New Hampshire’s sovereignty resolution makes the case especially pointed:
[T]he several States composing the United States of America, are not united on the principle of unlimited submission to their General [federal] Government . . . and . . . whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force. . . .
The trick, of course, will be to make the theoretically void the practically void. States rights, though argued from Jefferson’s time onward, have lost traction with the rise of the American nation state. Nowadays, of course, state and local governments find themselves relying on the federal government’s illegal largesse, so breaking free becomes especially difficult for politicians who like to spend money. For these and other reasons, federalism, with it the doctrine of delegated powers, is honored more often in the breach than in the act.
And these resolutions are, at present, declarations of intent. But when shove comes to push us around, what will happen?
The biggest recent showdowns have occurred over medical marijuana. The people of states like California and Oregon (and many others), taking up their powers through petition and the citizen initiative, have instituted laws more lenient on one psychoactive drug than the federal government has, in effect legalizing cannabis for certain uses. The federal government retaliated, arresting citizens distributing the drug legally by state law. A number of these legal operators have been jailed in this individual rights/state powers/ federal usurpation war.
A related issue confronts the delegated power doctrine perhaps more directly, more explicitly as a principled issue of state prerogative. The issue is about medicine. Not puff-puff medicine, but socialized medicine.
While the Democratic-controlled Congress, under the leadership of the much-admired (but increasingly disappointing) President Barack Obama, is pushing for a meddlesome “universal coverage” medical policy package, a lot of people are becoming increasingly apprehensive. In Arizona, politicians are trying to do something about it.
Last year, an initiative proposition, Proposition 101 — the Freedom of Choice in Health Care Initiative — went down to a narrow defeat. The defeat was so narrow that proponents convinced the Arizona legislature to repackage the measure’s ideas into a referendum to be held next year, the Arizona Health Insurance Reform Amendment.
As I discussed in a recent Common Sense radio spot, this proposed constitutional amendment has some interesting features:
The first plank states that “a law or rule shall not compel, directly or indirectly, any person, employer or health care provider to participate in any health care system."
The second plank says that no one shall be fined for paying — or accepting payments — for otherwise lawful health care services.
These fly in the face of our federal government’s current and demonstrated meddling intent.
What I like about this measure, especially, is the twist it gives on the Tenth Amendment. The Tenth Amendment does not just defend states’ powers against federal government’s expanding powers. It defends the people’s powers, too. And what can those be?
Well, the Arizona measure began as an iniatiative and now goes to the general ballot as a legislative referral. It recognizes the people’s power to make law. It recognizes the people’s sovereignty. Just like the Tenth Amendment’s recognition of “powers . . . reserved . . . to the people.”
And it is placing this people power directly against the federal government.
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