According to The Associated Press, at least 16 California dispensary owners and landlords received letters putting them on notice that they must close down their operations within 45 days or face criminal charges and confiscation of their property.

In the same article, Kevin Sabet, a former adviser to the president’s drug czar is quoted as saying “This really shouldn’t come as a surprise to anyone. The administration is simply making good on multiple threats issued since President Obama took office.”

To be fair, I don’t recall ever reading anything from the administration that explicitly promised they wouldn’t prosecute individuals under federal law but it certainly seemed that at the very least, medical marijuana patients and providers would be a very low priority for prosecution. Patients and practitioners had to know that there would be at least some legal risks even with Obama in office and realize that the next president could just as easily change the policy.

This presents a very interesting opportunity to find out which G.O.P. presidential candidates are truly committed to the notion of federalism (especially where the Tenth Amendment is concerned) and those who are not. Rep. Ron Paul and Gov. Gary Johnson obviously favor ending the war on (some) drugs and would clearly restore state sovereignty on this and other issues. Gov. Rick Perry in his book Fed Up! (as quoted here) writes:

Again, the best example is an issue I don’t even agree with—the partial legalization of marijuana. Californians clearly want some level of legalized marijuana, be it for medicinal use or otherwise. The federal government is telling them they cannot. But states are not bound to enforce federal law, and the federal government cannot commandeer state resources and require them to enforce it.

Rick Santorum seems to be the least committed to the notion of state sovereignty as he pillories Gov. Perry for this and other positions regarding state laws he deems to be “moral wrongs.”

It’s certainly Gov. Perry right to believe marriage can be redefined at the state level, that marijuana can be legalized and that tax dollars should be used to give illegal aliens special college tuition rates, but that’s completely out of touch with what most Americans believe.

So says the man who is polling at 2.7% (RCP Average).

Regardless of what one thinks about medical marijuana legalization at the state level or federalism in general, those who find themselves in legal limbo deserve to have a clear answer to where they stand. The candidates should all agree that this vague, unpredictable policy is unacceptable.

On October 1, 2009, Montana passed the Montana Firearms Freedom Act, the purpose of which was to regulate guns manufactured and kept within Montana state lines under a less restrictive regulatory regime than federal law provides. That same day, to ensure that Montanans could enjoy the benefits of this less restrictive state regulation, the Montana Shooting Sports Association filed a declaratory judgment claim in federal court.

The lawsuit’s importance is not limited to Montana, as seven other states have passed laws similar to the MFFA and 20 states have introduced such legislation. The goal here is to reinforce state regulatory authority over commerce that is by definition intrastate, to take back some of the ground occupied by modern Commerce Clause jurisprudence.

The district court granted the government’s motion to dismiss, however, and MSSA appealed to the Ninth Circuit. Now on appeal, Cato has joined the Goldwater Institute to file an amicus brief supporting the MSSA and arguing that federal power does not preempt Montana’s ability to exercise its sovereign police powers to facilitate the exercise of individual rights protected by the Second and Ninth Amendments. More specifically, for federal law to trump the MFFA, the government must claim that the Commerce and Necessary and Proper Clauses give it the power to regulate wholly intrastate manufacture, sale, and possession of guns, which MSSA argues is a state-specific market distinct from any related national one.

The general question here is whether modern Commerce Clause jurisprudence should be upended for this case. I believe it should, but I believe it won’t. The manufacture/sale/possession of firearms, while declared to be purely intrastate matters, would seem to “substantially affect” interstate commerce in the same way as the Court found in Wickard & Raich. On the question of whether the activity affects interstate commerce, I don’t think there can be any debate should current Commerce Clause jurisprudence hold. Under such jurisprudence, the Feds can reasonably claim that their more stringent requirements for firearms is Necessary to effectively regulate firearms in an interstate manner.

The actual brief (linked above) submitted by Goldwater & Cato draws more narrow inferences than the quoted text above, however. They recognize the current precedent of Wickard & Raich, but push a state sovereignty angle which seems much more substantial. The argument seems to be that in areas traditionally regulated at the state level, rather than the federal level, and where the state action is protecting individual liberty rather than restricting it (i.e. no 14th amendment privileges & immunities issues here), the level of scrutiny required by the Feds to override State law should be significantly higher. However, I suspect that such efforts will still either fall short, or require Supreme Court gymnastics to carve out a VERY narrow exception here (i.e. emanations & penumbra gymnastics).

It’s telling that one of the cases used as justification here is a case [Massachusetts v. Sebelius] where Massachusetts argued against the DOMA, on the grounds that Massachusetts more libertarian law upholding same-sex unions was infringed upon by DOMA. Effectively DOMA made it impossible for certain federally-funded programs which would traditionally go to “married” couples (or survivors thereof) could not be extended to same-sex couples. Because the regulation of marriage was traditionally within the purview of the States, not the Feds, and because DOMA violated the State’s liberty-protecting equal protection clause within the Massachusetts Constitution, for the Congress to intervene here was shown to be a violation of Massachusetts sovereignty.

However, I don’t think the Massachusetts case will be applicable here. While it is traditionally the purview of the States to regulate marriage, I don’t think it can be shown here that Massachusetts recognition of same-sex marriage substantially affects interstate commerce. The portion of DOMA that would have protected states from being forced to recognize same-sex marriages from other states was also not at issue. While it might be within the general police powers of the States to regulate some aspects of firearms manufacture/sale/ownership, I believe the Court would find the Commerce Clause precedent more binding than a finding of state sovereignty.

Another aspect of the state sovereignty argument appears in section I-A of the brief [p7-11]. Several points are raised:

• That the Federal government cannot force a State legislature to legislate as directed by the Feds. In this case, I don’t believe the point applies, as the Feds are not demanding the States implement this regulation for them, but rather declaring such regulation to be a Federal matter to be decided by Congress rather than the States.
• That the Federal government cannot commandeer State resources for the execution of federal regulation. Again, they are not forcing State police to enforce a more strict version of firearms regulation, and various drug decriminalization (and State medical marijuana initiatives) have created a situation where, while a State may [unconstitutionally] declare certain activities legal that the Federal government deems illegal, the States are within their rights to limit the use of State resources for investigation and prosecution of Federal crimes that they deem unwieldy. California can simultaneously hold the position that while medical marijuana is Federally illegal, the State does not consider it criminal, and thus the Feds themselves must enforce it if they so choose.
• That the Federal government may not regulate/criminalize wholly intrastate activities with no economic impact. I think Commerce Clause jurisprudence would suggest that manufacture/sale/possession of weapons cannot be shown to be wholly intrastate, and it certainly includes economic impact.
• Finally, that the Federal government may not subject State government employees to the dictates or working regulations of the Federal government — I think this one is so far removed from the case at hand to not warrant discussion.

To argue that this is a matter of state sovereignty is to argue that regulations of firearms has been a long-standing matter of the states themselves, and that for the Federal government to step in and demand more stringent regulation under Commerce Clause grounds requires such heightened scrutiny that cannot be supported here. However, Federal firearms laws have been in force since 1934, and while this is not proof that the regulation of firearm manufacture/sale/ownership should be a Federal matter, it certainly cuts some strength from the argument that this is purely a matter of state sovereignty.

