As it tends to do when not in political control in Washington, the Left has rediscovered the power of state sovereignty. That doctrine is being used to resist the new administration’s federal immigration policy in a way that’s identical, in formalistic terms, to the Right’s tactics during the early days of the Obama administration—albeit in service of an opposite outcome.
Rarely does a unanimous Supreme Court announce a sea change in the balance of power between the states and the federal government. But nearly a year ago, on June 16, 2011, the Court did just that. In Bond v. United States, the Court effectively extended an invitation to strategic lawmaking and litigation under the Tenth Amendment. Constitutionalists should accept the Court’s invitation.
The unanimous opinion penned by Justice Anthony Kennedy could signal the beginning of the end of the federal government’s inexorable expansion into areas the Tenth Amendment reserves exclusively to state and local government, such as local criminal law, health care and firearms regulation. With unusual clarity, the Court ruled our system of dual sovereignty denies “any one government complete jurisdiction over all the concerns of public life.” It underscored that the primary reason for dividing power between the states and the federal government is to protect individual liberty; observing, “Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity . . . Federalism secures the freedom of the individual.”
In view of these principles, the Court ruled that individual citizens can sue the federal government when it violates the Tenth Amendment. But the Court went even further than that—it declared that the states themselves may advance the goals of federalism through “positive law.” Bond expressly declared that our system of federalism empowers “[s]tates to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power.” And all of this took place within the context of a case that challenged a federal law stemming from an international treaty on chemical weapons—a context in which federal power would otherwise seem to be at its zenith under modern case law.
A Thought Experiment Inspired by James Madison and Michael B. Rappaport More than two hundred years ago, in his report on the Virginia Resolutions, James Madison observed that the states could have overturned the Alien and Sedition Acts by exercising their Article V power to seek a constitutional amendment for that “object.” Later, in his 1830 “Letter on Nullification,” Madison urged states to use their Article V power to protect their sovereignty against federal overreach rather than employing the futile gesture of nullification. Just imagine if the 28 states currently challenging the constitutionality of the Patient Protection and Affordable Care Act (PPACA)…
Michael Rappaport offers up some interesting, lawyerly suggestions as to how to stop what he claims is the Constitution’s incessant drift toward centralization and nationalism. His suggestions center on revising the constitutional amendment process so that it might be more accommodating to state interests.
I am very grateful for Bradley Watson and Nick Dranias for their thoughtful comments on my Liberty Forum Essay on the problems of the national convention amendment process and how to fix them. I also feel fortunate that these two responses were paired. While both Watson and Dranias find aspects of my argument worthy of…