The states are not waiting for Congress to do what the states rights advocates believe state governments are empowered to do or the federal government is barred from doing by the Constitution.
The current major states rights issues revolve around immigration, and the right of any state to overturn an act of Congress. For these two issues it is the classic battle between Article VI of the Constitution making the federal government action the supreme law of the land and Article X of the Bill of Rights reserving undefined powers to the states. Another piece of state-sponsored ferment is over health care reform with various state lawsuits challenging the federal government's authority to mandate that individuals carry health insurance. Some of the immigration and health care issues are making their way through the federal courts and it may be sometime before a final decision is made by the U.S. Supreme Court.
To me the most interesting states effort to put the brake on what they regard as overreaching federal control is the effort to get a constitutional amendment that would allow a state to "repeal" or "nullify" an act of Congress. This claimed power has a long history in this country, going back to the Alien and Sedition Acts of 1798, a set of acts designed to curb criticism of the U.S. government and how it handled its tense relations with France. Thomas Jefferson and James Madison quietly penned resolutions for two states that attacked the acts. The heart of the resolutions was that the United States was a voluntary association of states and the acts were unconstitutional violations of free speech and an intrusion into state authority.
Again in l832, South Carolina passed an act of nullification against two tariff laws which the state felt were harmful to southern states. President Andrew Jackson threatened to use force against South Carolina but the issue was resolved before troops were sent in.
A more recent issue of states rights was over civil rights legislation and President Truman's desegregation of the military. Southern states were particularly angry and in l948, South Carolina's Senator Strom Thurmond bolted the Democratic party's presidential nominating convention and ran for the presidency himself as the candidate for the States Rights Democratic Party, sometimes called Dixiecrats.
Now in 2011, the issue of nullification of federal laws by the states has been revived in the form of a proposed constitutional amendment. Getting the Constitution amended is a formidable task but Republican state legislators, led by Virginia plus the Tea Party, intend to pursue the effort. These opponents of judicial activism (non-right wing judges) are very active in seeking constitutional amendments. Apparently the new House Majority Leader, Eric Cantor of Virginia, is prepared to back the effort. Congress must approve such an amendment and submit it for ratification of 38 states. It is a challenge to the imagination to believe Congress will act to reduce its own legislative power.
An equally interesting case of constitutional tampering has to do with the 14th amendment giving automatic citizenship to persons born in the United States. Last summer Senators Mitch McConnell, Lindsay Graham, John Kyl, and John McCain indicated they would support Senate consideration of changing the 14th amendment so that citizenship is not automatically given to children of undocumented residents, so-called "anchor babies". Like the case of the nullification proposal, amending the Constitution regarding citizenship is very difficult. There have been only 26 amendments and 10 of these are the Bill of Rights. Some state lawmakers are looking for a way around the amendment problem by getting the states to coordinate action to establish a form of state citizenship and the issue of state and U.S. citizenship would eventually get to the U.S. Supreme Court for a decision on the constitutionality of automatic citizenship to persons born here.
In sum, while not getting the attention of Speaker John Boehner's plan to repeal health care reform, cut spending, etc., etc., etc., there are some determined efforts at the state level to push their own agenda on national policy issues.
The Alien and Sedition Act surprises me coming at a time soon after the country had fought for its independence and freedom of liberties, especially today when "Freedom of Speech" is held so near and dear as one of the primary freedoms that is always being defended. I am not one big on amending the Constitution but I suppose as society changes and issues change there may be a need to create new to make new amendments. As the world changes technically and socially, amendments made be needed to address issues that did not exist at the founding of this country.
ReplyDeleteDoes state citizen ship actually exist now? I am thinking in terms of in-state tuitions that require citizenship of that state to obtain the reduced rate. If it does then it seem like someone couldnt be a citizen of this country without first be a citizen of a state.
The nullification of federal law amendment proposal - - is that to give the states the right to nullify any federal law they disagree with or want to enact differently? If so, that doesnt seem in line with how this country was founded. It sounds more like giving permission for states to be anarchist.
Shiela
ReplyDeleteThe laws were enacted under John Adams, a Federalist, who was especially sensitive about criticism from the Republicans (then the name of the "party" of Jefferson, Madison, etc) and their supporters in the press. And it was early in our constitutional history when some rules of the game had not yet been fully written, including the important one of the power of the Supreme Court to rule a law unconstitutional. We should always be ready to consider amendments that reflect fundamental changes in time and circumstances, but the problem for some time has been that so many proposed amendments are ideologically driven such as those mentioned, plus such things as a ban on flag burning, allowing school prayer, etc., which have been on the right wing agenda for years. The 18th amendment on prohibition is one that should never have been considered but advocates were vocal (and had been for a long time) and aided by timing and political circumstances. That was and remains the big danger about belief driven amendment proposals.
I can't fully answer your question on state citizenship since it would require reading state constitutions and what they say on such things as eligibility to serve in state legislatures. But your point about tuition rates is tied to residency not citizenship. I'm doubtful that "state citizenship" exists in a legal way but I may be incorrect.
The Nullification argument should have been finally put away by the Civil War but it seems to pop up every now and then, usually from the right, along with secession as has been mentioned in some context by Texas Governor Rick Perry and I believe Sarah Palin or her husband.
I disagreee with amendments based on ideology. Flag burning and school prayer etc do not seem like issues that should be written up in an amendment and itt is hard to imagine that secession is still brought up as a war cry by some people. That would just never fly in todays day and age.
ReplyDeleteI think the residency could be a measuring stick for whether someone is in fact a legal cititizen. If you are not a resident of a state than how could you be a citizen of the US? Is it possible to amend an amendment? I am sure that would run into the same difficulaty though as actually creating a new amendment. While I do not like the idea of adding amendments on ideology it seems that maybe the 14th amendment does at least need to be clarified. As the original intent had to do with the citzenship of slaves and was writen to apply to a specific issue in a different era it seems like it is being used not to its original intent. There is no way that every possible issue could ever have been foresseen and somtime changes will need to be made as Sheila said to address new technical and social change.
Jeffrey
ReplyDeleteIdeologically based amendment proposals are bad news, but the good side is that to date they haven't succeeded. The closest we've come is the 18th amendment on prohibition which was primarily religious based (it's actually more complicated than that) but repealed by the 21st.
It may be possible to be a U.S. citizen without a state residence if you were born here but have lived abroad with non-citizen parents. In that case, I believe when you are 18 you have five years to return in order to retain your citizenship. Don't believe they called it an amendment to an amendment but a portion of the 20th amendment on presidential succession "superseded" a part of the 12th amendment. I think we have done pretty well in adapting the Constitution to changing time and circumstances particularly via the commerce and "general welfare" clauses; the use of those clauses is exactly what the strict constructionists oppose. Even if we determine the intent of those who worked on the 14th amendment within the context of the abolition of slavery, it doesn't necessarily mean that its continued use 150 years later for new circumstances is not legitimate. That's where the fight will be waged.