There are a couple of recent articles, describing the debate underway in two states: Texas and Idaho. Both articles sound very similar in ideology, referencing the 10th Amendment, and arguing for states’ rights. But the actions of the two states couldn’t be more different.
Andy Hopper has an article up at PJ Media entitled: Texas Never Surrendered its Right to Defend Its Borders. He provides a brief history of Texas as explanation for why Texans are outraged by the current flood of illegal aliens.
Hopper explains that Texas was a sovereign nation for almost a decade, after winning its independence from Mexico in a bloody war. The Lone Star state only joined the union with certain guarantees. Among them:
- It would enjoy all the rights of other states, as enshrined in the 10th Amendment,
- The federal government would resolve the territorial disputes remaining between Mexico and Texas, and
- Texas would never be required to forfeit its authority to defend its borders.
However, just 30 years later (in 1875), the federal government reneged on that third condition. In two Supreme Court rulings in that same year (Henderson v. Mayor of New York and Chy Lung v. Freeman) justices used a creative interpretation of the Commerce Clause of the Constitution to strip all states of their right to regulate their borders. States’ rights were forever changed after those rulings.
In Idaho, a similar discussion is underway. State Senator Tammy Nichols published an Epoch Times article entitled: We Have to Make Sure Our States Keep Their Sovereignty. She notes that state rights was a big topic of debate in this year’s legislative session. Apparently, Idaho legislators are starting to realize that the federal government has become a behemoth, accountable to neither the states nor the people. Sen. Nichols notes that the states are supposed to have rights that in some ways supersede those of the federal government.
Like Hopper, Nichols references the text of the 10th Amendment.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
That’s it. That’s the whole amendment – just 28 words. Federal powers are limited, personal freedoms are protected, but otherwise the states are free to manage their own affairs. The 10th Amendment is simple, powerful, and … obsolete.
The reality is that the 10th Amendment has been rendered meaningless by 150 years of revision, legislation, and judicial interpretation.
As noted above, in 1875 the Supreme Court used a radical interpretation of the Commerce Clause to strip the states of their right to regulate their borders.
Then in 1913, both Texas and Idaho surrendered their state’s right to participate in federal legislation. Both states ratified the 17th Amendment, taking the selection of Senators out of the hands of the state legislatures, and placing it in the hands of voters. With that, the Senate became another House of Representatives, answerable only to the people. With that change to the Constitution all states lost their representation in the legislative process.
Then in 1942, the Supreme Court decided that it wasn’t finished with creative interpretation of the Commerce Clause. In Wickard v. Filburn, the court decided that interstate commerce didn’t only apply to commerce actually crossing state lines. It also applied to commerce which could cross state lines – thus enabling the federal government to regulate all commerce. Since Filburn, the commerce clause has been used to regulate everything from labor relations to cannabis. State rights were disappearing fast by the mid-20th century.
What Hopper and Nichols fail to address, is that after a couple of centuries of congressional mischief and creative judicial interpretation, the 10th Amendment no longer means what it says. Now:
- The Environmental Protection Agency controls what products we can produce and sell.
- The Department of Education controls what we teach in school.
- The US Department of Agriculture controls our farming and ranching.
- The Department of Health and Human Services controls our medical care.
- The Department of the Treasury controls our banking.
- The Department of the Interior controls our land.
- The Department of Energy controls our electricity.
- The Department of Labor controls our employment relations.
- The Department of Transportation controls our movement.
- The Department of Housing and Urban Development controls our home financing.
- The President even has the power to suspend our Bill of Rights, for a virus.
So, what “state rights” do Hopper and Nichols think their states still have to defend? Not many I would say.
While Texas and Idaho are closely aligned ideologically, they are very different in another way – which I will explain shortly.
All states still have one remaining constitutional means to change the course of the federal government. The second clause of Article V allows the states to initiate the amendment process without the consent of Congress. Via an Article V convention, the states can collectively impose new rules on the federal government by proposing amendments to the Constitution for subsequent ratification.
Such amendments can be used to
- Correct creative judicial misinterpretation of the Constitution (i.e. make “interstate commerce” mean interstate commerce),
- Reverse past encroachments on state rights (i.e. overturn the 17th Amendment),
- Impose accountability on federal officials (i.e. impose term and fiscal limits), and even
- Provide states with a means to nullify government overreach.
Texas voted “yes” to join 19 other states calling for an Article V convention (34 are needed). When asked to join the Article V movement, Idaho voted “no.” One state is taking action to get back its sovereign rights. The other is complaining about losing them.
That’s how Texas and Idaho are not the same. Texas is fighting. Idaho is surrendering – at least for now.
Author Bio: John Green is a political refugee from Minnesota, now on strike in Galt’s Gulch – which the locals call Idaho. He is a retired engineer who spent much of his career applying engineering principles to organizational development (yes, really). He has written for The American Spectator, Convention of States Action, and American Free News Network. He can be reached at greenjeg@gmail.com.
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