Good morning. And being a political scientist, I'm going to take a little bit of a different tack to my topic.
I want you to take a look at the projection, Rethinking the American Union for the 21st Century.
How many of you would agree that it's time to, just by a show of hands, rethink the American Union?
Okay, just as I suspected. Now, I want you to also consider what would be the venue and
or the form for rethinking the American Union and subsequently operationalizing a new sort
of union. And my point is, and I'm going to come full circle to this, that the framers
of the Constitution gave us a mechanism to confront the contingencies we're faced with
today, and that is Article 5, to amend the Constitution.
So that's what I'm going to talk about within the context of what's happening, and everybody
admits there's a restlessness in America and our culture and our politics and the economy,
what Hobbes might call a lot of movement or motion out there.
But my point is, and hopefully I'll be somewhat persuasive, that much of the recent reaction
against the problems that we're confronting will ultimately fail. And they'll fail for
the reasons that Tom mentioned, and that I'm going to also emphasize, is that Americans
have been deluded and indoctrinated, I don't know what to call it, dumbed down, I guess
I guess you might be able to say that, to believing that the Constitution is still in effect today,
and or that the Supreme Court is an honest broker in enforcing that Constitution.
Now, so let me get back, in other words, as Tom mentioned, that the checks on power,
It's not that they're going to fail, they have failed.
So the title of my paper, States Rights and National Wrongs, I had a subtitle but for
some reason it didn't show up on the program.
The subtitle was, The Supreme Court Be Damned.
That really shows the gist of what I'm trying to get at.
So let's think about states rights for a few minutes.
And contrast that with national wrongs.
Under states' rights, membership in the union is consensual.
Under national wrongs, membership in the union is coercive.
States' rights, police powers are state prerogatives.
National wrongs, you have national police powers.
Under States' Rights, the U.S. Bill of Rights restricts the national government.
Under National Wrongs, it restricts the states.
And I have a subsection, The Theory of Selective Incorporation.
Under States' Rights, state judicial supremacy.
And Tom mentioned that that's very, very important.
The two cases, Martin v. Hunter and the Collins v. Virginia, 1819 and 1820, there was a point
in time when Americans acknowledged that the state supreme courts were either superior
to or had parity with the United States Supreme Court. And a misconstruction of the Supremacy
Clause, and if you read it closely, it reaffirms national or state judicial supremacy because
it talks about state judges enforcing national laws and making sure their laws are consistent
with the U.S. Constitution, but as the state judges see the Constitution under a Federal model.
Now, under the contemporary political duress that we're confronting, sort of the palladium of our
response, people who are trying to tame the beast in Washington, is the 10th Amendment.
The 10th Amendment Awakening is a reaction against some of these national wrongs that
I mentioned.
Specifically, the catalyst most recently was the Affordable Care Act.
But even with Affordable Care Act, under these state responses to universal health care,
they don't go to another problem that would be Medicare, Medicaid, which also under an
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.
And that shows that the influence of the national government over the states is money.
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.
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.
So, let's look a little bit about this 10th Amendment awakening and what it means and whether
we should be hopeful. And the 10th Amendment would also include concepts like interest position,
nullification and such. The controversy that the 10th Amendment is going to overcome these
These problems is really an exercise of futility. Proved to be a very difficult task due to
decades of political indoctrination that the national government created the states and
has sovereignty over the states. Now when we talk about sovereignty, sometimes we just
kind of gloss over it. But state sovereignty means exactly that. Supreme political authority
Resides Within the States. Now, it's not a perfect system. The states are problematical
too. There's no question about that. But let's just look at it from an accurately historical
picture. State sovereignty, even post 1865, still resides with the states under international
Law and Everything Else. St. George Tucker wrote about this extensively in his commentaries
on common law. Now, to put this lie to rest that there's national sovereignty and not
state sovereignty is going to be extremely difficult. For one reason, the Supreme Court
has heaped one case law decision upon another that has buried this truism that the states
are sovereign.
Tenth Amendment advocates, in my opinion, and this is what they should do but they don't,
must recognize that the U.S. Supreme Court is complicit in fraudulently stripping the
and the states of their 10th Amendment prerogatives.
