14 April, 2009

To Dissolve An Imperfect Union

Today, the State of Texas, with the due complicity of Governor Rick Perry, has put forth the beginnings of their second secession from this Union.

Doesn't sound very pretty when I state it like that, does it? Yet by a straight reading of the Resolution in question leaves little doubt of which direction they are steering towards. Salient points bolded for easy reference:
RESOLVED, That the 81st Legislature of the State of Texas hereby claim 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 serve as notice and demand to the federal government, as our agent, to cease and desist, effective immediately, mandates that are beyond the scope of these constitutionally delegated powers; and, be it further
RESOLVED, That all compulsory federal legislation that directs states to comply under threat of civil or criminal penalties or sanctions or that requires states to pass legislation or lose federal funding be prohibited or repealed; and, be it further
RESOLVED, That the Texas secretary of state forward official copies of this resolution to the president of the United States, to the speaker of the house of representatives and the president of the senate of the United States Congress, and to all the members of the
Texas delegation to the congress with the request that this resolution be officially entered in the Congressional Record as a memorial to the Congress of the United States of America.
Please note that this resolution is citing the 10th Amendment.
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.
I cite in rebuttal Article 6 of the Constitution:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Legislature of the State of Texas is, on the face of it, in clear violation of the National Supremacy Clause as printed above. By unilaterally declaring that the national government must "cease and desist, effective immediately, mandates that are beyond the scope" of the Constitution, they attempt to place the Republic of Texas over the Republic of these United States. Yet under the same Constitution, the laws of the Federal Government lie supreme over the laws of the several States.

Therefore, by placing the will of a single State above that of the United States, the logical conclusion of this action would be to secede completely from the will of the United States in specific, and from membership of the United States as a whole.

We, the People, as citizens of these United States, cannot simply pick and choose which laws we will follow, which laws we will break with impunity, and which laws we can be punished for violating. Likewise, neither can the several States participate in the same process. It is part and parcel of our current national identity, our pledge of "Allegiance to the Flag of the United States of America and to the Republic for which it stands" that we recited every day in childhood, that the will and the power of the national government supersedes that of the individual just as much as it does that of the several states.

The question must come into our heads whether or not I disagree with the intent and the spirit of the Legislature in regard to this resolution. The simple answer is that I do not disagree, and entirely concur with their spirit. I disagree primarily with their method, which bypasses the one significant safeguard designed to protect the will and desires of the several states, and the citizens of these United States, established at the same time as the 10th Amendment:

The First Amendment, specifically the right to petition the government for the redress of grievances.

It has long been the complaint of the Antifederalists, as well as their spiritual descendants in the current Republican Party, that the Supreme Court has usurped the primary power of judicial review without specific authorization under the Constitution, dating all the way back to the Marshall Court in Marbury v Madison. Yet given the 1st Amendment right to petition, who else could bell the cat, could enforce a ruling that the government is in violation of its own rules and regulations, but the judges of the Federal Bench? Would we petition to Congress that the laws they pass are unconstitutional? Would we petition to the President, and his Executive Branch, that the laws he is sworn to uphold and enforce are against the document that he is sworn to protect and defend? And, more importantly, how would we enforce those petitions against a government unwilling to view the validity of our petitions and arguments against their already established laws?

We cannot do so. The Constitution is clear in that regard, that the laws and regulations of the Federal Government supersede all others. Yet it is the Court that does have that capacity, that power, and that ability. I find myself citing John Marshall again: "Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land."

Just as we cannot pick and choose the laws we accept as valid, we cannot also pick and choose the parts of the Constitution we accept as valid. We cannot claim 10th Amendment rights without using 1st Amendment rights. We cannot protect 2nd Amendment rights without protecting 5th Amendment rights. We cannot rule based on the Commerce Clause or the Necessary and Proper Clause without holding them against Limitation Clauses.

And we cannot "form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity," by violating the Constitution that contains those same words. To do otherwise is against the letter of the Constitution, and against spirit of these United States.

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