by Michael Boldin
Tenth Amendment Center
By a vote of 19-12 today, the Ohio State Senate passed Senate Concurrent Resolution 13 (SCR13). (h/t OhioFreeState.com)
The resolution seeks to “claim sovereignty over certain powers pursuant to the Tenth Amendment to the Constitution of the United States of America, to notify Congress to limit and end certain mandates, and to insist that federal legislation contravening the Tenth Amendment be prohibited or repealed.”
If passed by the House of Representatives, Ohio will become the 8th state to have passed such a resolution in 2009. Other states that have reaffirmed their sovereignty are Alaska, Idaho, North Dakota, South Dakota, Oklahoma, Louisiana, and Tennessee.
While sovereignty resolutions do not carry the force of law behind them, supporters say that they are a long-overdue first step in moving the country towards constitutional government.
Charles Key, state representative from Oklahoma and author of that state’s sovereignty resolution, compared these resolutions to a cease and desist notice a landlord gives a non-paying tenant.
“If you’ve got a tenant that’s not paying rent, you don’t just show up one day with an empty truck,” said Key in a recent interview with the Tenth Amendment Center. “First, you serve notice. That’s how we see these resolutions, as a notice to the federal government. And there defintely will be follow up.”
The follow up that Rep. Key is referring to has been popping up all over the country. Legislation that calls upon the Jeffersonian principle of “nullification” has already been advancing a number of causes, and some success has been gained, too.
A state-level rebellion to the Bush-era Real ID act has rendered the law virtually null and void. Thirteen states have passed various marijuana laws in direct contravention to federal laws. Two states have passed laws nullifying some federal gun regulations.
Groups in multiple states are pushing their governments to withdraw their state’s guard troops from Iraq and elsewhere. And people in up to 10 states may have the opportunity to vote on state constitutional amendments effectively banning national health care.
The long-term success of all these efforts remain to be seen, especially with a Federal Judiciary which has not often been too friendly to the Constitutional intent of the Founders and Ratifiers.
But, many supporters point to the growing success on issues like Real ID and Medical Marijuana as examples which prove that with enough state-level resistance, the federal government has no option but to back off, with or without judicial approval.
Read the full text of SCR-13 below:
WHEREAS, The Tenth Amendment to the Constitution of the United States reads: “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”; and
WHEREAS, The Tenth Amendment defines the total scope of federal power as being that specifically granted to the federal government by the Constitution of the United States and no more; and
WHEREAS, The scope of power defined by the Tenth Amendment signifies that the federal government was created by the states specifically to be an agent of the states; and
WHEREAS, Today, in 2009, the states are often treated as agents of the federal government; and
WHEREAS, Many federal laws directly contravene the Tenth Amendment to the Constitution of the United States; and
WHEREAS, We believe in the importance of all levels of government working together to serve the citizens of our country, by respecting the constitutional provisions that properly delineate the authority of federal, state, and local governments; and
WHEREAS, The Tenth Amendment assures that we, the people of the United States and each sovereign state in the Union of States, now have, and have always had, rights the federal government may not usurp; and
WHEREAS, Article IV, Section 4 of the Constitution of the United States, states in part, “The United States shall guarantee to every State in this Union a Republican Form of Government,” and the Ninth Amendment to the Constitution of the United States states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”; and
WHEREAS, The United States Supreme Court ruled in New York v. United States, 505 U.S. 144 (1992), that Congress may not simply commandeer the legislative and regulatory processes of the states by compelling them to enact and enforce regulatory programs; and
WHEREAS, the United States Supreme Court, in Printz v. United States/Mack v. United States, 521 U.S. 898 (1997), reaffirmed that the Constitution of the United States established a system of “dual sovereignty” that retains “a residuary and inviolable sovereignty” by the states. The majority of the United States Supreme Court noted in that case (521 U.S. 898, 921-922):
“As [President] Madison expressed it: ‘[T]he local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.’ The Federalist No. 39, at 245.
This separation of the two spheres is one of the Constitution’s structural protections of liberty. ‘Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.’ . . . To quote [President] Madison once again:
‘In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.’ The Federalist No. 51, at 323?; and
WHEREAS, A number of proposals by previous administrations, some now pending proposals by the present administration, and some proposals by Congress may further violate the Tenth Amendment restriction on the scope of federal power; now therefore be it
RESOLVED, That the State of Ohio hereby acknowledges and reaffirms its residuary and inviolable sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States; and be it further
RESOLVED, That this resolution serves as notice to the federal government as agent of the states, to end federal mandates that are beyond the scope of the constitutionally delegated powers; and be it further
RESOLVED, That all compulsory federal legislation that directs states to comply under threat of civil or criminal penalty or sanction or that requires states to enact legislation or lose federal funding be prohibited or repealed; and be it further
RESOLVED, That the Clerk of the Senate transmit authenticated copies of this resolution to the President of the United States, the President Pro Tempore of the United States Senate, the Speaker of the United States House of Representatives, the Speaker of the House of Representatives and the President of the Senate of each state’s legislature, and each member of the Ohio Congressional delegation.
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