Legislation in Texas House would re-affirm State Sovereignty

By James Aalan Bernsen
TexasRepublicNews.com

Texas legislators are jumping onto a growing bandwagon across the country of states re-affirming their constitutional rights under the 10th Amendment. Although it is unclear what, if any, practical effect the legislation will have, it highlights an issue many opponents of centralized government authority have been complaining about for decades.

Rep. Brandon Creighton (R-Conroe) has filed HCR 50 (see text here) to make a symbolic declaration to the U.S. Congress that Texas believes the federal government has overstepped its bounds in violating state sovereignty.

The 10th Amendment to the U.S. Constitution states: 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.

While libertarians and many conservatives argue that the 10th Amendment prohibits the federal government from exercising any power “not delegated,” many of the federal government’s current powers, however, clearly exceed that mandate strictly stated. Courts have supported the efforts to expand federal power by interpreting the Commerce Clause of the Constitution broadly to cover a wide range of public policy issues.

The reassertion of the 10th Amendment on strict-constructionist terms, however, would not be explicitly liberal or conservative. Although it would likely return to conservative states the right to ban abortion, for example, liberal states would likely have the freedom to legalize certain drugs – provided they were not sold outside the state, where they would clearly fall under the federal government’s powers to regulate interstate commerce.

Creighton said that he filed the legislation in response to what he describes as a groundswell of opposition to “big government” policies such as the economic stimulus bill.

“I constantly hear comments in my district in Montgomery County,” he said. “People are frustrated with the federal government’s efforts to step outside of their bounds.”

Creighton said many local governments are bothered by legislation that spends money and therefore triggers requirements of their governments to match the funds.

The “sovereignty bill” has gained momentum in about a dozen states. New Hampshire’s legislature is debating a resolution “affirming states’ rights based on Jeffersonian principles” – referring to Thomas Jefferson’s opposition to concentrated federal power. Jefferson, who was the U.S. minister to France at the time of the drafting of the constitution, was not present for the debate on that document, but his spiritual heir, James Madison, was the key author of the document.

The legislation filed in Washington State quotes Madison himself to make their case:

“The powers delegated to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, [such] as war, peace, negotiation, and foreign commerce. The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people.”

Creighton said that the criticism that the legislation “has no teeth” is disproved by the simple number of states that have embraced the idea.

“In aggregate, if all the states are on board, congress will have to take notice,” he said. “It’s my opinion and the opinion of my constituents that states and local communities should stand up for their rights.

Creighton, who closely followed the progress of a similar bill in Oklahoma before filing his legislation, said the idea behind the 10th Amendment is simple and has been lost over time. Government, he said, that is closest to the people, is more responsive and more representative of the people.

“Just about everybody knows their mayor and can sit down with him,” he said. “Very few people have the opportunity to sit down and talk to their president.”

Creighton said that critics will likely attack the resolution, saying that it’s an attempt to resurrect nullification or secession or something along those lines. All this bill does, he said, is simply re-iterate “a thing we already know, and that is that the 10th Amendment limits the power of the federal government.”

The bill has two official joint authors, Rep. Leo Berman (R-Tyler) and Rep. Bryan Hughes (R-Mineola). Creighton said he has received a very large number of representatives also signing on as co-sponsors, mostly Republican but also including a number of Democrats.

Last week, following a press conference, a reporter for this publication observed a House member pleading for the final joint-author slot. The member told Creighton that “there is no single issue in my district that I’ve heard about more than this.”

Here is a partial list of some of the states which are considering similar legislation:

New Hampshire

http://www.gencourt.state.nh.us/legislation/2009/HCR0006.html

Arizona

http://www.azleg.gov/FormatDocument.asp?inDoc=/legtext/49leg/1r/bills/hcr2024p.htm

Washington State

http://apps.leg.wa.gov/documents/billdocs/2009-10/Pdf/Bills/House%20Joint%20Memorials/4009-State%20sovereignty.pdf

Oklahoma

http://www.ok-safe.com/files/documents/1/HJR1089_int.pdf

Missouri

http://www.house.mo.gov/content.aspx?info=/bills091/bills/HR212.HTM

Michigan

http://www.legislature.mi.gov/(S(0o5o4ufeqjo3qhzjcxluaxf0))/mileg.aspx?page=GetObject&objectname=2009-HCR-0004

Montana