WEBVTT NOTE State’s Rights vs. National Wrongs: The Tenth Amendment Awakening 1 00:00:00.000 --> 00:00:09.000 Good morning. And being a political scientist, I'm going to take a little bit of a different tack to my topic. 2 00:00:09.000 --> 00:00:16.000 I want you to take a look at the projection, Rethinking the American Union for the 21st Century. 3 00:00:16.000 --> 00:00:25.000 How many of you would agree that it's time to, just by a show of hands, rethink the American Union? 4 00:00:25.000 --> 00:00:32.920 Okay, just as I suspected. Now, I want you to also consider what would be the venue and 5 00:00:32.920 --> 00:00:41.360 or the form for rethinking the American Union and subsequently operationalizing a new sort 6 00:00:41.360 --> 00:00:48.280 of union. And my point is, and I'm going to come full circle to this, that the framers 7 00:00:48.280 --> 00:00:57.160 of the Constitution gave us a mechanism to confront the contingencies we're faced with 8 00:00:57.160 --> 00:01:01.800 today, and that is Article 5, to amend the Constitution. 9 00:01:01.800 --> 00:01:06.300 So that's what I'm going to talk about within the context of what's happening, and everybody 10 00:01:06.300 --> 00:01:11.960 admits there's a restlessness in America and our culture and our politics and the economy, 11 00:01:11.960 --> 00:01:16.840 what Hobbes might call a lot of movement or motion out there. 12 00:01:16.840 --> 00:01:24.400 But my point is, and hopefully I'll be somewhat persuasive, that much of the recent reaction 13 00:01:24.400 --> 00:01:31.440 against the problems that we're confronting will ultimately fail. And they'll fail for 14 00:01:31.440 --> 00:01:37.600 the reasons that Tom mentioned, and that I'm going to also emphasize, is that Americans 15 00:01:37.600 --> 00:01:46.520 have been deluded and indoctrinated, I don't know what to call it, dumbed down, I guess 16 00:01:46.520 --> 00:01:57.520 I guess you might be able to say that, to believing that the Constitution is still in effect today, 17 00:01:57.520 --> 00:02:04.520 and or that the Supreme Court is an honest broker in enforcing that Constitution. 18 00:02:04.520 --> 00:02:12.520 Now, so let me get back, in other words, as Tom mentioned, that the checks on power, 19 00:02:12.520 --> 00:02:19.320 It's not that they're going to fail, they have failed. 20 00:02:19.320 --> 00:02:24.120 So the title of my paper, States Rights and National Wrongs, I had a subtitle but for 21 00:02:24.120 --> 00:02:27.000 some reason it didn't show up on the program. 22 00:02:27.000 --> 00:02:33.560 The subtitle was, The Supreme Court Be Damned. 23 00:02:33.560 --> 00:02:36.520 That really shows the gist of what I'm trying to get at. 24 00:02:36.520 --> 00:02:41.040 So let's think about states rights for a few minutes. 25 00:02:41.040 --> 00:02:46.240 And contrast that with national wrongs. 26 00:02:46.240 --> 00:02:51.240 Under states' rights, membership in the union is consensual. 27 00:02:51.240 --> 00:02:56.940 Under national wrongs, membership in the union is coercive. 28 00:02:56.940 --> 00:03:01.960 States' rights, police powers are state prerogatives. 29 00:03:01.960 --> 00:03:06.660 National wrongs, you have national police powers. 30 00:03:06.660 --> 00:03:12.540 Under States' Rights, the U.S. Bill of Rights restricts the national government. 31 00:03:12.540 --> 00:03:17.220 Under National Wrongs, it restricts the states. 32 00:03:17.220 --> 00:03:21.380 And I have a subsection, The Theory of Selective Incorporation. 33 00:03:21.380 --> 00:03:25.520 Under States' Rights, state judicial supremacy. 34 00:03:25.520 --> 00:03:28.500 And Tom mentioned that that's very, very important. 35 00:03:28.500 --> 00:03:35.340 The two cases, Martin v. Hunter and the Collins v. Virginia, 1819 and 1820, there was a point 36 00:03:35.340 --> 00:03:41.500 in time when Americans acknowledged that the state supreme courts were either superior 37 00:03:41.500 --> 00:03:49.220 to or had parity with the United States Supreme Court. And a misconstruction of the Supremacy 38 00:03:49.220 --> 00:03:55.180 Clause, and if you read it closely, it reaffirms national or state judicial supremacy because 39 00:03:55.180 --> 00:04:02.300 it talks about state judges enforcing national laws and making sure their laws are consistent 40 00:04:02.300 --> 00:04:10.140 with the U.S. Constitution, but as the state judges see the Constitution under a Federal model. 