States’ Rights: The Foundation of Our Republic
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.
— Tenth Amendment to the US Constitution
Good Monday morning! I pray y’all enjoyed a loving and blessed Valentine’s Day.
When some gaze upon the title of this week’s missive, they may immediately construct a negative connotation for the words “states’ rights.” There are those who will weigh these words against the annals of American history associated with slavery, the Civil War, Jim Crow, and segregation. The funny thing is that the people who think of states’ rights in those references are of the same political party who gave us these dark corridors of our history: the Democrat Party. Perhaps that is why the progressive socialist left is so very willing to revise and erase our history.
However, those of us who call ourselves constitutional conservatives — you know, those pesky right-wing extremists — states’ rights have a different, and vital, meaning.
The Tenth Amendment was very clear in prescribing that the enumerated powers not specified, delegated, to the federal government were reserved to the sovereign States and the people. The respective states of the new United States of America, those free and independent States, knew that there had to be a declaration of individual rights, the Bill of Rights, in our Constitution before ratification.
Remember, it took three years to attain ratification of our Constitution. Those first 10 Amendments to our Constitution were critical and formed the foundation of the relationship between the federal government, the states, and the citizens.
Today, that relationship, which is often called the principle of federalism, is under assault. Today, we have the resurrection of an onerous and intrusive federal government. One that is not governing based upon the consent of the governed, but, instead, rule by way of edicts, mandates, decrees, and orders. A few weeks back, we discussed the dangers of executive overreach.
So, how do we restore the right and proper constitutional relationship, or balance, between the entities aforementioned?
There are those who would say that the federal government reigns supreme over the States, based upon the Supremacy Clause, Article VI, Clause 2. The Supremacy Clause states, “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.”
The keywords in this clause are the ones I have bolded and underlined, “which shall be made in pursuance thereof.” That means that yes, the laws of the land are supreme as long as they are made in pursuance of the Constitution. In other words, when we have those who are pursuing an ideological agenda that is not consistent with the established laws of the Constitution, it is not supreme. And no, you do not have to have paid a whole lot of money to be a lawyer to realize that.
Let’s look at this example.
Article I, Section 10, Clause 3 states, “No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.“
The above excerpt from our Constitution clearly specifies a restriction on a sovereign State. It articulates an enumerated power for the federal government. But, the bolded and underlined statement provides the terms under which a State may take, and be granted, these powers.
Let’s apply this to the case of Texas and our shared border with a foreign power and nation, Mexico. If President Joe Biden decides — by Executive Order, thus, not pursuant to our Constitution — to enact an open border policy, the State of Texas, and other border states, have the right to protect themselves from the “invasion” of illegal immigration.
Yes, illegal immigration does present an imminent danger to the State of Texas and does not admit delay. Texas is the number one state in America for human and sex trafficking. Texas is dealing with the problem of the Sinoloa and other drug cartels operating within its state borders, and rising gang violence and drug smuggling. In this era of COVID-19 it is an imminent danger to the citizens of Texas to be exposed to those potentially infected with the virus. Lastly, Texas should be able to deport those here illegally, especially those guilty of committing crimes, violating our rule of law.
Under the verbiage of Article 1, Section 10, Clause 3, Texas should be able to enact an OPCON (Operational Control) relationship of federal government assets within our border to secure the border and its citizens. This portion of our Constitution enables Texas to take action — based upon imminent danger — and not rely upon the federal government: the Biden administration.
Along those same lines, there is also the concept of constitutional nullification, something the State legislature of North Dakota is looking to pass. Simply stated, States can assert their right, under the Tenth Amendment, to nullify any law or order emanating from the federal government that, again, is not pursuant to the Constitution of the United States and our rule of law.
Thomas E. Woods Jr. wrote a book on this issue called “Nullification: How to Resist Tyranny in the 21st Century.” You can also review an article he wrote on August 27, 2015, for the Tenth Amendment Center titled, “Nullification is Not Unconstitutional.”
Now, I can hear the leftists who troll our site about to scream. Funny thing, when the left was going around and unconstitutionally establishing sanctuary states and cities for illegal immigrants, conservatives were told to shut up.
One of our eight Legislative Priorities for the Republican Party of Texas is ending the murder of preborn children. The left would have us believe that abortion is the “law of the land,” but Roe v Wade was a Supreme Court decision, and last time I checked the Constitution, courts do not make law. The same would apply to Obergefell v. Hodges (2015) that supposedly made same-sex marriage the “law of the land,” a case that overturned the decision of the voting electorate in California (2008) when a same-sex ballot initiative failed. Courts do not make law. Can someone show me where the federal government can mandate marriage in our constitution?
The progressive socialist left’s ideological agenda cannot, and must not, become the basis for establishing the “law of the land,” and States are empowered to reject and nullify those agenda-based incursions. The Constitution is a restraining document on the powers of the federal government. Foundational to our Republic are the powers reserved to the sovereign States and the people.
Consider HRs 1, 127, and 130, which the Democrat-controlled US House of Representatives are considering. The Republican Party of Texas has Election Integrity and Constitutional Carry as Legislative Priorities for these reasons. States can simply reject and nullify these attempts to federalize our elections — a State-level responsibility — which would undermine our Second Amendment right.
In America, if my numbers are correct, Republicans control 67/99 State legislatures. The foundation of our Republic resides in strong, principled, resolute State legislatures that understand their Constitutional duties, roles, rights, and powers. I do support HB 1369, here in Texas, which would allow the citizens to decide on TEXIT.
But, ask yourselves: why would you run away when our Founding Fathers gave you the tools to nullify the tyranny and totalitarianism of the federal government? Why run away from those who are taking unconstitutional actions, when you have the right and power to say no? Why run away from those who are doing wrong, when you have the moral high ground?
The preamble of the Constitution talks about forming a “more perfect union.” To do so, the first thing is to establish justice. Article 1, Section 10, Clause 3 of the Constitution grants the States the ability to “enter into any Agreement or Compact with another State,” in the case of imminent danger.
I would offer that progressive socialist leftism, Marxism, the ideological agenda of the left, poses that imminent danger for our Constitutional Republic.
Steadfast and Loyal,
LTC Allen B. West (Ret.)
Republican Party of Texas
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