It seems to me that this lawsuit is a bit of a hail mary. For it to succeed, we would need to see a sea-change in Commerce Clause jurisprudence (almost impossibly unlikely), or for the Brady Bill and/or National Firearms Act to be struck down as Unconstitutional (because both would infringe on state sovereignty). A greater likelihood, based on current conservative makeup of the court, would be a VERY narrowly worded decision involving some legal gymnastics. However, given the deference to Federal power I’ve seen from Roberts & Alito, and given that they would need such a narrow crafting to ensure that they wouldn’t open up whole hosts of other State sovereignty challenges to Federal law, I don’t see much likelihood there. Fundamentally the plaintiffs are pushing for a general large change in Federal/State interaction, one which I doubt the Supreme Court is ready to uphold.

Of course, that’s all assuming it ever makes it to the Supreme Court, itself an unlikely prospect.

While I have great sympathy for the plaintiffs here, I can’t say I’d be laying strong odds on their success.

PS – Please note, of course, that I am not a lawyer. I don’t play one on TV, and I barely do a good impersonation of one in the blogosphere. Take all of the above with a large grain of salt, and I heartily welcome anyone with true legal expertise to tell me where I’m dreadfully wrong in the above.

Stewart Rhodes, the founder of an organization established in 2009 called Oath Keepers, says that not only do soldiers and peace officers have a right to refuse to carry out an order that violates the U.S. Constitution but a sworn duty to disobey the order. Rhodes, graduate of Yale Law School, veteran, former firearms instructor, and former staffer for Congressman Ron Paul’s D.C. office, started Oath Keepers in response to what he perceived as an erosion of civil liberties that has escalated since 9/11.

Oath Keepers’ critics (particularly on the Left) believe the organization to be a Right wing “extremist” organization full of Birthers, Truthers, militia members, hate groups, and various other conspiracy theorists. In this article in Reason, Rhodes clears the air. Also, found in the organization’s bylaws:

Section 8.02
(a) No person who advocates, or has been or is a member, or associated with, any organization, formal or informal, that advocates the overthrow of the government of the United States or the violation of the Constitution thereof, shall be entitled to be a member or associate member.

(b) No person who advocates, or has been or is a member, or associated with, any organization, formal or informal, that advocates discrimination, violence, or hatred toward any person based upon their race, nationality, creed, or color, shall be entitled to be a member or associate member.

So what specifically makes Oath Keepers so controversial? My guess would be their list of 10 “Orders We Will Not Obey”:

1. We will NOT obey orders to disarm the American people.

2. We will NOT obey orders to conduct warrantless searches of the American people

3. We will NOT obey orders to detain American citizens as “unlawful enemy combatants” or to subject them to military tribunal.

4. We will NOT obey orders to impose martial law or a “state of emergency” on a state.

5. We will NOT obey orders to invade and subjugate any state that asserts its sovereignty.

6. We will NOT obey any order to blockade American cities, thus turning them into giant concentration camps.

7. We will NOT obey any order to force American citizens into any form of detention camps under any pretext.

8. We will NOT obey orders to assist or support the use of any foreign troops on U.S. soil against the American people to “keep the peace” or to “maintain control.”

9. We will NOT obey any orders to confiscate the property of the American people, including food and other essential supplies.

10.We will NOT obey any orders which infringe on the right of the people to free speech, to peaceably assemble, and to petition their government for a redress of grievances.

Imagine how much freer our country would become if everyone in law enforcement and in the military adopted this creed and took their oaths seriously?

The political problem for the GOP committee chairmen is that the 2005 Real ID Act has proven to be anything but popular: legislatures of two dozen states have voted to reject its requirements, and in the Michigan and Pennsylvania legislatures one chamber has done so.

That didn’t stop the House Republicans from saying in a letter this week to Homeland Security Secretary Janet Napolitano that “any further extension of Real ID threatens the security of the United States.” Unless Homeland Security grants an extension, the law’s requirements take effect on May 11.

Hopefully this comes to a head, and hopefully the Republicans pushing this get an education in federalism. It’s going to come in mighty handy in resisting Obamacare.

A group of South Dakota lawmakers has introduced a bill that would require almost everyone in their state to buy a gun once they turn 21.

Turns out it’s not a serious attempt. Rather, the lawmakers are trying to make a point about the new health care law — that an individual mandate is unconstitutional, whether it requires everyone to buy health insurance or, in South Dakota’s case, a firearm.

Rep. Hal Wick, one of five co-sponsors, told The Argus Leader newspaper that he expects the bill to fail.

“Do I or the other co-sponsors believe that the state of South Dakota can require citizens to buy firearms? Of course not. But at the same time, we do not believe the federal government can order every citizen to buy health insurance,” he said.

The town of Kennesaw, GA mandates that every resident own a gun. The State of Massachusetts mandates that every resident purchase health insurance. Neither of those mandates caused a US Constitutional crisis. How in the world is the proposed South Dakota gun mandate in any different?

In truth, it’s not. We have long placed certain actions within the purview of State power that would be unconstitutional if done federally. It is only blatant misreading of the commerce clause that has allowed the Feds to infringe as far as they have.

Yet these dolts think that trying to enact a STATE mandate is somehow logically analogous to fighting a federal mandate. As if nobody had heard of MassCare or nobody had drawn up the suggestion that states have the power to require car insurance but may be* unconstitutional to mandate at the Federal level. They, by their words above, do not even seem to grasp the distinction between Article I, Section 8′s enumeration of powers at the Federal level and the fact that States are held to a different [lower] standard.

I can only see two reasons for this:

1. They really ARE this dumb.
2. This is all just one big publicity stunt.

The former suggests that the voters of South Dakota shouldn’t be trusted at the ballot any further, as they clearly can’t elect people capable of behaving responsibly in office. The latter suggests that the politicians just happen to believe that the voters of South Dakota [and writers for Fox News] are so dumb that they can’t tell the difference between State and Federal actions. Either way, it’s one more example that democracy doesn’t work.

* I say “may be” because while I think a Federal car insurance mandate would be unconstitutional, I fear that this fight over the individual mandate may prove that the Supreme Court would recognize no such mandate in violation of the law. Such would be a failing of the Court’s jurisprudence, not the Constitution.

With public attention focused on taxes, the deficit, gays in the military and nuclear arms reduction, little attention has been paid, so far, to the Tea Party’s most far-reaching move to remake American governance.

[...]

The proposal is sweeping, expressing with bold simplicity the view of the Tea Party and others that the federal government’s influence is far too broad. It would give state legislatures the power to veto any federal law or regulation if two-thirds of the legislatures approved.

The chances of the proposal becoming the Constitution’s 28th Amendment are exceedingly low. But it helps explain further the anger-fueled, myth-based politics of the populist new right. It also highlights the absence of a strong counterforce in American politics.

Well, so far, they haven’t strayed too far from the truth. Sure, they use the term “remake” where I would probably use “restore”, but the rest of the statement still stands. And, shock of shocks, the Times even gets the basic description of the Amendment right. But, alas, the truth quickly fades as the truthiness takes over.

What about those “anger-fueled, myth-based politics”? Well, the politics of limiting the Federal government are anger-filled, but this charge is leveled at us by the NYT to render our cause illegitimate. That’s where it rings false. We are angry because Washington is out of control. The list of abuses committed against freedom in the last twenty years needs no recitation here, but it culminated with a health-care reform law forced upon an American population that clearly and vociferously opposed it. Even today, job growth is stagnant in the face of a capricious and vengeful regulatory monster sitting on the banks of the Potomac ready to strike.