41 00:04:12.300 --> 00:04:20.780 Now, under the contemporary political duress that we're confronting, sort of the palladium of our 42 00:04:20.780 --> 00:04:27.500 response, people who are trying to tame the beast in Washington, is the 10th Amendment. 43 00:04:27.500 --> 00:04:34.580 The 10th Amendment Awakening is a reaction against some of these national wrongs that 44 00:04:34.580 --> 00:04:35.580 I mentioned. 45 00:04:35.580 --> 00:04:41.260 Specifically, the catalyst most recently was the Affordable Care Act. 46 00:04:41.260 --> 00:04:50.860 But even with Affordable Care Act, under these state responses to universal health care, 47 00:04:50.860 --> 00:04:56.780 they don't go to another problem that would be Medicare, Medicaid, which also under an 48 00:04:56.780 --> 00:05:24.780 The States don't have a good argument to complain about the Affordable Care Act, Universal Health Care, unless they're willing to give up Medicare and Medicaid. 49 00:05:24.780 --> 00:05:34.780 And that shows that the influence of the national government over the states is money. 50 00:05:34.780 --> 00:05:42.780 Because Florida would be more than happy to get rid of Medicare and Medicaid, but they can't take a 25-30% hit on their state budget. 51 00:05:42.780 --> 00:05:52.780 And also the political turmoil that that would result in, because people in the state of Florida and elsewhere have become dependent upon that federal largesse. 52 00:05:52.780 --> 00:06:00.860 So, let's look a little bit about this 10th Amendment awakening and what it means and whether 53 00:06:00.860 --> 00:06:05.820 we should be hopeful. And the 10th Amendment would also include concepts like interest position, 54 00:06:05.820 --> 00:06:19.620 nullification and such. The controversy that the 10th Amendment is going to overcome these 55 00:06:19.620 --> 00:06:27.100 These problems is really an exercise of futility. Proved to be a very difficult task due to 56 00:06:27.100 --> 00:06:32.800 decades of political indoctrination that the national government created the states and 57 00:06:32.800 --> 00:06:38.060 has sovereignty over the states. Now when we talk about sovereignty, sometimes we just 58 00:06:38.060 --> 00:06:44.820 kind of gloss over it. But state sovereignty means exactly that. Supreme political authority 59 00:06:44.820 --> 00:06:52.620 Resides Within the States. Now, it's not a perfect system. The states are problematical 60 00:06:52.620 --> 00:07:01.820 too. There's no question about that. But let's just look at it from an accurately historical 61 00:07:01.820 --> 00:07:12.780 picture. State sovereignty, even post 1865, still resides with the states under international 62 00:07:12.780 --> 00:07:18.580 Law and Everything Else. St. George Tucker wrote about this extensively in his commentaries 63 00:07:18.580 --> 00:07:31.580 on common law. Now, to put this lie to rest that there's national sovereignty and not 64 00:07:31.580 --> 00:07:37.080 state sovereignty is going to be extremely difficult. For one reason, the Supreme Court 65 00:07:37.080 --> 00:07:44.240 has heaped one case law decision upon another that has buried this truism that the states 66 00:07:44.240 --> 00:07:51.640 are sovereign. 67 00:07:51.640 --> 00:07:59.400 Tenth Amendment advocates, in my opinion, and this is what they should do but they don't, 68 00:07:59.400 --> 00:08:05.120 must recognize that the U.S. Supreme Court is complicit in fraudulently stripping the 69 00:08:05.120 --> 00:08:08.160 and the states of their 10th Amendment prerogatives. 70 00:08:08.160 --> 00:08:14.600 10th Amendment advocates must also be prepared to bypass the U.S. Supreme Court and look 71 00:08:14.600 --> 00:08:21.160 to the respective states as guarantors of the state's reserve powers. 72 00:08:21.160 --> 00:08:26.400 And lastly, 10th Amendment supporters need to be liberated from the constitutional apostasy 73 00:08:26.400 --> 00:08:36.760 propagated by Lincoln that the national government created the states. Now, as a facilitator 74 00:08:36.760 --> 00:08:42.040 of the national ruling class's hegemony over constitutional rights of the states, the Supreme 75 00:08:42.040 --> 00:08:47.560 Court will continue to have a prejudiced posture towards states' rights and its progeny, the 76 00:08:47.560 --> 00:08:51.800 Tenth Amendment. Now, I know we have some pair of victories here or there where they 77 00:08:51.800 --> 00:08:59.160 give something like even the recent McDonald case with the second amendment, the Heller 78 00:08:59.160 --> 00:09:05.460 case with the second amendment. Those are very weak reads upon which to rest your second 79 00:09:05.460 --> 00:09:12.040 amendment