Tim Dunkin: Unintended Consequences: Obama and Company Provoke 10th Amendment Backlash

It is a trademark of incompetence that the only good it does is accidental. In this sense, then, we can be at least a little thankful that President Obama and his fellow travelers in the Democrat Party are incompetent when it comes to their reading of the political tea leaves in America, here and now. As should now be obvious to just about any reasonable observer, the results of the election in November 2008 were not a mandate for the radical Marxification of America. I think that we can credibly argue that what that election represented was simply fatigue with Bush, and (along with the election of 2006) with Republican elected officials who had lost their way, disinclining their base to support them as vigorously as had been seem in previous election cycles. When you’re base ain’t happy, ain’t nobody happy. In short, many conservatives – both inside and outside the Republican Party – stayed away from the polls. What this means is that Obama got into office not on the strength of support for his radical agenda, but on the weakness of his opponents’ “me too” mentality.

The reason Obama was elected was not because the electorate is liberal – and therefore open to his radicalism – but because the electorate is relatively conservative, and the right end of spectrum wasn’t motivated by its own supposed standard-bearers to come out to vote. That this seems plausible is shown by the results from Gallup’s most recent poll of ideological identification. In it, we see that conservatives made up 37% of the population in 2008 (which rose to 40% last year, in response to the Obama agenda). When you run candidates like McCain, and when your Congress – controlled by the Party that is supposedly the party of fiscal discipline – rubber stamps the massive fiscal irresponsibility emanating from a supposedly conservative Republican President, it’s not surprising that you’ll exasperate and drive away a good portion of that vote-rich 37%. As such, Obama’s election, and the Democratic takeover of Congress, did not occur because Americans wanted bailouts, government takeover of our health care system, of massive new taxes justified by appeal to the “anthropogenic climate change” fraud. It occurred because the normally reliable body of conservatives voting for Republicans decided to sit the game out for a while.

Yet, Obama and the Democrats have chosen to interpret their success in 2008 as a mandate for their agenda.

Because of their dramatic misreading of the political landscape, however, their incompetence is helping to foment a movement in America that has the potential to pay great dividends for conservatives and other lovers of constitutionally-limited government. This is the growing movement among the states towards a renewed emphasis on the 10th amendment, that long-forgotten provision in the Bill of Rights that affirms and defines our federal division of powers under the Constitution. Whatever powers of government are not specifically delegated to the federal government nor denied to the state governments are de facto reserved – as natural rights - to the states and the people.

The federal government since the Gilded Age has largely ignored this amendment, and the primary means by which it has done so has been through appeal to Congress’ regulative powers over interstate commerce. This federal involvement really got started with the Interstate Commerce Act of 1887 and the Sherman Antitrust Act of 1890. The abuses of the Interstate Commerce Clause are legion, and have been used to justify all kinds of federal intrusions into the business of the people and the states that often have nothing to do with interstate commerce, or even commerce period.

The original intention of that clause was primarily federative – it was meant to regulate trade between states, and between the states and other nations. The intentions were to help prevent conflicts between the states stemming from disputes over commercial activities and to prevent the erection of barriers to commerce between the several states. For instance, the 1876 case of Welton v. Missouri held as unconstitutional a state law which required vendors to obtain a special license to sell products manufactured outside of the state – this because it imposed a disparate impact on vendors operating across state lines. Indeed, as Bork and Troy point out, the Commerce Clause appears to have originally been intended only to give Congress the power to regulate the act of trade between states, not the various processes (manufacture, transportation, cultivation, etc.) which take place before that trade is effected (see Bork and Troy, Locating the Boundaries: The Scope of Congress’ Power to Regulate Commerce, pp. 864-5). The original intention of this clause was obviously not to give Congress an open door into the inner workings of every manufacturer, transporter, farmer, or shopkeeper in the nation, regardless of where their products or business takes place.

Since then, activist Congresses have taken the ball and ran with it. The Clause is used to justify intrusion into wholly intrastate activities, subjecting to federal regulation anything and everything that Congress decided to gets its fingers into, regardless of whether they fall under the constitutional purview of Congress’ specifically enumerated powers. This has trampled on the rights of the states and the people under the 10th amendment. A slue of egregious examples have emanated from Washington, piling one upon another, within the past year. Obamacare, with the blatantly unconstitutional requirements that it places upon the people and the states, is one example. The obvious question being asked is where in the Constitution, for instance, does Congress derive the power to require the citizens to obtain state-mandated health insurance, pay for it out of their own pockets, or go to jail if they refuse? The obvious answer is that it doesn’t, but then again, our leading congressmen have openly admitted that the Constitution isn’t really necessary anymore, at least in their minds. The list goes on, with each new regulation, each new encroachment on our constitutional liberties. While this has been occurring for decades, Obama and Company’s haste and incontinence have served to bring the matter to a head.

