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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Do you believe in self-rule?

Do you believe in self-rule?  Can people determine for themselves how to live and what kind of governmental system that they will live under?

Sure you do!

Right?

But are you sure?

Please, consider the following questions:

Should the federal government be involved in regulating marijuana?

Should the federal government be involved in regulating other drugs?

Should the federal government establish a central bank?

Should the federal government declare anyone an enemy combatant without due process?

Should the federal government regulate marriage: gay or straight?

Should the federal government take either the Pro-Choice or Pro-Life stance on abortions?

Should the federal government regulate guns?

Should the federal government interfere in the health care market?

Should the federal government interfere in education?

If you answered “Yes,” to any of these questions, then on some level you don’t believe in the concept of self-rule.  Therefore, you are imposing your values or morals on others who might not share them.

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To Protect the Second Amendment, Pennsylvanians Rediscover the Tenth

After the flurry of new legislation introduced in the Pennsylvania General Assembly in 2013, gun owners should consider sprucing up their spring wardrobes with Tenth Amendment t-shirts and hats.

In mid-January, State Representative Daryl Metcalfe proposed the Right to Bear Arms Protection Act (HB 357) which nullifies all federal firearms laws adopted after December 31, 2012. HB 357, which provides criminal penalties for attempted enforcement of unconstitutional gun laws in Pennsylvania, amassed 67 co-sponsors in the last month.

Following closely on the heels of HB 357, State Representative Matt Gabler introduced the Firearms Freedom Act (HB 475) which prevents any federal regulation of firearms and ammunition manufactured and sold within Pennsylvania’s borders. Citing the 9th and 10th amendments as valid consideration for Pennsylvania entering in the union compact in 1787, HB 475 draws a line in the sand against federal laws that are offensive to intrastate commerce and Pennsylvania and federal constitutional guarantees of gun rights. HB 475 garnered 49 cosponsors in the last three weeks.

Despite the popularity of both pending nullification bills, several Republican and Democratic state legislators have refused to join as cosponsors, invariably citing the Supremacy Clause for the proposition that federal laws are supreme and only federal courts can say otherwise.

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Surprise: Law Professor Misinterprets Supremacy Clause

Have you ever read an article that you were not sure what stance the author takes on the subject but presents both sides of the argument at once? I had the distinguished experience recently when I was reading the article titled “Sheriffs, State Lawmakers Push Back on Gun Control” on the Newsmax website (see: http://www.newsmax.com/Newsfront/Gun-Control-Pushback/2013/01/17/id/471825). It was a little confusing until I got about half way through it and read a quote by Sam Kamin.

Sam is a constitutional law professor at the University of Denver. One would think that if someone was a law professor that they would actually know and understand the law. Or in this case, a constitutional law professor – who should then know and understand the constitution. It is highly unfortunate when people like Sam misspeak about a subject. Their title gives them some credibility so people think what they say is true because they are supposedly an “expert”. But, when they make a mistake it is still a mistake.

The Supremacy Clause of Article VI, Clause 2 reads:

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, anything in the constitution or laws of any state to the contrary notwithstanding.

Sam makes the comment that state legislatures can pass any laws they want but that the Supremacy Clause of the Constitution makes such actions unconstitutional. He further states that when there is a conflict between state and federal law, the federal government is supreme. Nothing could be farther from the truth. His blanket statement implies that the state laws are not necessary and state governments are not necessary because the federal government and its laws are supreme.

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Left and Right Agree to Disagree

After an embittered presidential election, a never-ending kabuki on Washington finances, and now a fierce debate over property rights, many would be surprised to know that members from opposite sides of the political spectrum have found some common ground. Betsy Woodruf at National Review Online sure was. She was shocked to find agreement between the Republican Governor of Illinois, Mitch Daniels, and Tom Dickenson of Rolling Stone magazine regarding medical marijuana and federalism. Both, it seems, favor letting the states determine their own drug policy, even though they may not agree on what each state ultimately decides.

First, note that agreement between the two parties happens more often than not. In principle they all agree on war, debt, entitlements, taxation, police statism, drones, the central bank, socialistic healthcare, prohibition, and many other issues. Of course they disagree on just how much debt there should be; if the military ought to bomb the people of third-world countries or drop bombs and machine-gun them; and whether individuals should forfeit 35 percent of their income or only 33 percent. Some diversity of thought.

But what’s noteworthy about this particular case is that each can agree because neither is trying to force the other into submitting to a single policy. Here we see one of the great things about decentralized government: it tends to reduce conflict by allowing various groups to “live and let live.” This is isn’t possible when all policy decisions are made by one body, when a polity becomes too big.

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Nullify Term Limits?

Term limits are one of most popular political issues of the day.  Most think of achieving this with a Constitutional Amendment, but there is another way: with  nullification.

Before 1995, states were legislating term limits.  Then in Inc. v. Thornton, 514 U.S. 779,(1995) in a 5 to 4 split decision, the Supreme Court ruled term limits unconstitutional. Their reasoning was that since the U.S. Constitution imposed some qualifications on Congress people, such as age restrictions and citizen requirements. The states could not legislate additional requirements.

In a well reasoned and clear statement for federalism, Clarence Thomas dissented with, “It is ironic that the Court bases today’s decision on the right of the people to ‘choose whom they please to govern them’.” Under our Constitution, there is only one State whose people have the right to ‘choose whom they please’ to represent Arkansas in Congress… Nothing in the Constitution deprives the people of each State of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress. The Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to action by the States or the people.”

Justice Thomas is correct. There is no real Constitutional basis for this split Supreme Court ruling. It is the ruling on the whims and political view of five lawyers.  At the end of this Blog are states that still have federal term limits in their laws and/or constitution. As best I can determine, these states still have these statutes on the record. If the governor or Secretary of State deems that in Inc. v. Thornton, the U.S Supreme Court does not have the authority to make their ruling, then they could prevent these multi-term federal politicians from appearing on the ballot. A grass roots effort in these states might persuade one of them to do this.

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Federalism and the 10th: The State Reclamation Begins

The state governments are now beginning in earnest to do something about the encroaching federal government. Way back in 1994 when the “Republican Revolution” was taking place in Congress the Republican Governors Association (RGA) “adopted” a sort of “declaration of independence” for themselves.  From Congress we got the “Contract with America” and from the RGA…

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Federalism and the 10th: The States’ Great Awakening

In Part 1 of this series, I explained how our federalism works and how the powers were divided between the states and our national government. The details showed that the states were superior to the federal government on the hierarchy scale and that the 10th amendment protected that position whenever the federal government stepped outside…

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