rights. Most of these decisions are split decisions, five-four. They're political 80 00:09:12.040 --> 00:09:17.560 decisions and very strategic and tactically made. You could have a change of the personnel 81 00:09:17.560 --> 00:09:23.560 If you're on the court, and just as easily as they say you have a fundamental right to keep and bear arms, 82 00:09:23.560 --> 00:09:27.560 they could say you don't have a fundamental right to keep and bear arms. 83 00:09:27.560 --> 00:09:31.560 Now, from a state's rights position, you could look at the Florida Supreme Court, for example, 84 00:09:31.560 --> 00:09:37.560 and it makes it quite clear in its declaration of rights that as a citizen of the state of Florida, 85 00:09:37.560 --> 00:09:45.320 In Florida, I have a fundamental right to keep and bear arms for personal defense and 86 00:09:45.320 --> 00:09:52.840 in defense of my state. A constitutional right. In the recent McDonald case, I didn't see 87 00:09:52.840 --> 00:10:00.880 any state constitutions referenced. None. Zero. And it also says that my right to keep 88 00:10:00.880 --> 00:10:08.600 Keep and Bear Arms doesn't come from the government. It doesn't come from the people of Florida. 89 00:10:08.600 --> 00:10:15.800 It comes from my Creator, specific reference to God. So not even the people of Florida 90 00:10:15.800 --> 00:10:22.960 can take away that right. It's just acknowledging a fact. Now this constitution in Florida was 91 00:10:22.960 --> 00:10:36.320 adopted in 1967. You can see how quickly the political cultures change from 1967 to 2011. 92 00:10:36.320 --> 00:10:40.440 If we would have a subtype of a state constitutional convention in Florida, I don't know if that 93 00:10:40.440 --> 00:10:46.720 language would show up. But the reason the political culture has changed is in large 94 00:10:46.720 --> 00:11:13.080 State in another way, if you take an objective hard look at the political realities, it becomes 95 00:11:13.080 --> 00:11:22.800 It is clear that Americans must rethink the Union and come to grips with how and why did 96 00:11:22.800 --> 00:11:31.400 the Union evolve from a voluntary association of sovereign states into an involuntary association 97 00:11:31.400 --> 00:11:36.680 of states under the dominance of the United States government with the blessings of the 98 00:11:36.680 --> 00:11:42.680 of the U.S. Supreme Court, that the forces which subordinated the states to the Union 99 00:11:42.680 --> 00:11:48.760 are still in force today, and that there is little chance that the current Tenth Amendment 100 00:11:48.760 --> 00:11:58.240 Movement will have substantive long-term success in restoring to the states the reserve powers. 101 00:11:58.240 --> 00:12:03.200 The Tenth Amendment Movements must reject the Lincoln's fixed idea that the U.S. government 102 00:12:03.200 --> 00:12:10.720 is Legitimately Omnipotent and the State's Constitutionally Impotent to Confront it. 103 00:12:10.720 --> 00:12:14.840 Tenth Amendment Movements must be prepared to confront, head on, the consolidation of 104 00:12:14.840 --> 00:12:24.600 political power in an all-powerful national government, a power stemming from the implementation 105 00:12:24.600 --> 00:12:30.640 of the interests of a political class consisting of elites from the managerial, academic, military, 106 00:12:30.640 --> 00:12:45.840 Now, this political class will not relinquish their power without a fight, a fight in which 107 00:12:45.840 --> 00:12:50.760 the U.S. Supreme Court will play a prominent role in attempting to beguile the American 108 00:12:50.760 --> 00:13:00.160 people into believing that 10th Amendment advocates are either misguided or even treasonous, 109 00:13:00.160 --> 00:13:04.840 Only by rejecting U.S. Supreme Court judicial review as the court of last resort over state's 110 00:13:04.840 --> 00:13:11.720 rights will the recovery of genuine 10th Amendment state's rights be secured. 111 00:13:11.720 --> 00:13:18.120 The fact that this is a difficult task doesn't make it any less essential. 112 00:13:18.120 --> 00:13:28.640 Now imagine a case, the 27 states that sued the federal government and the U.S. District 113 00:13:28.640 --> 00:13:47.640 The U.S. Supreme Court in Northern Florida makes its way up to the United States Supreme Court and whether it's a commerce power argument or a 10th Amendment argument, the 10th Amendment will just wilt before the jurisprudence of the U.S. Supreme Court. 114 00:13:47.640 --> 00:13:57.640 Now we could go back to many different cases but one of the most important ones because it captures the posture of the court towards the reserve powers of the states. 