What about myth-based? The only things myth-based here is the notions of history held by the Times’ editorial board:

These flaws make the proposed amendment self-defeating, but they are far less significant than the mistaken vision of federalism on which it rests. Its foundation is that the United States defined in the Constitution are a set of decentralized sovereignties where personal responsibility, private property and a laissez-faire economy should reign. In this vision, the federal government is an intrusive parent.

The statement above is so ridiculous that any further ridicule from me would only distract you from its ridiculousness. I will, instead, only point out that if the New York Times’ editorial board not collectively slept through its eighth-grade civics classes, it would know that it just described the United States from its founding until the end of the Civil War.

Here, the NYT gets uncomfortably close to the truth, and so has to go scurrying back to the mythical founding of the United States it holds so dear:

The error that matters most here is about the Constitution’s history. America’s fundamental law holds competing elements, some constraining the national government, others energizing it. But the government the Constitution shaped was founded to create a sum greater than the parts, to promote economic development that would lift the fortunes of the American people.

The NYT board is deliberately ignoring the fact that the Barnett amendment, albeit crude, is a manifestation of the Founders’ belief that the States themselves should have representation in the Federal government. Before the 17th Amendment, it was the intent of the Constitution that the Senate represent the States, not the people (who were represented in the House). In reaction to the national trauma of the Civil War, the next half century featured a shift of power from the States to the Federal government.

The merits of the shift from a balance between the States and the Federal government to a dominant Federal government are open to debate, especially as we are seeing the faults of the dominant Federal government ever more clearly. However, the New York Times does not approach the issue from this reasonable position. Instead, they try to rewrite history to claim that it has always been this way.

This begs the question of why a once-august journalistic institution has devolved into a pathetic imitation of the Ministry of Truth. For that, we shall let the Times speak for itself:

In past economic crises, populist fervor has been for expanding the power of the national government to address America’s pressing needs. Pleas for making good the nation’s commitment to equality and welfare have been as loud as those for liberty. Now the many who are struggling have no progressive champion. The left have ceded the field to the Tea Party and, in doing so, allowed it to make history. It is building political power by selling the promise of a return to a mythic past.

This nation has always yearned for more government. Soon enough, they will be saying we have always been at war with Eastasia. Remember, the editorial board of the New York Times are siding with the government against you, and are making the truth a sacrificial lamb in the process.

But even as much as I have some major concerns about Ken Buck and dislike him personally, the Democrats are running some ads that I believe are lacking in historical context and misrepresent the founding principles of our constitution and our republic.

Here’s the first ad entitled “Different”:

This “radical” idea that the state governments would choose their senators instead of the voters is hardly a new idea conjured up by Ken Buck. If we accept the notion that Buck would “rewrite” the Constitution, he would merely be changing the way senators are selected back to the way the founders intended 223 years ago. It wasn’t until the 17th Amendment was passed in 1913 that senators were chosen by popular vote in each state. In fairness, the ad does mention that for “nearly 100 years” Colorado voters picked their senators. It seems to me that the Democrats are counting on the average historical ignorance of civics 101 of the average person to be outraged at such an “un-democratic” idea.

Now to the second ad entitled “Represent”:

The second ad repeats the “rewrite the Constitution” claim but goes even further “change the whole Constitution?” Repealing the 17th Amendment is hardly changing the whole Constitution.

And what about this scandalous idea that Ken Buck wouldn’t necessarily “represent” what Coloradans wanted and would “vote the way he wanted”? Is this really what we want – senators and representatives with no will of their own?

To the lady in the ad who says “If Ken Buck doesn’t want to listen to what we have to voice our opinion then why is he even running?” my response would be that if its up to each senator to poll his or her constituents on each and every issue, why do we even need senators at all? This is why we have elections. If your congress person or senator consistently acts contrary to your principles, vote for someone else on Election Day. If you have a problem with Ken Buck’s policy positions as I do, don’t vote for him.

Despite popular belief, our system of government is not a democracy but a republic based on the rule of law. The senate was designed to be a counter balance to the fickle whims of the majority of citizens. Prior to the 17th Amendment, senators were selected by state legislatures so that the states themselves would be represented at the federal level while the people were represented directly in the House of Representatives.

There are certainly some good arguments for repealing the 17th Amendment that I don’t believe are “radical” at all. For one, if the state legislatures picked the senators, perhaps there would be more reason to pay attention to government at the state level. How many people in 100 can name their senator and representative in their state legislature let alone have any idea about their voting records?

Also, because senators are chosen by popular vote, some argue that their loyalties are not so much with the states they are supposed to represent but the senate itself. As a result, its much easier for the federal government to blackmail the states via unfunded mandates and holding funds hostage if states pass laws the federal government disagrees with (ex: forcing all states to keep the drinking age at 21 in order to receive highway funding).

Certainly, the repealing the 17th Amendment wouldn’t be a panacea and there are probably some very persuasive arguments in supporting the 17th Amendment. No system of government is perfect even in its most ideal form.

The founders were keenly aware that majorities could be as tyrannical as any monarch or dictator. A more democratic government does not necessarily mean people have more liberty; the opposite is more likely the case.

Nullification is the civil disobedience of Federalism. Is it legal? No. After all, the Supremacy Clause and judicial review see to that. But it wasn’t legal for Rosa Parks to sit at the front of the bus, or for black students to sit at a “Whites-only” counter at Woolworth’s. Sometimes, the law is a ass. Sometimes, you need to disobey to make a point.

(…)

Viewed this way, nullification is less about disobedience as it is about changing policy. Nullification is a tactic in a wider strategy. It is a way to register unhappiness with federal dictates without necessarily going full-bore and threatening secession. Further, it is a way to demonstrate, by direct example, that changes in policy are preferable to the way Washington demands.

Taking this view of nullification, I don’t necessarily disagree with Brad on the value of state’s, and their citizens, weighing in on what they believe to be a usurpation of Federal power. After all, this is something that has a long and noble history in America. When President John Adams persuaded Congress to pass The Alien and Sedition Acts, Thomas Jefferson, who at that point was serving as Adams’s Vice-President, and James Madison worked together to draft and ensure the passage of the Kentucky and Virginia Resolutions, which were resolutions passed by the state legislatures of Virginia and Kentucky to condemn laws which Adams’s opponents viewed as both unconstitutional and near-dictatorial.

The resolutions — which you can read here, here, and here — are interesting in themselves because they contain one of the first post-ratifications statements by American leaders of what they believe the Constitution to mean, as this excerpt from the Kentucky Resolution of 1798 shows wonderfully:

2. Resolved, That the Constitution of the United States having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the high seas, and offences against the laws of nations, and no other crimes, whatsoever; and it being true, as a general principle, and one of the amendments to the Constitution having also declared, that “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,”—therefore, also, the same act of Congress, passed on the 14th day of July, 1798, and entitled “An Act in Addition to the Act entitled ‘An Act for the Punishment of certain Crimes against the United States;’” as also the act passed by them on the 27th day of June, 1798, entitled “An Act to punish Frauds committed on the Bank of the United States,” (and all other their acts which assume to create, define, or punish crimes other than those so enumerated in the Constitution,) are altogether void, and of no force; and that the power to create, define, and punish, such other crimes is reserved, and of right appertains, solely and exclusively, to the respective states, each within its own territory.

