‘Conservatives’ Remain Shamefully Silent on Unconstitutional Federal Gaming Ban

The strength of the movement to reinvigorate the Tenth Amendment comes from the states and not from Washington, DC where, unfortunately, even those who wrap themselves in the Constitution often fall short in their defense of it. That is especially true when political allies and campaign supporters demand the federal government “do something,” even it tramples on the Tenth Amendment. That’s exactly what is happening with the campaign to outlaw Internet gaming.

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The Ninth Circuit on Foreign Relations Federalism

The Ninth Circuit (Judge Harry Pregerson writing) had an interesting recent decision regarding foreign relations federalism in Cassirer v. Thyssen-Bornemisza Collection Foundation. The case involves California Code of Civil Procedure § 338(c)(3), which extends the statute of limitations for suit for the recovery of fine art against a museum, gallery, auctioneer, or dealer.

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A Question for Limited Government Centralizers

The phenomenon that continues to amaze me is how we who believe in decentralization often find ourselves in political agreement with people who hold completely different conceptions about the correct role of government. Conversely, those who agree with us politically are often the harshest critics of our insistence on decentralization.

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The Fallacies of Marshallian Nationalism

At Law and Liberty, Adam Tate: The Fallacies of Marshallian Nationalism (reviewing The Fallacies of States’ Rights by Sotirios A. Barber (Harvard University Press 2013)).  From the introduction:

In this spirited polemic, Prof. Sotirios Barber defends the American nationalist constitutional
tradition, particularly the thought of John Marshall, from the attacks of both states’ rights advocates (who he calls “dual federalists) and process federalists, those who believe national power should be used in expansive ways to protect individual rights without working to establish one specific American society.

Barber uses Marshall’s 1819 decision in McCulloch v. Maryland as the starting point for nationalist analysis. Hence, he mentions only briefly the important clashes between nationalists and their opponents during the first three decades of the Early Republic. In explaining the rationale behind what he calls “Marshallian federalism” Barber is at his best. Marshall advocated an “ends-oriented constitutionalism.” (16) He believed that the US government was limited in the sense that the government was confined to seek the ends set forth in the Constitution. Marshall’s “positive understanding” (32) of government power sought to help secure the people’s happiness and to instruct them as to their “true interests.” (19) Marshall defended “implied national powers, liberal construction of national power, and national legislative supremacy.” (52) In the midst of this celebration of expansive power, Barber admits, “Under the right circumstances, any and every area of social life could become subjects of concern to policy makers working for ends like national security and prosperity.” (44) Barber then scales back this claim by insisting that Marshallian federalism includes a “rule against pretexts,” meaning that Congress could not pass laws “whose actual motivating purpose is different from its stated purpose.” (68-69) This would guarantee limited “in the sense of properly motivated” government. Barber clearly identifies the presuppositions of “Marshallian federalism”: “a national community that predates the Constitution,” the responsibility of “the national government… for facilitation or securing” the “community’s controlling values,” and the denial that “individual states can lawfully avoid the burdens of pursuing these values.” (50) Nationalism presupposes a certain kind of American society – a Lockean liberal society (65) – and uses the power of the federal government to enforce it. Barber holds that the ends of Marshall’s nationalism “include national security, national prosperity, equal opportunity, and a secular and rationalist political culture.” (51) He mentions later that current Marshallian federalists should be motivated “by the values of today’s progressive liberals.” (68)

(It gets substantially more critical as it goes along…)

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Jerry Brown to Feds: ‘We Can Handle Our Own Prisons’

In early summer, California Governor Jerry Brown and state corrections chief Jeffrey Beard were in great danger of being held in contempt by three federal judges for willful defiance of a court order requiring the administration to meet a Dec. 31 deadline for reducing the prison population in California.  Brown had previously asked the federal government to back off on federal mandated prison requirements, “We can handle our own prisons,” he said.

Can he constitutionally say no to the federal government?

Yes, and he should.

Besides the obvious, that Californians do not want their convicts returned to society too easily, voiding the acts of juries and judges after they spent thousands of hours deciding what is just with respect to their crimes and their danger to society, federal enforcement of such is unconstitutional.  The Constitution gives the federal government only 17 grants of power, listed in Article I, Section 8, and managing federal prisons is not one of them. Nor has that power been added to the Constitution by way of amendment.  In fact, the Constitution names only four crimes that Congress has the power to penalize: counterfeiting (Article I, Section 8, Clause 6), piracy on the high seas, offenses against the law of nations (Art. I, Sec. 8, Cla. 10), and treason (Art. III, Sec. 3, Cla. 2).  Outside these four crime areas there can be no federal law or crime without a new amendment.  All other areas are entirely under state jurisdiction as per Amendment 10.

If the governor wished to follow the Constitution as designed, he could designate one or more facilities as being federal, move all prisoners that had committed crimes in the above four areas to that facility and be fully compliant with federal law.  With respect to the other prisoners, he might notify the federal government again that “We can handle our own prisons” and that the federal government has exceeded its Constitution jurisdiction.  This is a state function per the Tenth Amendment.  He should publicize his constitutional arguments with his sister states and, if possible, enlist similar action on their parts.  Some of us would love to assist a Democratic governor in leading the charge back to the Constitution.

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Federalism is for Liberals

In a recent article in The Atlantic, Emily Bazelon makes the claim that “states’ rights are for liberals”, citing the examples of state support for marriage equality and the legalization of marijuana as examples.  Well, guess what, Emily.  You’re right!  States’ rights, or federalism, definitely is for liberals.

Of course, federalism is also for conservatives.  And libertarians.  And socialists. Federalism is really for anyone who doesn’t think that a group of central rulers are best-equipped to make decisions that affect the lives of 300 million people spread out over thousands of miles with differing priorities and values.

That the American left is realizing the value of federalism is a welcome change from the long-held misconception that a belief in decentralization was the exclusive calling card of conservatives (and for recognizing this we will even forgive Bazelon for continuing the left’s fascination with trying to link the principle of federalism with racial bigotry, which has been repeatedly refuted).

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