115 00:13:57.640 --> 00:14:04.560 About reserve powers, that also includes the right of secession, interposition, nullification. 116 00:14:04.560 --> 00:14:09.440 We're talking about state sovereignty. 117 00:14:09.440 --> 00:14:13.600 This is what Oliver Wendell Holmes had to say about the 10th Amendment, and this had to 118 00:14:13.600 --> 00:14:20.100 do with the case, the Congress had a treaty in 1916 with Great Britain that prevented 119 00:14:20.100 --> 00:14:23.680 the people of Missouri from hunting certain migratory birds. 120 00:14:23.680 --> 00:14:29.120 And they passed the enabling legislation giving the federal bureaucracy power to enforce that 121 00:14:29.120 --> 00:14:30.120 law. 122 00:14:30.120 --> 00:14:37.280 And the state of Missouri said, you can't do that because we have control over hunting. 123 00:14:37.280 --> 00:14:44.160 We have control over our policies regarding hunting, the birds in our airspace, the birds 124 00:14:44.160 --> 00:14:47.600 within the state of Missouri. 125 00:14:47.600 --> 00:14:52.320 And they said that it's unconstitutional, but in Missouri v. Holland, the Supreme Court 126 00:14:52.320 --> 00:15:04.000 said no. The Supreme Court said that a treaty that's constitutional can legitimize an otherwise 127 00:15:04.000 --> 00:15:10.880 unconstitutional federal statute, if the federal statute is the enabling legislation to the 128 00:15:10.880 --> 00:15:17.280 treaty. And Missouri made a 10th Amendment argument, you can't do that, we're sovereign, 129 00:15:17.280 --> 00:15:31.440 The only question is whether it is forbidden by some invisible radiation from the general 130 00:15:31.440 --> 00:15:38.240 terms of the 10th Amendment. In other words, if this otherwise unconstitutional federal 131 00:15:38.240 --> 00:15:47.440 Statute is unconstitutional because that area of public policy belongs to the state of Missouri. 132 00:15:47.440 --> 00:15:58.000 So Holmes says that's, you know, forbidden by some invisible radiation of the 10th Amendment. 133 00:15:58.000 --> 00:16:05.820 And his response was to that question, we must consider what this country has become 134 00:16:05.820 --> 00:16:14.540 and Deciding what that amendment has reserved. So, in other words, the Tenth Amendment, i.e. 135 00:16:14.540 --> 00:16:21.720 the state's relationship to the national government, is fluid. It's circumstantial. 136 00:16:21.720 --> 00:16:30.020 And if the political class says that national interests are superior to state's rights, 137 00:16:30.020 --> 00:16:38.820 And the state's rights will contract accordingly and national powers expand exponentially. 138 00:16:38.820 --> 00:16:44.500 Now this is the precedent now within the US Supreme Court. 139 00:16:44.500 --> 00:16:48.700 So imagine the states, 27 or so, are coming up to the Supreme Court. 140 00:16:48.700 --> 00:16:51.960 We all know it's going to be decided by the Supreme Court ultimately. 141 00:16:51.960 --> 00:16:56.340 And they might win maybe the first round. 142 00:16:56.340 --> 00:16:59.780 But once again, you have to think long term about this. 143 00:16:59.780 --> 00:17:07.400 It will be either way a 5-4 split. But if they take Holmes' logic, his jurisprudence, 144 00:17:07.400 --> 00:17:13.420 the states don't have a leg to stand on, especially when you consider that the states 145 00:17:13.420 --> 00:17:21.020 have already bought into Medicare, Medicaid and all these other health care programs. 146 00:17:21.020 --> 00:17:26.060 So according to Justice Holmes, the clearest constitutional statement of states' rights 147 00:17:26.060 --> 00:17:33.900 must be relegated to meaningless verbiage in order to accommodate the maturation of so-called national 148 00:17:33.900 --> 00:17:41.500 interest. The Supreme Court has not been shy about its intention. In several important decisions, 149 00:17:41.500 --> 00:17:47.340 the Court has been forthright about relegating the Tenth Amendment to impotence. By deferring 150 00:17:47.340 --> 00:17:52.460 to the United States Supreme Court case law precedent, such as Missouri v. Holland, the 151 00:17:52.460 --> 00:17:58.460 The states continued their slow and willful march from state's right to federalism into 152 00:17:58.460 --> 00:18:02.980 the centralizing vortex of nationalism. 153 00:18:02.980 --> 00:18:07.580 Deferring to the U.S. Supreme Court was and continues to be a critical error on the part 154 00:18:07.580 --> 00:18:10.220 of the states. 