3. Resolved, That it is true, as a general principle, and is also expressly declared by one of the amendments to the Constitution, that “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 that, no power over the freedom of religion, freedom of speech, or freedom of the press, being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the states, or the people; that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech, and of the press, may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use, should be tolerated rather than the use be destroyed; and thus also they guarded against all abridgment, by the United States, of the freedom of religious principles and exercises, and retained to themselves the right of protecting the same, as this, stated by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference; and that, in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press,” thereby guarding, in the same sentence, and under the same words, the freedom of religion, of speech, and of the press, insomuch that whatever violated either throws down the sanctuary which covers the others,—and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That therefore the act of Congress of the United States, passed on the 14th of July, 1798, entitled “An Act in Addition to the Act entitled ‘An Act for the Punishment of certain Crimes against the United States,’” which does abridge the freedom of the press, is not law, but is altogether void, and of no force.

That’s mighty strong language. Stronger, some would say, than the laws that a few states have passed since March challenging the Federal Government’s authority to require Americans to purchase health insurance. However, it’s worth noting what Madison and Jefferson were not doing, because as Madison acknowledged in his defense of the resolutions, there is no Constitutional authority granted to the states that would allow them to nullify a Federal law:

Nor can the declarations of either [the citizens or the legislature of Virginia], whether affirming or denying the constitutionality of measures of the Federal Government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge. The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, whilst that will and that opinion continue unchanged.

And if there be no impropriety in declaring the unconstitutionality of proceedings in the Federal Government, where can be the impropriety of communicating the declaration to other states, and inviting their concurrence in a like declaration? What is allowable for one, must be allowable for all; and a free communication among the states, where the Constitution imposes no restraint, is as allowable among the state governments as among other public bodies or private citizens. This consideration derives a weight, that cannot be denied to it, from the relation of the state legislatures to the federal legislature, as the immediate constituents of one of its branches. . . .

Considering that this was written by a man who was both one of the principle authors of the Constitution and one of the authors of the Resolutions, it seems to me that it is fairly persuasive evidence that, whatever else the Tenth Amendment might mean, the Founders never intended to give the individual states the power to nullify state laws.

So, basically, that leaves “nullification” (and personally I don’t like the word because of it’s historical associations with secessionists and segregationists) in the category that Brad would put it; a method by which the citizens can, through their state legislatures and the Courts if necessary, petition Congress for a redress of grievances.

However, when nullification is discussed today, it isn’t the “civil disobedience” variety that Brad favors that’s being advocated. In his new book, Nullification: How to Resist Federal Tyranny in the 21st Century Thomas Woods essentially argues for a full-throated right on the part of the states to ignore Federal laws if they choose to do so:

Nullification is Thomas Jefferson’s idea, articulated most clearly in his Kentucky Resolutions of 1798, that if the federal government passes a law that reaches beyond the powers delegated by the states, the states should refuse to enforce it. Jefferson believed that if the federal government is allowed to hold a monopoly on determining what its powers are, we have no right to be surprised when it keeps discovering new ones. If they violate the Constitution, we are “duty bound to resist,” to quote James Madison’s Virginia Resolutions of 1798.

Now this is a vast simplification of the argument that Woods makes, you can get a better idea of what he means in this interview:

I have yet to read Woods’ book, and still want to, but it’s fairly clear that his argument suffers from the fact that there just isn’t any historical support for his idea that the Constitution grants states the right to essentially break Federal law by ignoring it if they believe that it is unconstitutional. Any reliance on the Virginia and Kentucky Resolutions, for example, is easily rebutted by Madison’s own admission that the Resolutions were expressions of opinion rather than something that had the force of law.

History after the Resolutions doesn’t really provide any support for Woods’ argument either. The most notable example came during the Nullification Crisis of 1832, when South Carolina purported to declare a Federal import tariff unconstitutional and took steps to prevent Federal agents from collecting tariffs on goods entering through the Port of Charleston. Though the matter was resolved, it set the nation down a road toward secession that resulted in the bloodiest war in American history. After the Supreme Court’s decision in Brown v. Board of Education, ten Southern states used the doctrine of nullification, and the related concept of interposition, to attempt to resist efforts desegregate school and refuse to enforce the Court’s decision. In Cooper v. Aaron, the Supreme Court held that such efforts were unconstitutional:

Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, “to support this Constitution.” Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers’ “anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . .” Ableman v. Booth, 21 How. 506, 524.

No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . .” United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a [358 U.S. 1, 19] power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, “it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . .” Sterling v. Constantin, 287 U.S. 378, 397 -398.

In other words, if nullification of the type Woods advances actually existed, we would no longer live in a Federal system, but in something more closely resembling the Articles of Confederation. Since the Constitution was written to replace the Articles, it’s clear that the Founders never intended to give the states the power to decide for themselves what the Constitution means and to randomly choose to ignore Federal laws based on that interpretation. Therefore, Woods’ nullification is little more than a professorial fantasy.

In closing, I don’t necessarily object to the kind of “civil disobedience” nullification that Brad favors. Let’s just not pretend it has the force of law.

In federal politics, states are party to an uneasy compact with other states under the guise of a superior government.

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.

As such, they cede many powers to that national government, but one must think that they do not cede all of their own powers. Something must be held in reserve. The question is what? After all, this “Supremacy Clause” Constitution only grants supremacy to those laws made in pursuance of the Constitution itself — anything not permitted by the Constitution must not be considered to be Supreme. The real question, then, is who decides what is Constitutional?

Since 1803 and John Marshall, half of that question has been decided. The US Supreme Court is the arbiter of what is, and what is not, Constitutional. Further, a critical tool of state protection against the overreaches of the national government, the state appointment of Senators, was stricken in 1913 by the Seventeenth Amendment. Thus, the only legal method of appeal to Constitutionality available to the States is appeal to the Supreme Court, a body that hasn’t found many overreaches of national government since the New Deal.

Nullification, the doctrine that states can disregard federal laws, declaring them unconstitutional, is a provocation somewhere between fighting a battle at the Supreme Court level and secession.

Appeal to the Supreme Court is basic and need not be addressed here. Secession is a far more drastic measure, far more controversial, and an area where I believe Doug and I disagree, so it does require some treatment. Secession is often equated with violence, and treated as “violent revolution”, but I would say that most instances of violence were continued by the government trying to retain their subjects, not by those trying to withdraw. In the American Revolution, nothing that I’ve seen suggests that had the British peacefully withdrawn their troops, the colonists would have had any cause for continuation of violence. Even in the US Civil War, it is unlikely that, had the North allowed the South to secede, that the South would have ridden on Washington to impose slavery back upon the North. Secession is not overthrow of the government, it is withdrawal therefrom. Of course, Doug and I agree that, whether they had the right or not, the South’s secession was for morally unconscionable reasons — the continuance of the despicable practice of slavery. But the South’s secession was no different than the American Revolution in that they were NOT attempts to overthrow a government outside of the territories that wanted their freedom, they could have been peaceful separations. The breakup of the Soviet Union is a good example. While it was only peaceful because the Russians didn’t have the power to hold it together, it was a peaceful secession nonetheless.

