The Illusion of State Sovereignty

In the last 100 days, 36 states have introduced sovereignty bills.  Almost entirely a conservative/libertarian movement, these bills aim to reclaim powers that are allegedly allocated to the states under the 10th Amendment, and free the states from onerous federal policy and regulation.  Incidentally, the last time this movement occurred was during the commencement of the Clinton administration.

It is easy to be sympathetic to these movements; the federal government has seemingly found itself a carte blanche for regulation within several choice (Necessary and Proper and Commerce) clauses of the Constitution, and hasn’t looked back (barring rare occasions) since McCullough v. Maryland in 1809.

From what does the federal government derive its power?  Why is it that an abstract, seemingly omnipotent entity can extract funds from states, remembering that these states were initially more like independent nations than subservient communes?

Thomas Jefferson would say that the federal government only posses the power that sovereign states explicitly allow it to have; anything further is unconstitutional.  Justice John Marshall would emphatically state that a supreme federal power is implicitly derived from the people of America, leaving the states largely impotent.   The difference would redefine the future of America.

As long as the mutinous states operate within the confines of our Constitution, these bills are ineffectual at best, and embarrassing at worst.  The arbiters of the United States Constitution reside within the Supreme Court, see Marbury v. Madison, 5.U.S. 137 (1803), and they have clearly held, devoid of ambiguity, that the federal government has implied powers to carry out anything necessary to achieve the successful execution of their explicit Constitutional powers.  As it happens, those implied rights, never enumerated within the Constitution, are the backbone of the federal regulation and supremacy that these states loathe.  Furthermore, state sovereignty has been soundly renounced in several Supreme Court cases (Martin v. Hunter’s Lessee, Cohens v. Virginia, Gibbons v. Ogden, McCullough v. Maryland). Those that have a strong constitutional background know this, and see these attempts at liberty by the unhappy states as awkward and unsettling.  Attempting to reassert powers under the 10th Amendment, when they have been judicially (read: constitutionally) reallocated elsewhere for the past 200 years, is regrettably rather absurd.  These claims simply cannot work within the current confines and interpretations of our Constitution.

Instead, the states have but two real options:  (1) change the Supreme Court’s interpretation of the 10th Amendment and implied federal rights, or (2) secede and free themselves from the constraints of the Constitution and the Court that interprets it.   Changing a constitutional interpretation at this point would require changing the ideological mood of the Supreme Court, most likely by restructuring the judiciary or replacing individual justices.  Secession is rife with its own issues that make it an unrealistic option.

It is perhaps a cruel irony that it is actually court packing itself that created the current pro-federal situation.  As most know, not everyone believed in having a strong centralized government as it stands today.  Jefferson, Mason, and Madison, only to name a few, were ardent state rights supporters who eschewed the idea of a supreme federal government.  It was John Adam’s last act as president, and the basis for Marbury vs. Madison, that allowed the underpinnings of America to significantly change toward the latter.  Shortly before Jefferson took office, Adams appointed quite a few new federalist judges, who would subsequently favor nationalistic policy.  Could this happen today, but with the opposite result, moving power back to the states?

The prospect is highly unlikely.  Court packing is an immensely difficult maneuver; it worked effectively in the early 1800’s because the republic was still largely undefined and with little structural precedent.  Checks and balances (mostly due to a lacking judiciary) hadn’t been effectively implemented and the battle of federalist vs. Jeffersonian ideology hadn’t been resolved.  Today, it is not so simple to change the number of Supreme Court justices, or getting one with radical views appointed for that matter.  Roosevelt ran into fatal issues with his Judiciary Reorganization Bill in 1937, when he tried to pack the courts with pro-New Deal justices.  It seems highly unlikely that a contemporary bill would experience any modicum of success.

For the recalcitrant states, that leaves secession.  The Constitution itself is remarkably silent on the issue of secession, but the Supreme Court is not.  Ironically, the federal government, represented by the Court, has actually ruled that states cannot lawfully leave the Union. See Texas v. White, 74 U.S. 700 (1869).  Furthermore, any miscellaneous clause that a state has within their constitution reserving the right to secede is null.  In fact, the Court goes on to state that the only way to secede is through revolution or through “consent of the States”.  In other words, there is no such thing as a peaceable “thanks for the good times, but I’d rather be independent” departure, unless every other state agrees with the secession.

The practical issues involved with secession are immense.  First, every state receives massive federal funding; as much as states moan about regulation, they are fond of and rely on the money.  Interior states, for example, would be hard pressed to operate independently – the federal government subsidizes the farming industry to ensure economic sustainability.  Secondly, it is unlikely that the remaining states would allow a rebellious state to leave.  Less states means less taxes collected, which means less money for everyone else.  Finally, I find it unlikely that even Texas, our most likely contender, would start an armed revolution against the United States.

Depressingly, aggrieved states don’t seem to have an immediately practical recourse.  In addition to secession and court packing, some argue it is also possible to “pack” the legislature and executive with limited government sympathizers, as they are the ones who execute these judicially “discovered” implied federal powers. It is doubtful, however, that conservatives have anywhere near the political capital to attempt such a thing.  The fact of the matter is that while government taxation, spending, and regulation have run out of control, states actually have very little say in the matter.  Any illusions of state sovereignty are just that, illusions.

The Rationalist is a graduate of The United States Naval Academy at Annapolis, where he majored in Information Systems Technology and Economics. He is currently studying law at George Washington University. He invites you to follow him on Twitter (@the_rationalist).

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