The United States is a federal republic, with a national government and 50 semi-autonomous republics that frequently chaff and challenge the federal government over funding, policy and law enforcement.
States that do not want to follow federal policy have several options: Article VI of the Constitution requires only state judges to enforce federal laws, which governors have exercised since the Fugitive Slave Act in 1849. State responses to policies unpopular at home have ranged from non-enforcement to the current California example of “in your face” active resistance. Legislative stone-walling by the minority party and state challenges in federal Courts have been part of the political process since before the Civil War.
Occasionally, the federal government has overcome the limitations it has over states rights in the 10th Amendment by sheer blackmail.
President Nixon issued an Executive Order mandating the national 55 mile per hour speed limit during the 1974 oil embargo as a “safety” measure, which Congress translated into law. Ten years later, Congress mandated that states raise their drinking age to 21. Both measures imposed a 10% reduction in a state’s share of Highway Trust Fund money, which governors needed for road building and maintenance, if they did not comply.
The first measure was cheerfully repealed in 1987, with alacrity of application rivaled only the repeal of the 18th Amendment in 1933.
The second, interesting enough, remains in force in all 50 states, though a third of them have instituted exceptions for home consumption and family gatherings.
There are two ways we as a people can approach these constitutional issues.
Justice Stevens’ first target in his book, Six Amendments, was correction of the language in Article VI to expand the coverage of those state officials who are required to enforce federal law from only state judges to all public officials. Such a change would quickly negate the outright refusal to cooperate with Immigration and Customs Enforcement agents and end the nonsense of “sanctuary cities” and the “sanctuary state.” He notes previous court rulings on the ‘anti-commandeering “clause of Article VI emphasized the protection of state sovereignty.
The State sovereignty concept should join that list, particularly with its history of obstructing civil rights for Black Americans and other minorities. Making the Acts of Congress “the supreme law of the land” with a universal mandate for enforcement would be an excellent start.
In a generation or so, revisit the sovereignty issue, especially as we morph into a North American empire, and gradually create and field a national justice system, educational system, and taxation system, for starters.
Also, repeal the 12th Amendment and the Electoral College and go with popular vote counts in presidential elections.
Under the centralized approach, states would become increasingly vestigial entities and the federal government would become a unitary state, subject to regional alliances in Congress.
A proposal for states to employ Article V of the Constitution for the purpose of bypassing Congress to amend the Constitution is certainly legal and within the scope of desirable.
The antics of our elected officials make the option more attractive. State Conventions could be used to reign in fiscal excesses, refute Congressional intrusions into our lives and to enact term limits! This provision has been used only once: to ratify — not initiate — Amendment 21, the repeal of Prohibition.
The first and third goals are the most appropriate for a convention approach. Congress has shown no inclination to rein in spending; nearly all the States have requirements to enact budgets before their fiscal year expirations and most of them have given their governors line-item veto powers to that end.
While our Founding Fathers envisioned men serving out of a sense of duty for a limited time before returning to their other interests, the reality of Congressional careers belies that noble vision. To the argument that elections are term limits, most members run for reelection against weak or non-existent opposition both in primaries and in the general election. Such an initiative can only come from the states.
The second goal is trickier. The history of the 20th Century has been one of continued federal legislative, executive and judicial press in the area of Civil/Equal Rights, not always popular or well-accepted in some parts of the country. Brown vs. Topeka et al; the Voting Rights Act of 1965, and Title IX stand out. If and when the states do get their acts together to bypass a dysfunctional Congress, however, they may well not stop at such measures and move to, in effect, rewrite the Constitution.
Eleven states have taken up bills that would allot all Electoral College votes to the candidate who wins the national popular vote . Such measures may well argue the approach of State Constitutional Conventions; but at the present time, state law does not trump the Constitution.
Schoch lives in Williamsburg.