So at this point we’ve sketched out two responses to potentially unconstitutional overreaches by a national government. The first is the relatively weak appeal to the Supreme Court — asking the government to self-regulate. This is a difficult option. A Senate prior to the Seventeenth Amendment might take seriously their “Advice and Consent” role in judicial nominations to only nominate those who would respect state sovereignty and Constitutional limits, but that ship has sailed. In its wake, it’s left a court with an expansive view of national government authority. Secession, on the other hand, is all-or-nothing. And while it may not be a violent act, history has shown that it often will be. As Doug pointed out in all three posts I read of his referencing secession, Jefferson in the Declaration of Independence said that taking to arms should not be done “for light and transient causes”.

Leaving only these two options is a fool’s game. Secession will only be legitimate in the face of absolutely unconscionably abuse, and appeal to the judiciary is impotent and unlikely to succeed [and further, the structure of the direct election of Senate and the Supreme Court nomination process makes it unlikely this will change]. If one wants to give the national government limitless power, asking only that it police itself, having only these two options is the roadmap…

…which is why we need nullification.

Nullification is the civil disobedience of Federalism. Is it legal? No. After all, the Supremacy Clause and judicial review see to that. But it wasn’t legal for Rosa Parks to sit at the front of the bus, or for black students to sit at a “Whites-only” counter at Woolworth’s. Sometimes, the law is a ass. Sometimes, you need to disobey to make a point.

I’ll give an example. Here in California, we have legalized marijuana for medical purposes. This is in DIRECT contradiction to the Controlled Substances Act, an act that empowered the regulation to be written that declares marijuana a Schedule I drug — with no medical use whatsoever. This is nullification in action. This is civil disobedience. California is not denying the Federal government’s power to enforce the drug laws — but it is denying its compliance with those laws and its assistance to the Feds in such power.

What will the result of this action be? Well, this (and potentially the follow-on Proposition 19) forces the people of California address the question of marijuana. Several states have followed on with their own medical marijuana laws. We now have a body of medical marijuana users which can be called upon to testify that marijuana does have medical use. We have families who have watched their loved ones, battling horrible diseases which sap their appetite, who have been able to eat enough to keep their strength. Hopefully the result of this action will be the government backing down and taking marijuana off Schedule I.

Viewed this way, nullification is less about disobedience as it is about changing policy. Nullification is a tactic in a wider strategy. It is a way to register unhappiness with federal dictates without necessarily going full-bore and threatening secession. Further, it is a way to demonstrate, by direct example, that changes in policy are preferable to the way Washington demands.

Undoubtedly, Doug will respond that nullification can be used for nefarious purposes, much like secession. I cannot disagree. Arizona is willing to prove that, as if there haven’t been enough historical examples already. Nullification is a tool, and it is the one who wields the tool who is important.

The national government appropriates power to itself, and it has built structures to weaken or remove legal impediments to that power. In response, we need illegal, but peaceful, impediments. Non-violent resistance carries with it a moral weight that legal Supreme Court wrangling never will, and that is a tool that we in the fight for liberty do NOT want to cede.

Nullification may not be legal, but it is legitimate.

When I saw Michael’s post this morning, I was a little bit surprised. I was expecting him to make the argument that States’ Rights don’t exist. In fact, I was waiting for one specific statement that I’ve heard from those who attack the notion of states’ rights many times over. Thankfully, two comments in, commenter John222 made the point:

States don’t have rights, individuals do. Better would be to say, “The interest of the State in protecting the rights of it’s citizens”.

This is a common statement among libertarians, and although I’ve probably used it in the past, there have been points where I’ve become troubled by it.

Michael made some very important points in his post, and these are points that must be answered. However, to begin, we must have an understanding of the origin, the nature, and the limitations of states’ rights. Only by setting this groundwork may I refute Michael. But first, a caveat. In order to make the points I must make, I must work with two critical assumptions:

1. Natural rights of individuals exist.
2. Constitutional democratic government is legitimate.

For those that have read my previous work, it should be understood that I believe neither of these assumptions. I am a philosophical anarchist, and while I can construct a non-theistic basis for natural rights theory, I view them as artificial constructs, not incontrovertible truths. However, we must work within the framework we have, and thus I will concede these points for the purposes of this post. For the purposes of discussion and comments, please try to take these two premises at true, and if you have a problem with the argument flowing from those premises, attack the argument.

Let’s start at the beginning:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Here’s the base. Natural rights are the area where we say to government: “Over this line you may not tread.”

Individuals have certain natural rights, and they empower governments to help them protect these rights. The statement that “States don’t have rights, only individuals do” does not account for what we consider the social contract. Individuals enter into an implicit contract with their government, offering to entrust some of the rights they hold in the “state of nature” to their government in order for cooperation and protection of those rights. Those governments do not gain *new* rights as governments, but they inherit the rights of those they are designed to protect.

Natural rights theory does not hold that individuals give up their rights to the government, the rights are retained. It is best to be understood as a legal contract — individuals freely, by exercise of their rights, create their government. They voluntarily empower their society — their government — to protect their rights. A government that reaches beyond the legitimate power of protection of those rights, as Jefferson himself states, deserves no longer our assent or our support. If said government treads beyond the lines defined above, that government has violated the social contract.

“Government”, of course, is not a singular entity. Governments are hierarchical, competitive, and numerous. In many cases, we are under the jurisdiction of several governments — entities within entities. In many cases, the governments we live under must make compacts with other governments outside our territory — treaties — in order to help complete the tasks which we have empowered them. Each of these agreements are contracts or compacts. Rights of the citizens of the government are not abridged, they are retained — at least if the government empowered to act on behalf of its inhabitants are legitimate.

How, then, do we describe the relationships between these levels of government or between competing governments? How do we define the lines over which they may not tread? Let’s take one example: borders. What are borders, other than the territorial lines defining the government which protects the rights of its inhabitants? What do we call a government’s relation to its borders? Territorial rights! Now, of course, these rights are not that of “the government”, but they are the territorial rights of which the individuals supporting that government have ceded to their government to protect.

Likewise, how do we define our US Government’s relationship to the United Nations and the nations of the world? We use the term sovereignty: the inviolability of our government to the others of the world — the statement that our government has “rights”, i.e. lines over which those other governments may not tread.

The nature of the United States Government and its relationship to its constituent States is a tricky one, historically. The United States Constitution — our governing document — is a compact between states, not a contract directly between the federal government and the people. Historically, the people of the several States entrusted their governments — the entities to which they had entrusted their rights for protection — to form a federal republic. One may support the claim — at least until 1865 — that the States retained sovereignty, and that they had contractual RIGHTS as constituent members of that federation.

These rights are not inherent to them, as States. These rights are the rights entrusted to them by their inhabitants, and the rights they are protecting are not the rights of the State as State, but a collective bargaining arrangement to protect the rights of their inhabitants. Regardless of how you define this, though, the rights exercised are contractual rights exercised by the States on behalf of their inhabitants. The States drew a line, and told the United States Government “over this line you may not cross.” For the United States Government to cross that line would allow the State, if it so chose, to exercise its sovereignty and break the contract — secede.

These rights are not without limit, though. We previously stated that government is created by individuals in order to secure their natural rights. But those rights are retained. A government which does not secure those rights — a government in fact which violates them, is not a legitimate government at all and may be disbanded. Likewise, federal governments or supra-national bodies do not have super-natural powers — they are still only as legitimate as the rights of their constituent states (and thus the rights of their constituent inhabitants). If the United States Government attempts to violate the sovereignty of the states in order to violate the natural rights of its constituent inhabitants, it is just as illegitimate as if the individual state takes that action…

…which finally brings me back to Michael’s post!