Many of the states are starting to fight back, however. First and foremost in this pushback is the effort by many states to limit federal intrusion into our right to keep and bear arms. Several states, including Missouri and Oklahoma, have seen bills proposed in their state legislatures that would guarantee state support against federal encroachment of citizens who choose to exercise their constitutional 2nd amendment rights. Others, like Montana and Tennessee, have proposed or passed laws that aim to prevent the enforcement of federal laws against the manufacture, transportation, and sale of firearms and accessories that takes place entirely in-state (i.e. theoretically circumventing the Commerce Clause completely). So far, the BATFE (which, if I recall correctly, stands for “Badder Attitude Toward Freedom than Ever”) has served notice to these states that it intends to ignore their laws. Upping the ante, then, is New Hampshire, where House Bill 1285 has already been pre-filed for the 2010 legislative session. This bill is similar to the ones from Montana and Tennessee, except that it contains an added provision,

Any official, agent, or employee of the government of the United States, or employee of a corporation providing services to the government of the United States that enforces or attempts to enforce a act, order, law, statute, rule or regulation of the government of the United States upon a personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in New Hampshire and that remains within the State of New Hampshire shall be guilty of a class B felony.

If this bill passed the legislature and was signed into law, New Hampshire would theoretically be committing itself to arresting BATFE, FBI, or other agents of the federal government who tried to enforce many types of gun laws where the items in question were manufactured, etc. entirely within the state. It would be interesting to see the test case for that one. While federal contempt for the efforts of states to assert their own rights goes all the way back to the Force Act of 1833, which Andrew Jackson rammed through Congress during the Nullification Crisis, the actual use of force to prevent nullification or interdiction has been exceedingly rare, though has seen use. Eisenhower, for instance, relied upon that law when sending the Army in to ensure integration of schools in Little Rock, Arkansas in 1957. Then, the issue was the emotionally charged one of civil rights and equal access of all citizens to the same facilities, which placed Arkansas governor Orval Faubus’ actions in the wrong, since he was actually violating the 14th amendment Equal Protection rights of the black students. Now, however, the proposed nullification would be in support of a constitutional right – which removes the moral and emotional legitimacy that accrued to the Feds in the Arkansas integration case. Would Obama and Co. have the nerve to try to use the military to force New Hampshire to violate the 2nd amendment rights of its citizens? Would the military allow itself to be used in such a way?

Guns aren’t the only area where the states are reasserting their rights under the 10th amendment, both to protect their own sovereignties and the rights of their people. The attorney generals for several states have already filed, or plan to file, actions declaring the conglomeration of Obamacare health care “reforms” unconstitutional. This would also set up an interesting rehash of the nullification question, first taken up by South Carolina in 1832, and which was ruled against by the Supreme Court in the 1859 Ableman v. Booth case. It might be time, however, to revisit this question, especially in light of the vast overreaches that have spewed forth from the federal government in the intervening 151 years. A review and overturning of the Ableman decision may well be in order.

One other popular area in which states have begun to assert their rights is on the question of medical marijuana laws. Thirteen states – mostly in the West, and not all of them Blue states by any means – have legalized medicinal uses of cannabis, yet have had to deal with all kinds of interference from the federal government, because of federal drug laws. Regardless of whether one is a libertarian or a drug war super soldier on the issue, surely we can see the 10th amendment case for devolving this issue, and the issues related narcotics entirely, back to the states.

Who knows where this could lead? If this trend towards the reassertion of the 10th amendment doesn’t end up just being a one-time response to Obama and Co., if it can become an institutionalized part of the conservative movement as a whole, there is a shot that states’ rights might come back into its own. If conservatives can unite and take the Republican Party back for conservatism, and can win big in 2010 (as it looks like they are almost certain to do), and can repeat this in state legislatures all across the country, this could end up being very, very big. Having actual conservatives in Congress at the federal level who would sympathize with their conservative colleagues at the state level would be an open door for rebalancing our federalism. Just think – maybe conservative legislators could finally get around to, for instance, returning education issues back to the states, where they belong? Maybe the federal government would stop holding things like highway funding over the heads of the states as an alternating carrot and stick to enforce compliance with overreaching, unconstitutional federal actions? I agree – it seems pie-in-the-sky. But then again, even a year ago, who would have thought that there would be legislators in New Hampshire who would have publicly conceived of the idea of arresting federal agents who enforce unconstitutional laws in their state, much less who would actually file a bill to try to get it done? The midterm elections coming up this November are vitally important, from a 10th amendment point of view. Will we have a Congress that supports federalism and is willing to face off with President Obama on the issue, or will we continue to have a Congress that uses the Constitution as a Kleenex?

For those of us who believe in states’ rights and who want to see the proper constitutional balance between state and federal powers reestablished, these recent turns of event are breathes of fresh air. It’s ironic to think that if it hadn’t been for Barack Obama, Nancy Pelosi, Harry Reid, and the rest of their gang of mobsters in Washington, this movement might not have started. While I don’t agree with the Democrats, their plans, or their agenda, I can still be thankful for their unintended consequences.