Editor’s note: I have been swamped with grad school for lo these many months. I would love to be posting more content right now, but I have other commitments. My brother, James Williamson, an Ohio native but current Nevada resident, has submitted this addition to his “Imminent Rebellion” series of guest blog articles at Buckeye RINO. The other guest blog articles he’s written in the Imminent Rebellion series are linked here, here, here, here, here, and here. –DJW
Throughout this series I have addressed the subject of the growing imbalance of power between the states and the federal government. Until this installment I have mostly focused on causes and not spent much time on solutions. Not wanting to be an all-problems-and-no-solutions guy I am now going to set forth my plan for restoring the balance. (Readers beware! Some of these ideas may be considered radical!)
Before I get started I want to clarify that “states’ rights” is a misnomer. States don’t have rights. Individuals have rights. States have sovereignty. Their sovereignty is limited but they do have sovereignty that is delegated to them by the people. The federal government also has sovereignty but it is delegated to it by the states. (I have elaborated on this subject in greater detail in a previous blog.)
The curious part about all of this is that even though I have argued that the states, collectively, are superior to the federal government, federal laws supersede state laws and even state constitutions. This is clearly stated in the US Constitution itself:
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. (Article VI)
So if federal laws are superior to state laws then how is it that the states are collectively superior to the federal government? There are essentially two parts to the answer.
1. The federal governments power was instituted by the states and is limited by the US Constitution, which reserves all non-enumerated powers to the states (see Amendment X). This is of particular interest now since the US Supreme Court has recently heard oral arguments on the Patient Protection and Affordable Care Act, or “Obamacare,” and the Arizona SB 1070. The Supreme Court’s decisions on these two cases may help stem the tide on the expansion of federal power and reassert the sovereignty of the states and the people. However, this is highly dependent on a very small group of people appointed by the President. For a more robust solution less dependent on the capriciousness of a group of nine people appointed to their positions for life by the President we must look further abroad.
2. The US Constitution can be amended by the states independent of any federal action.
What!!?? The states can change the Constitution without Congress!!?? Say it isn’t so!
It is so. Not only can they amend the Constitution, they could also repeal it if they wished. There are some that may call this claim ridiculous and that the Civil War has proven that the Union cannot be dissolved and that the federal power is superior to the states. Not so. The Constitution itself says otherwise:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. (Article V)
Note that there are two methods of proposing amendments: one that involves Congress and one that does not. The several states can call a “Convention for proposing Amendments…” which become binding “when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof…” So there is a path by which the states can alter (or even abolish, should they so choose) the US Constitution without any Congressional involvement. Since we are talking about limiting federal power, this method must be used because Congress is not really interested in relinquishing their own power and would never propose an amendment that would further restrict the federal government’s power. After all this is their livelihood we are talking about here…
So what would we propose in these state conventions that would curtail the ever expanding federal power? Besides repealing the 16th and 17th Amendments I would propose the following four amendments:
The repeal amendment. This has already been proposed in the state of Virginia. The proposed text reads:
“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”
This would be a very effective tool for states to eliminate statutes or executive orders that are not in the best interest of the states. If this amendment were effective now the several states could have already repealed “Obamacare”. In theory they could have done so the next day. Opponents say that this would create chaos by allowing the states to effectively nullify federal legislation. On the surface it would appear to be so but garnering a 2/3 vote from the state, while less stringent than the ¾ needed for amendment, would not be an easy task and any law would have to be deeply unpopular with the state legislatures to be put in danger.
The recall amendment. Almost all states in the union have a method for recalling their representatives. That includes state legislators, executives, and judiciary. Many states even have provisions for recalling their US legislators. There is, however, no provision for recalling any US official in either the executive or judicial branches. I would propose something like this:
“Any officer of the United States including the President of the United States may be removed from office by the several states for failure to uphold their oath to support this constitution, and such removal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose. All vacancies shall be filled in accordance with this constitution and federal laws”
Note that I would apply a less stringent standard than that of impeachment. An officer (including the President) of the United States can only be impeached for “Conviction of, Treason, Bribery, or other high crimes and misdemeanors”. (Article II, Section 4). The reason is that failing to support the Constitution is not necessarily a criminal matter but in large part a political one. An officer may not be guilty of any high crimes or misdemeanors and yet not support the Constitution, which they have taken an oath to do. By removing those who are derelict in their duty, the states would have more direct control over the destiny of the Union as a whole.
This particular amendment is one that I would say may be the most urgent. We now have a President of the United States who has ramrodded a law through that will bankrupt the states (Obamacare), sued a state to get it to change its laws (Arizona), and refused to enforce a law duly enacted by Congress and signed by a previous president because he disagrees with it (Defense of Marriage Act). Today he is saying that the states should decide the issue and the federal government should stay out. Who knows what he will be saying tomorrow? One thing is for certain; our current president does not play nice when he disagrees with someone or some organization. A lot of damage can be done in four years. More can be done in eight. If someone has no fear of retribution a lot can be done in say… three months?
The Congressional compensation amendment. While Congress determining the compensation of the executive and judiciary may not be a conflict of interest, dictating their own pay certainly is. Why a congressman or senator can retire after only five years of service and receive a pension for life is painfully obvious…. And shameful. I would propose something like this:
“Compensation for legislators representing the several states shall be determined by the legislatures of the respective states. All compensation shall be paid out of the treasuries of the respective states according to the laws of that state.”
Now we are getting radical. Since we no longer have direct election of senators the states have lost control of their legislators. By taking control of the purse strings of the legislators each state can decide how lucrative the compensation for their representation should be. This would restore some (but not all) of a state’s voice regarding its representatives.
The land ownership preemption amendment. The last amendment that I would propose would prohibit the federal government from owning any land within state boundaries.
“The United States may not own any land located within any state boundary. A state may allow the United States to own real property exclusive of land for the use of the executive or judiciary provided that the state grants the United States ownership thereof. Any state that prohibits ownership of real property by the United States shall provide the United States facilities adequate to perform the functions required by the legislature, executive, or judiciary. All real improvements required by the United States shall be funded by the United States and may be contracted by the same.”
OK, so this one may need some more work on the wording but the idea is fairly simple. Don’t let the federal government own any land within state boundaries. Why? Remember the Civil War? The federal government had military bases on land they owned in some of the southern states. Not only that, I really don’t like the BLM.
I realize that amending the constitution is not something to take lightly but it is the only way to restore the balance of power between the states and the federal government without revolution or total economic collapse. At least, it is the only way that I know of. If there are any better solutions out there I am open to them but if we do not restore it soon the states could lose what little sovereignty they have left. Once that happens, it is a small matter to take the remaining vestiges of sovereignty left to the people.