Just as California under President Bush asserted itself on issues ranging from gun control to medical marijuana, a motley cohort of states – from South Carolina to New Hampshire, from Washington State to Oklahoma – are presenting a foil for President Obama's national ambitions. And they're laying the groundwork for a political standoff over the 10th Amendment, which cedes all power not granted to Washington to the people.
Starting first with the progressive movement at the turn of the 20th Century and then with F.D.R.’s New Deal, the federal government has become ever more involved in all areas of our daily lives. At the same time, the Supreme Court has given Congress virtually unlimited latitude by adopting an exaggerated and almost comical understanding of the interstate commerce clause and the 14th amendment.
Pushing back against the undeniable encroachment of the federal government is a noble effort, but the states must be cautious and patient. When it comes to states’ rights, it’s easy to get in trouble. In many cases, the Court adopted an expansive interpretation of federal power in order to protect real liberties which were violated by the states. Moreover, Article VI of the Constitution is unambiguously clear:
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, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.
Any lingering questions about states’ rights were answered in 1865 at Appomattox Courthouse. Instead, the real debate needs to be about the appropriate limits of federal power and the restoration of the rights of the individual. When the President and the Supreme Court fail to protect liberty, the burden to keep Congress in check ultimately rests with the people. In The Federalist #44, James Madison explains:
If it be asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning, I answer… the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers.