “privileges or immunities” may be unfamiliar today, but 19th-century Americans used it interchangeably with a term modern Americans know very well: rights. After the Civil War, officials throughout the South systematically violated the rights of newly freed blacks and white abolitionists in their states and sought to keep them in abject poverty and terror. The whole point in amending the Constitution to add the 14th Amendment—and with it the Privileges or Immunities Clause—was to end the pervasive culture of oppression and tyranny by state and local governments, thereby protecting through federal law those rights that are necessary to be a full and self-sustaining member of society. Two rights the 14th Amendment was clearly intended to protect were armed self-defense and economic liberty. A federal constitutional amendment was passed to ensure that all Americans, regardless of which state they lived in, enjoyed these rights.

But through an infamous 1873 decision called the Slaughter-House Cases, the Supreme Court ruled 5-to-4 that Americans’ protection under the Privileges or Immunities Clause only protected their rights as U.S. citizens, but not as citizens of a particular state thereby signaling that states were free to run roughshod over the rights of citizens in their states without interference from federal courts. The results were predictably disastrous: Those who were politically disenfranchised soon also became economically marginalized as well. Since then, the U.S. Supreme Court has given certain constitutional rights, such as free speech, greater protection, but other constitutional rights that are just as clearly spelled out in the Constitution, such as the right to bear arms, or those that the Framers of the 14th Amendment plainly sought to protect, such as economic liberty, less protection by the federal courts from state and local infringement.

In what could well be described as the boldest of bold arguments, the lawyers in McDonald are directly urging the Court to overrule the century-plus-old Slaughter-House precedent. This would be tantamount to a near revolution in constitutional law, and could send shockwaves throughout the web of bureaucracies that permeate the American system.

As IJ Senior Attorney Clark Neily explains, "Restoring the Privileges or Immunities Clause of the 14th Amendment to its proper role would result in the protection not only of armed self-defense, but other vital civil rights such as economic liberty, which includes the rights to own property, enter into contracts and earn an honest living."

For those of us on the side of limited government and free markets, this may just be the hope and change we need to salvage some semblance of economic sanity from the near strangulation imposed by know-nothing politicians in their destructive attempts fictionalize economic law.

And if the Court is in fact persuaded in McDonald to overrule the Slaughter-House treatment of the Privileges or Immunities Clause, we would have the Second Amendment to thank. Thus, in short: The right to keep and bear arms serves as the insurance protection by which all other rights are preserved.