Specifically, this country is, and always has been, a work in progress. I said it was illegitimate for a federal government to violate the sovereignty of its constituent States and if a federal government were to do so, it would justify secession. However, while Michael says he wouldn’t cry crocodile tears if the South had been allowed to secede, the South’s secession would not have been justified under States’ Rights theory. Why? Because slavery — a State deliberately violating the natural rights of its inhabitants — is not a legitimate government, and thus the Southern States did not have true sovereignty. A government which violates the natural rights of its inhabitants as a matter of design cannot be granted the authority to act on behalf of its citizens.

The Fourteenth Amendment, in the wake of the Civil War, finally codified this statement. Prior to this, the United States Constitution did not have a method for the Federal government to impede the States from abridging the natural rights of its citizens. (Of course, one can infer from this that the Civil War was illegal, but the destruction of slavery in the South can hardly be described as immoral). It should be stated that Michael’s quote from George Wallace was not truly a defense of States Rights. Those rights of States to discriminate by law against their citizens had long been removed via the Fourteenth Amendment. If he truly believed that the right of the State was inviolable (I doubt this to be the case — I personally think it likely that “States’ Rights”, like patriotism, just happened to be the last refuge of a scoundrel), he was simply wrong.

Michael is correct, of course, that in the intervening century, the term “States’ Rights” was used by all manner of racists, supporters of Jim Crow, and people who are “defiant of settled law”. In American politics, terminology tends to have this problem — terms become appropriated by unsavory characters, and the terms themselves pick up unsavory connotations. We “libertarians” constantly bemoan the fact that our previous label, “liberal”, as appropriated by big-government Democrats. We had to abandon the term completely and build a new one. States’ Rights has some of that connotation, but by definition that doesn’t not negate the concept of those rights.

The term “States’ Rights” may, in fact, be coming into a renaissance. As Michael points out, individual states are fighting the Feds on medical marijuana, and California — the state where we both live — has a ballot measure in November to legalize marijuana entirely. This is in direct contravention of the Controlled Substances Act, but more importantly, this is a state protecting its citizens from the overreaches of Washington!

But again, look at the nature of government. A State government that violates the natural rights of its inhabitants is acting illegitimately. At the same time, a Federal government that violates the natural rights of its inhabitants is acting legitimately. In this case, it is right for the inhabitants of a State to pool to their rights collectively — using their States’ rights — to protect themselves from the Federal government on their behalf. Individuals often have little recourse against the Federal leviathan. They need all the help they can get.

Either way, I think that Michael did not prove, as I thought he would attempt, that states don’t have rights. He did make some valid points that the terminology of states rights had been hijacked for the last century by those State governments who wished to protect their racist fiefdoms. But he belied his own point by bringing up the fact that the very same terms are also being used by States to protect the liberty of their inhabitants from Federal overreach.

Stephen Green has an excellent column this week at Pajamas Media where he cautions his fellow libertarians to stay away from the siren call of the “state’s rights” movement:

We need to give up this notion of “states’ rights.” First of all, it’s in bad taste. The phrase used to be code for “Jim Crow.” And while I’m certain that’s not true for 99% of us, we can — and should — do better than to emulate vile racists. Secondly, however, “states’ rights” is a misnomer. It’s an impossible thing. It doesn’t exist, and shouldn’t.

Let me explain.

I remember reading once somewhere that:

All men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

In other words, individuals have rights, and governments are instituted with powers to protect those rights, and are (or ought to be) restricted from abusing them.

With me so far? Individuals have rights; governments have powers.

As Green goes on to point out, the ongoing tension between the state and Federal governments was instituted to protect individual liberty not to give some amorphous entity called a “state” rights over it’s citizens. In fact, the Constitution specifically provides the Federal Government with the power to step in when the states step over the line:

One of the tensions that exists between Washington and the states is that Washington has the duty — the power — to “guarantee to every State in this Union a Republican Form of Government.” And when a particular state government discriminates against 20, 30, 40% of its citizens, then it’s no stretch to argue that that state no longer enjoys a republican form of government. At least not how republicanism is properly understood in this country.

More importantly, we fought a war that pretty much resolved the issue of state’s rights, and afterwords passed an amendment that significantly altered the relationship between the states and the federal government. Whatever the “rights” of the states may have been before the ratification of the 14th Amendment, they were significantly cut back by it’s adoption. So it is pointless to talk about the 10th Amendment in a vacuum as if the 14th Amendment doesn’t exist.

Green closes out with the most important point:

States don’t have rights. Individuals do. It’s time we went about the business of restoring those rights, without alienating a huge constituency which suffered too long without them.

Indeed.

Made by several of the most prominent libertarian scholars out there:

“I think Rand Paul is wrong about the Civil Rights Act,” libertarian Cato Institute scholar Brink Lindsey wrote in an e-mail. “As a general matter, people should be free to deal or not deal with others as they choose. And that means we discriminate against those we choose not to deal with. In marrying one person, we discriminate against all others. Businesses can discriminate against potential employees who don’t meet hiring qualifications, and they can discriminate against potential customers who don’t observe a dress code (no shirt, no shoes, no service). Rand Paul is appealing to the general principle of freedom of association, and that general principle is a good one.

“But it has exceptions. In particular, after three-plus centuries of slavery and another century of institutionalized, state-sponsored racism (which included state toleration of private racist violence), the exclusion of blacks from public accommodations wasn’t just a series of uncoordinated private decisions by individuals exercising their freedom of association. It was part and parcel of an overall social system of racial oppression,” Lindsey said.

“Paul’s grievous error is to ignore the larger context in which individual private decisions to exclude blacks were made. In my view, at least, truly individual, idiosyncratic discrimination ought to be legally permitted; for example, the “Soup Nazi” from Seinfeld ought to be free to deny soup to anybody no matter how crazy his reasons (they didn’t ask nicely, they mispronounced the soup, etc.). But the exclusion of blacks from public accommodations wasn’t like that — not even close.”

“To be against Title II in 1964 would be to be brain-dead to the underlying realities of how this world works,” said professor Richard Epstein of the University of Chicago. “In 1964, every major public accommodation that operated a nationwide business was in favor of being forced to admit minorities.” National chains, he explained, feared desegregating in the South without the backing of the federal government because they feared boycotts, retribution and outright violence.

The problem with the Civil Rights Act, Epstein explained, is “when you say, this is such a wonderful idea, let’s carry it over to disability. At this point, you create nightmares of the first order” in terms of problematic government bureaucracies and baseless lawsuits.

“We have to start with some historical context,” e-mailed George Mason Law professor David Bernstein, who is also a blogger at The Volokh Conspiracy. “If segregation and discrimination in the Jim Crow South was simply a matter of law, federal legislation that would have overturned Jim Crow laws would have sufficed. But, in fact, it involved the equivalent of a white supremacist cartel, enforced not just by overt government regulation like segregation laws, but also by the implicit threat of private violence and harassment of anyone who challenged the racist status quo.”

“Therefore, to break the Jim Crow cartel, there were only two options: (1) a federal law invalidating Jim Crow laws, along with a massive federal takeover of local government by the federal government to prevent violence and extralegal harassment of those who chose to integrate; or (2) a federal law banning discrimination by private parties, so that violence and harassment would generally be pointless. If, like me, you believe that it was morally essential to break the Jim Crow cartel, option 2 was the lesser of two evils. I therefore would have voted for the 1964 Civil Rights Act,” Bernstein concluded.

As I’ve been thinking about this issue since yesterday, I think this is about where I stand on this issue. I stand by what I said when this controversy first broke in that I believe, at least in the abstract, that people should be free to do business or not do business with whoever they want, for whatever reason they want. Additionally, I’m entirely uncomfortable with the tortured reasoning in Heart of Atlanta Motel v. United States and Katzenbach v. McClung, where the Commerce Clause was twisted beyond all rational meaning to justify Title II of the Act.

Instead of engaging in intellectual jujitsu, and doing several harm to concepts such as Federalism and limited government in the process, however, the Supreme Court did have another option; they could have revisited the horribly mistaken decision in The Slaughterhouse Cases:

When it was ratified in 1868, the 14th Amendment added several revolutionary new provisions to the Constitution, barring states from violating the “privileges or immunities” of citizens, or taking anyone’s life, liberty or property without “due process of law,” or depriving people of the “equal protection of the laws.” But the first time it heard a case under that amendment — in the 1873 Slaughterhouse Cases — the Supreme Court basically erased the privileges or immunities clause, dramatically limiting the way the federal government would protect people against wrongful acts by state officials.

That case began when Louisiana passed a law forbidding butchers from slaughtering cattle anywhere in New Orleans except a single, privately owned facility. The beef industry was big business in New Orleans, and the new law put hundreds of butchers out of business overnight. The butchers sued, arguing that the law violated their right to earn a living without unreasonable government interference. Judges had recognized that right as far back as 1602, when England’s highest court declared government-created monopolies illegal under the Magna Carta. The right to earn an honest living came to be recognized as one of the fundamental rights — or “privileges and immunities” — in the common law.

Yet in Slaughterhouse, the Court ruled against the butchers, holding, 5-4, that despite the new amendment’s language, federal courts would not guarantee traditional rights against interference by states. With only minor exceptions, the Court declared, those rights were “left to the State governments for security and protection.”

The decision’s ramifications were profound. In the years after the Civil War, Americans — particularly in the South — needed protection against abusive state legislatures. That was the protection the privileges or immunities clause promised, and that the Slaughterhouse decision eliminated. During the next decade, federal authorities abandoned Reconstruction efforts to protect former slaves, and black Americans were condemned to another century of segregation and oppression.

Ten years later in The Civil Rights Cases, the Supreme Court invalidated the Civil Rights Act of 1875 which would have essentially accomplished the same thing that Title II of the 1964 Act did eighty-nine years later and in the process essentially gutted another part of the 14th Amendment, the Equal Protection Clause. At that time, the sole dissenter, John Marshall Harlan made a prescient observation:

Today it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in their freedom and citizenship. At some future time, it may be that some other race will fall under the ban of race discrimination. If the constitutional amendments be enforced according to the intent with which, as I conceive, they were adopted, there cannot be, in this republic, any class of human beings in practical subjection to another class with power in the latter to dole out to the former just such privileges as they may choose to grant. The supreme law of the land has decreed that no authority shall be exercised in this country upon the basis of discrimination, in respect of civil rights, against freemen and citizens because of their race, color, or previous condition of servitude. To that decree — for the due enforcement of which, by appropriate legislation, Congress has been invested with express power — everyone must bow, whatever may have been, or whatever now are, his individual views as to the wisdom or policy either of the recent changes in the fundamental law or of the legislation which has been enacted to give them effect.

But for a different outcome in The Slaughterhouse Cases and The Civil Rights Cases, the entire system of mandated racial segregation known as Jim Crow would have been under direct legal assault at the time of it’s birth.

It’s also worth noting that Plessy v. Ferguson involved a Louisiana law that was designed to prevent the Pullman Company from offering equal seating options to blacks. That, in fact, was the entire purpose of Jim Crow laws. Even if, for example, the Woolworth’s in Greensboro, North Carolina had wanted to serve the four black college students who sat down at their lunch counter on February 1, 1960, the laws in place at the time told them that they couldn’t. Racial segregation in the South wasn’t a product of the free market, it was the product of a state imposing racial prejudices under the threat of criminal prosecution. For that reason alone, it was a violation of the 14th Amendment and the Federal Government was entirely justified in trying to bring it down.

Now, none of this means that racism didn’t exist in the South. Obviously it did, otherwise Jim Crow never would have been imposed in the first place. However, by passing these laws it’s fairly clear what that the intent of the Southern legislatures was to prevent the newly freed blacks from participating in the economic life of the South by denying them access to jobs, business opportunities, and trade while at the same time denying them access to the polls so that they wouldn’t be able to have their voice heard at the state capital. At the same time, it prevented other whites, as well as businesses from other parts of the country, from any efforts to break down the walls of segregation.

Even though the arguments that were used to justify the Constitutionality of the Act involved tortured reasoning under the Commerce Clause, the results would have been the same had the Supreme Court not so blatantly ignored the plain intent of the 14th Amendment so many years ago. So, yes, I think that Rand Paul’s criticisms of Title II are correct in some sense, and that the question of how far government should be permitted to regulate private affairs is an issue that needs to be debated more closely. That said, it’s fairly clear that the Civil Rights Act of 1964 was proper, and that it’s long past time that the Privileges and Immunities Clause was given it’s full force and effect.

Originally posted at Below The Beltway

The challengers invoke and seek to build upon the Rehnquist court’s “federalism revolution” that flowered briefly during the 1990’s. In a series of 5-to-4 rulings, the court took a view of Congressional authority that was narrower than at any time since the early New Deal. The court struck down a federal law that barred guns near schools, on the ground that possession of a gun near a school was not the type of activity that the Constitution’s Commerce Clause authorized Congress to regulate. It ruled that Congress could not require states to give their employees the protections of the federal laws against discrimination on the basis of age or disability. It ruled that the federal government couldn’t “commandeer” state officials to perform federal functions like federally mandated background checks of gun purchasers.

As Greenhouse points out, though, the Roberts Court is very, very different from the 1990s Rehnquist Court when it comes to issues regarding the power of the Federal Government:

Chief Justice John G. Roberts Jr. is not William Rehnquist, and Justice Samuel A. Alito Jr. is not Sandra Day O’Connor. John Roberts has made his career inside the Beltway ever since coming to Washington to clerk for Rehnquist. As for Sam Alito, I don’t believe that apart from a brief part-time gig as an adjunct law professor, this former federal prosecutor, Justice Department lawyer and federal judge has cashed a paycheck in his adult life that wasn’t issued by the federal government. Nothing in their backgrounds or in their jurisprudence so far indicates that they are about to sign up with either the Sagebrush Rebellion or the Tea Party.

Chief Justice Roberts appears particularly in tune with the exercise of national power. One of his handful of major dissenting opinions came in the 2007 case of Massachusetts v. Environmental Protection Agency, in which the court ordered the federal agency to regulate global warming or give a science-based explanation for its refusal to do so. That case was brought by a group of coastal states, which argued that climate change was lapping at their borders. Chief Justice Roberts objected that the states should not have been accorded standing to pursue their lawsuit. He denounced the “special solicitude” that the court’s majority showed the state plaintiffs. An early Roberts dissenting vote, just months into his first term, came in Gonzales v. Oregon, a 6-to-3 decision rejecting the United States attorney general’s effort to prevent doctors in Oregon from cooperating with that state’s assisted-suicide law.