10th Amendment advocates must also be prepared to bypass the U.S. Supreme Court and look
to the respective states as guarantors of the state's reserve powers.
And lastly, 10th Amendment supporters need to be liberated from the constitutional apostasy
propagated by Lincoln that the national government created the states. Now, as a facilitator
of the national ruling class's hegemony over constitutional rights of the states, the Supreme
Court will continue to have a prejudiced posture towards states' rights and its progeny, the
Tenth Amendment. Now, I know we have some pair of victories here or there where they
give something like even the recent McDonald case with the second amendment, the Heller
case with the second amendment. Those are very weak reads upon which to rest your second
amendment rights. Most of these decisions are split decisions, five-four. They're political
decisions and very strategic and tactically made. You could have a change of the personnel
If you're on the court, and just as easily as they say you have a fundamental right to keep and bear arms,
they could say you don't have a fundamental right to keep and bear arms.
Now, from a state's rights position, you could look at the Florida Supreme Court, for example,
and it makes it quite clear in its declaration of rights that as a citizen of the state of Florida,
In Florida, I have a fundamental right to keep and bear arms for personal defense and
in defense of my state. A constitutional right. In the recent McDonald case, I didn't see
any state constitutions referenced. None. Zero. And it also says that my right to keep
Keep and Bear Arms doesn't come from the government. It doesn't come from the people of Florida.
It comes from my Creator, specific reference to God. So not even the people of Florida
can take away that right. It's just acknowledging a fact. Now this constitution in Florida was
adopted in 1967. You can see how quickly the political cultures change from 1967 to 2011.
If we would have a subtype of a state constitutional convention in Florida, I don't know if that
language would show up. But the reason the political culture has changed is in large
State in another way, if you take an objective hard look at the political realities, it becomes
It is clear that Americans must rethink the Union and come to grips with how and why did
the Union evolve from a voluntary association of sovereign states into an involuntary association
of states under the dominance of the United States government with the blessings of the
of the U.S. Supreme Court, that the forces which subordinated the states to the Union
are still in force today, and that there is little chance that the current Tenth Amendment
Movement will have substantive long-term success in restoring to the states the reserve powers.
The Tenth Amendment Movements must reject the Lincoln's fixed idea that the U.S. government
is Legitimately Omnipotent and the State's Constitutionally Impotent to Confront it.
Tenth Amendment Movements must be prepared to confront, head on, the consolidation of
political power in an all-powerful national government, a power stemming from the implementation
of the interests of a political class consisting of elites from the managerial, academic, military,
Now, this political class will not relinquish their power without a fight, a fight in which
the U.S. Supreme Court will play a prominent role in attempting to beguile the American
people into believing that 10th Amendment advocates are either misguided or even treasonous,
Only by rejecting U.S. Supreme Court judicial review as the court of last resort over state's
rights will the recovery of genuine 10th Amendment state's rights be secured.
The fact that this is a difficult task doesn't make it any less essential.
Now imagine a case, the 27 states that sued the federal government and the U.S. District
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.
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.
About reserve powers, that also includes the right of secession, interposition, nullification.
We're talking about state sovereignty.
This is what Oliver Wendell Holmes had to say about the 10th Amendment, and this had to
do with the case, the Congress had a treaty in 1916 with Great Britain that prevented
the people of Missouri from hunting certain migratory birds.
And they passed the enabling legislation giving the federal bureaucracy power to enforce that
law.
And the state of Missouri said, you can't do that because we have control over hunting.
We have control over our policies regarding hunting, the birds in our airspace, the birds
within the state of Missouri.
And they said that it's unconstitutional, but in Missouri v. Holland, the Supreme Court
said no. The Supreme Court said that a treaty that's constitutional can legitimize an otherwise
unconstitutional federal statute, if the federal statute is the enabling legislation to the
treaty. And Missouri made a 10th Amendment argument, you can't do that, we're sovereign,
The only question is whether it is forbidden by some invisible radiation from the general
terms of the 10th Amendment. In other words, if this otherwise unconstitutional federal
Statute is unconstitutional because that area of public policy belongs to the state of Missouri.
