HELENA, Mont. (Feb. 27, 2023) – A bill introduced in the Montana Senate would create a “Constitution Settlement Commission of the States” by state compact to review, evaluate, and define the scope and power of the federal government. This would set the stage for states to take further action to refuse to cooperate with overreaching federal power.
Sen. Theresa Manzella (R) introduced Senate Bill 434 (SB434) on Feb. 20. The legislation would establish the Constitution Settlement Commission of the States through an interstate compact among participating states. Every state that adopted the compact would send a delegate to the commission. The commission would become active with a minimum of nine states adopting the interstate compact and appointing delegates to the commission.
“The purpose of the commission is to provide a mechanism for a consensus decision from the states concerning what powers the states have granted to the government of the United States in the United States constitution. The purpose is not to overthrow or supplant the government of the United States, but to define its scope, purpose, and power.”
The commission would render decisions about the nature and scope of power delegated to the federal government and set the stage to limit such power.
“A decision rendered by the commission is final and may not be amended or overturned by any agent or branch of any state, any agency or branch of the United States, or by any other nation or organization of nations.”
Under the agreement, any decision rendered by the commission could be implemented or disregarded by state members of this compact, and by any other state, “however or to whatever extent the state may choose.”
Because the compact confers no enforcement authority on the commission, congressional approval for the compact would not be necessary.
As Gary Marbut explained, “[The commission’s] effect would come from providing a consensus position of states that states could enforce individually but in common by applying states’ sovereignty and reserved authority under the Constitution.”
“The Commission provides a way for the states to collectively define the powers the states have delegated to the federal government in the Constitution. It would be entirely up to individual states to implement, or not implement, the decisions of the Commission. But, if the states had a mechanism to collectively rebuff federal excesses, in unison, that would have a much greater effect than the current patchwork of state efforts.”
Marbut said the only practical solutions to reining in overreaching federal power involve some form of asserting states’ sovereignty.
“Only the states may and can restrain the monster the federal government has become. It is up to the states to get the monster they created back on a leash. The concept of the Constitutional Settlement Commission of the States may be a more doable way to organize and assert states’ sovereign powers than other solutions currently under consideration or available.”
As Marbut explains, the success of the commission would ultimately depend on individual states taking action upon the commission’s recommendation.
“The success of the entire effort will depend, ultimately, on the dedication of the states to use their state sovereignty reserved to them under the Tenth Amendment to resist federal excesses in unison. Whether or not sufficient states will demonstrate enough gumption for that remains to be seen. However, there currently is a wave of states’ resistance to federal power, even if a patchwork effort, suggesting the states may have the necessary gumption. If such resistance were in unison among many states, for specific issues, the chances of a successful outcome would be greater, thus the Commission concept.”
Marbut is alluding to the blueprint given by James Madison in Federalist #46 to rein in overreaching federal power. If states employed a “refusal to cooperate with officers of the Union” on issues the commission recommends, it would represent an extremely effective way for states to put a stop to federal law and programs that overstep the powers delegated to the federal government by the Constitution. Madison said such action by any single state would create “very serious impediments.”
And were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.”
This is because the federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts – including gun control. By simply withdrawing this necessary cooperation, states and localities can nullify many federal actions in effect. As noted by the National Governors’ Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”
Madison went on to observe that “ambitious encroachments of the federal government” would be “signals of general alarm.” At that point, there would likely be resistance coordinated between the states.
“A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole.”
Constitution Settlement Commission of the States would create a framework to coordinate such resistance.
SB434 was referred to the Senate Judiciary Committee. There was a public hearing on the bill on Feb. 27. It must pass the committee by a majority vote before moving forward in the legislative process.
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