And, as Damon Root points out, Antonin Scalia can’t be trusted on this issue either:

It’s also worth noting that conservative Justice Antonin Scalia did his part to thwart that “federalism revolution” by siding with the majority in 2005’s disastrous Gonzales v. Raich, which held that the intrastate cultivation and consumption of marijuana somehow still counted as interstate commerce, resulting in the Court striking down California’s popular medical marijuana law.

I noted last week that, as a matter of law, the odds are against the cases challenging the health care law. As Greenhouse and Root demonstrate, it also appears that we’re dealing with a Supreme Court that is not at all inclined to be sympathetic to arguments that limit the power of Congress.

Right now, I would say that the only vote that could probably be counted on to declare ObamaCare unconstitutional is Clarence Thomas’.

TALLAHASSEE, Fla. — Attorneys general from 13 states sued the federal government Tuesday, claiming the landmark health care overhaul bill is unconstitutional just seven minutes after President Barack Obama signed it into law.

The lawsuit was filed in Pensacola after the Democratic president signed the bill the House passed Sunday night.

“The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying health care coverage,” the lawsuit says.

Legal experts say it has little chance of succeeding because, under the Constitution, federal laws trump state laws.

Florida Attorney General Bill McCollum is taking the lead and is joined by attorneys general from South Carolina, Nebraska, Texas, Michigan, Utah, Pennsylvania, Alabama, South Dakota, Idaho, Washington, Colorado and Louisiana. All are Republicans except James “Buddy” Caldwell of Louisiana, who is a Democrat.

Some states are considering separate lawsuits and still others may join the multistate suit.

I assume we will hear that Ken Cuccinelli has filed suit in the Eastern District of Virginia before the day is out.

As I’ve said, I am not optimistic about the ultimate outcome in these cases, but it will be interesting to watch them proceed through the system.

Here is the pleading itself:

Attorneys General suit on health care

Update: Make that fourteen states, Ken Cuccinelli has filed suit on behalf of the Commonwealth of Virginia.

Last night’s passage of the greatest expansion of the federal government since the Great Society is a sad day for our country, not only because it may bankrupt our future, but also because we have no recourse to the Constitution. Our Constitution was elegantly designed to protect individuals from too much concentration of power in any one source, but the Supreme Court has evolved into a body that has protected and even facilitated the modern regulatory state at the expense of our founding principles. The optimism of state attorneys general and others who hope to challenge the constitutionality of this legislation is admirable, but such challenges are not likely to be successful.

But what, you might ask, about what seems like it might be the most vulnerable part of the health care bill, the individual mandates ?

Well, as Cline points out, that may actually be the weakest ground of all:

Despite this patent overreach by Congress, the Supreme Court’s flawed jurisprudence on this issue probably permits it. The government will argue that it has the authority to impose the individual mandate under the Commerce Clause of the Constitution, which permits Congress “to regulate Commerce … among the several States.” Supreme Court precedent has interpreted the Commerce Clause to permit Congress to regulate and prohibit all sorts of economic activities that in the aggregate substantially affect interstate commerce.

In the 1942 case Wickard v. Filburn, the Supreme Court authorized the broadest federal power to date, concluding that a farmer growing wheat for his own use was not exempt from federal caps on wheat production that had been established by the government to artificially drive up the price of wheat. The fact that the farmer was growing wheat for his own use meant he would not purchase it on the open market. The Court held that his failure to purchase wheat in the market, taken in the aggregate, would have a substantial effect on interstate commerce. Thus, the Court laid the groundwork for Congress to regulate nearly any activity with a weak connection to economic activity, and for years Congress did not even bother to establish the basis for its Commerce Clause authority.

The Supreme Court had the opportunity to overturn this precedent in Raich v. Gonzales, the 2005 medical marijuana case, but balked. In that case, the Court decided that it was within Congress’s Commerce Clause power to prohibit individuals from growing medicinal marijuana for their personal use. In reaching this conclusion, the Court affirmed that activity that does not fall under the Commerce Clause alone can be reached as part of a broader scheme to regulate interstate commerce. This case was blow to those of us who thought the opinions in Lopez and Morrison signaled that the Court was willing to scale federal power back to something closer to the Constitution’s original intent.

The individual mandate can be distinguished from these cases, as it compels economic activity where Wickard and Raich did not. But what Raich showed is that the Supreme Court does not have the will to limit federal power when Congress has made the most modest of showings that the activity has economic effects. The individual mandate is likely to be upheld as part of a legislative scheme that regulates economic activity, and the insult to our constitutional government, designed to limit the federal government to enumerated powers, will have received judicial sanction.

Moreover, as Cline goes on to point out, the Court may not even need to reach the Commerce Clause issue. The Solicitor General, who will be arguing the case in favor of upholding the law, will clearly argue that the mandate and it’s penalty provision are, in reality, a tax, which would be governed under the General Welfare Clause. If that’s the case, then the challenge is pretty much doomed:

The last time a penalty was deemed an unconstituional tax by the Supreme Court was 1922, and since then the Court has permitted taxes on gambling, tobacco, alcohol and a number of other disfavored activities. Should the Commerce Clause prove to be an indefensible basis of authority, the General Welfare Clause would likely be another source of authority. The current Supreme Court, which time and again demonstrates its willingness to uphold the modern regulatory state to legal challenge, is unlikely to delve into a nearly century old line of cases limiting Congress’s ability to impose penalties as taxes.

If they’re not going to over-rule a clearly wrong 68 year old case, they sure aren’t going to overrule one that’s more than a century old.

Over at The Volokh Conspiracy, Orin Kerr gives odds on how likely a SCOTUS ruling against ObamaCare actually is:

With all this blogging here at the VC about whether the courts will invalidate the individual mandate as exceeding Congress’s Article I authority, I thought I would add my two cents by estimating the odds of that happening. In my view, there is a less than 1% chance that courts will invalidate the individual mandate as exceeding Congress’s Article I power. I tend to doubt the issue will get to the Supreme Court: The circuits will be splitless, I expect, and the Supreme Court will decline to hear the case. In the unlikely event a split arises and the Court does take it, I would expect a 9–0 (or possibly 8–1) vote to uphold the individual mandate.

Blogging about such issues tends to bring out some unhappy responses, so let me be clear about a few things: (a) I don’t like the individual mandate, (b) if I were a legislator, I wouldn’t have voted for it, (c) I don’t like modern commerce clause doctrine, (d) if I were magically made a Supreme Court Justice in the mid 20th century, I wouldn’t have supported the expansion of the commerce clause so that it covers, well, pretty much everything, (e) I agree that the individual mandate exceeds an originalist understanding of the Commerce Clause, and (f) I agree that legislators and the public are free to interpret the Constitution differently than the courts and to vote against (or ask their legislator to vote against) the legislation on that basis.

But with all of these caveats, I’ll stand by my prediction.

I agree with Kerr.

That doesn’t mean that the law shouldn’t be challenged in Court. It should. These arguments need to be made and, even if the challenges are ultimately unsuccessful, they will bring to the forefront issues about the size and scope of government, and the extent to which the limitations of the Constitution have been exceeded that maybe, just maybe, the American people will wake up.