So Holmes says that's, you know, forbidden by some invisible radiation of the 10th Amendment.
And his response was to that question, we must consider what this country has become
and Deciding what that amendment has reserved. So, in other words, the Tenth Amendment, i.e.
the state's relationship to the national government, is fluid. It's circumstantial.
And if the political class says that national interests are superior to state's rights,
And the state's rights will contract accordingly and national powers expand exponentially.
Now this is the precedent now within the US Supreme Court.
So imagine the states, 27 or so, are coming up to the Supreme Court.
We all know it's going to be decided by the Supreme Court ultimately.
And they might win maybe the first round.
But once again, you have to think long term about this.
It will be either way a 5-4 split. But if they take Holmes' logic, his jurisprudence,
the states don't have a leg to stand on, especially when you consider that the states
have already bought into Medicare, Medicaid and all these other health care programs.
So according to Justice Holmes, the clearest constitutional statement of states' rights
must be relegated to meaningless verbiage in order to accommodate the maturation of so-called national
interest. The Supreme Court has not been shy about its intention. In several important decisions,
the Court has been forthright about relegating the Tenth Amendment to impotence. By deferring
to the United States Supreme Court case law precedent, such as Missouri v. Holland, the
The states continued their slow and willful march from state's right to federalism into
the centralizing vortex of nationalism.
Deferring to the U.S. Supreme Court was and continues to be a critical error on the part
of the states.
Why should an aggrieved sovereign state ultimately defer to its agent, its agent, we're the principles,
the state is the principle, the national government is our agent.
It works for us in fairly resolving the constitutional conflict in which the latter has a substantial
stake in the outcome.
It should not and must not if it's to maintain its 10th Amendment prerogatives.
And let me wrap it up very quickly regarding the Affordable Health Care Act.
Judge Vinson, the one that was being applauded by conservatives and such, the federal district
According to Vincent, the states maintain that this presents them with a Hobson choice.
They must either accept the Affordable Care Act as an extension of Medicaid program with
all its new obligations and costs, or exit both Medicaid and the Affordable Care Act.
This would require the states to forgo all federal matching funds that are necessary
are necessary and essential for them to provide health care to their neediest citizens. That's
Judge Vinson. Once again, the states would have to forgo all federal matching funds that
are necessary and essential for them to provide health care to their neediest citizens. Now,
we would like to see that happen, but the political reality is it won't. Based upon
Judge Vincent leaves the states with an open door. Exit Medicaid, Medicare programs altogether,
and challenge the Affordable Care Act on 10th Amendment grounds, or waive that option by
opting to stay in those federally funded programs. So in that Judge Vincent opinion, the states
The states lost their 10th Amendment argument. They won on some other constitutional grounds,
which requests being forced into interstate commerce. He says the national government can't
do that, but I don't think that's going to withhold the scrutiny of either the Circuit
Court of Appeals or the U.S. Supreme Court. So the 10th Amendment was buried by Judge
by Judge Vinson, for the reasons explained. And he's right. So when it comes to rethinking
this, it's going to take a monumental effort. But think about a Article 5 response to this.
Think about all the people within the states getting organized, motivated, trying to come
come up with solutions. Now, I'm not saying the solutions are going to be desirable, but
the process is extremely important, because imagine that they don't come to a consensus.
And you see something like that graph on the overhead. You see these cleavages breaking
out. And what you're looking at right there might be a reinstatement of something under
and more similar to the Articles of Confederation within those units that are grouped together.
If they can pull it together, rethink the union on grounds that are conducive to liberty,
so be it. If they can't, perhaps certain regions of the country can. That's why the process
is essential. Otherwise, we'll be swept away by the tides. This generation is the remnant,
And there aren't many of us out there. Think about the next generation. Will they even
know that this is an option? Will they care? Will they even look to the Constitution as
a reaction, a recourse to the problems we're confronting? And in closing, that's why my
favorite part of the title of my paper, the Supreme Court, be damned. Thank you very much.
Thank you very much.