155 00:18:10.220 --> 00:18:17.580 Why should an aggrieved sovereign state ultimately defer to its agent, its agent, we're the principles, 156 00:18:17.580 --> 00:18:20.420 the state is the principle, the national government is our agent. 157 00:18:20.420 --> 00:18:27.660 It works for us in fairly resolving the constitutional conflict in which the latter has a substantial 158 00:18:27.660 --> 00:18:30.420 stake in the outcome. 159 00:18:30.420 --> 00:18:36.380 It should not and must not if it's to maintain its 10th Amendment prerogatives. 160 00:18:36.380 --> 00:18:43.420 And let me wrap it up very quickly regarding the Affordable Health Care Act. 161 00:18:43.420 --> 00:18:48.300 Judge Vinson, the one that was being applauded by conservatives and such, the federal district 162 00:18:48.300 --> 00:18:55.940 According to Vincent, the states maintain that this presents them with a Hobson choice. 163 00:18:55.940 --> 00:19:01.000 They must either accept the Affordable Care Act as an extension of Medicaid program with 164 00:19:01.000 --> 00:19:09.200 all its new obligations and costs, or exit both Medicaid and the Affordable Care Act. 165 00:19:09.200 --> 00:19:13.640 This would require the states to forgo all federal matching funds that are necessary 166 00:19:13.640 --> 00:19:18.400 are necessary and essential for them to provide health care to their neediest citizens. That's 167 00:19:18.400 --> 00:19:25.720 Judge Vinson. Once again, the states would have to forgo all federal matching funds that 168 00:19:25.720 --> 00:19:33.560 are necessary and essential for them to provide health care to their neediest citizens. Now, 169 00:19:33.560 --> 00:19:39.900 we would like to see that happen, but the political reality is it won't. Based upon 170 00:19:39.900 --> 00:19:46.900 Judge Vincent leaves the states with an open door. Exit Medicaid, Medicare programs altogether, 171 00:19:54.220 --> 00:20:00.340 and challenge the Affordable Care Act on 10th Amendment grounds, or waive that option by 172 00:20:00.340 --> 00:20:07.340 opting to stay in those federally funded programs. So in that Judge Vincent opinion, the states 173 00:20:07.340 --> 00:20:14.220 The states lost their 10th Amendment argument. They won on some other constitutional grounds, 174 00:20:14.220 --> 00:20:19.060 which requests being forced into interstate commerce. He says the national government can't 175 00:20:19.060 --> 00:20:24.780 do that, but I don't think that's going to withhold the scrutiny of either the Circuit 176 00:20:24.780 --> 00:20:29.100 Court of Appeals or the U.S. Supreme Court. So the 10th Amendment was buried by Judge 177 00:20:29.100 --> 00:20:37.660 by Judge Vinson, for the reasons explained. And he's right. So when it comes to rethinking 178 00:20:37.660 --> 00:20:46.060 this, it's going to take a monumental effort. But think about a Article 5 response to this. 179 00:20:46.060 --> 00:20:55.420 Think about all the people within the states getting organized, motivated, trying to come 180 00:20:55.420 --> 00:21:00.300 come up with solutions. Now, I'm not saying the solutions are going to be desirable, but 181 00:21:00.300 --> 00:21:08.900 the process is extremely important, because imagine that they don't come to a consensus. 182 00:21:08.900 --> 00:21:17.820 And you see something like that graph on the overhead. You see these cleavages breaking 183 00:21:17.820 --> 00:21:25.260 out. And what you're looking at right there might be a reinstatement of something under 184 00:21:25.260 --> 00:21:32.420 and more similar to the Articles of Confederation within those units that are grouped together. 185 00:21:32.420 --> 00:21:38.220 If they can pull it together, rethink the union on grounds that are conducive to liberty, 186 00:21:38.220 --> 00:21:44.080 so be it. If they can't, perhaps certain regions of the country can. That's why the process 187 00:21:44.080 --> 00:21:54.300 is essential. Otherwise, we'll be swept away by the tides. This generation is the remnant, 188 00:21:54.300 --> 00:21:59.820 And there aren't many of us out there. Think about the next generation. Will they even 189 00:21:59.820 --> 00:22:05.980 know that this is an option? Will they care? Will they even look to the Constitution as 190 00:22:05.980 --> 00:22:12.980 a reaction, a recourse to the problems we're confronting? And in closing, that's why my 191 00:22:13.700 --> 00:22:20.700 favorite part of the title of my paper, the Supreme Court, be damned. Thank you very much. 192 00:22:24.300 --> 00:22:26.300 Thank you very much.