Saturday, May 11, 2013

States Rights Showdown in Kansas

First things first - The American Civil War began not as an issue about states rights but about protecting the institution of slavery. States rights were not even raised as an issue at the time that the first seven states declared that they were no longer part of the Union. The Vice President of the Confederacy, Alexander Stephens, made that point clear when he noted that "Slavery is the cornerstone of the Confederacy". As not one of his fellow secessionists uttered a word of rebuke, protest, or clarification to their VP's claim, we can consign the later-flowered claim to the dustbin of revisionist history.

What we do have today, however, is a situation in which states rights have truly become an issue. Our national* government has taken numerous steps that would be most generously described as overreaches of its authority. A number of states, such as Montana, Idaho, Alaska, and Kansas have in recent years crafted legislation that, in a limited manner, asserts their authority and sovereignty.

What has been done is simple yet effective. State laws have been specifically made to make it legally impossible for the federal/national government to enforce portions of the US Code.

"U.S. Attorney General Eric Holder has told Kansas Gov. Sam Brownback that a new state law attempting to block federal regulation of some guns is unconstitutional and that the federal government is willing to go to court over the issue...........

Kansas' law declares that the federal government has no authority to regulate guns, ammunition and accessories manufactured, sold and kept only in Kansas. The law also makes it a felony for a federal agent to enforce any law, regulation, order or treaty covering those items.

The new statute says that Kansas-only guns, ammunition and accessories aren't a part of interstate commerce, which the federal government regulates under the U.S. Constitution. But in a letter to Brownback, Holder said the Constitution prohibits states from pre-empting federal laws."

The argument is a good one. The US has laws that regulate firearms, but the only real authority that the Constitution gives the government to enforce these is the Commerce Clause. What these states are doing is declaring through the medium of state law that firearms (Or other related devices) made, sold, and possessed in their respective states do not fall within the legislative or regulatory authority of the government of the United States. 

An interesting facet of this situation is that a legal battle over such laws will likely call into question the ruling of the US Supreme Court in the case of Wickard v. Filburn.  This case is a standard reading in virtually every class that covers Constitutional Law. A farmer named Roscoe Fillburn was fined for growing more than the allowable amount of wheat on his farm. In an era in which many people had too little cash to buy food, the price-fixing scheme of  FDR (What didn't he think he could regulate?) took the authority of the US government right to to the gate of one's own farmland in order to keep prices high. Fillburn did not sell his wheat but kept it to feed his cattle, so his argument was that he actions did not affect interstate commerce. Several rulings and appeals ensued, with Fillburn winning a key victory in US  District Court. A common-sense approach or course would be that neither the Commerce Clause nor any other law or regulation can tell someone what they can or cannot do on their own property as doing as it was not inherently illegal, such as dumping hazardous waste. Yet here we were, with Fillburn's case appealed yet again by the US government and going to the Supreme Court.

FDR, the Obama of his day, and an admirer of Mussolini and Uncle Joe Stalin, had had enough of the Supreme Court and all of their silly what-is-Constitutional-or not arguments. He wanted to rule by decree. His answer was to threaten to pack the court with more justices (The number was nine but that was not etched in stone at the time) that would support the tyrant. That threat worked; the vote in favor of FDR's plan was 8-0 with one (I believe it was ) abstention.

The majority opinion justified the regulation and fine by the following twisted explanation.

Since Fillburn grew enough wheat to provide sufficient feed for his livestock, his actions fell under the purview of the Commerce Clause. The fact that he did not need to buy wheat on the market, even within his own state, was deemed to affect interstate commerce.

Like Kelo v. New London and the Obamacare decisions, Wickard is the law of the land. If Obama gets another open space on the court for an appointee of his choosing, the remnant of protection that we have in the Supreme Court, which is literally hanging by a thread, will be gone.

I admit that I was surprised that Justice Roberts, in casting his lot with the soft totalitarians, chose to blatantly lie and pretend that the mandate to purchase health insurance could be considered a tax instead of falling in line with Wickard v. Fillburn. 

Roberts may have feared the implications of the 1995 ruling of United States v. Lopez**. Wickard took a hit in that ruling, a fact that no doubt chafes at Obama. In that case, the US government tried to push the Commerce Clause to mean that it could order local schools about.

I hope that Kansas and the other states do not back down from Holder's threats. This is a case that they have more than a fairly decent chance of winning. Even if they lose, the people will then have no reason to deny to themselves that the Constitutional machinery of our nation is gone, so even a failure in this case would be a blessing.

*The use of the term "Federal" was a clever move by supporters of our Constitution to lend weight to their arguments in support of what came to be our noble Law of the land. While the document provided for a national government, the supporters wisely grabbed the term "Federalist" to force opponents of the document to be referred to as anti-Federalists. The strategy worked. The US has a national government with federalist elements.


"The Court reasoned that if Congress could regulate something so far removed from commerce, then it could regulate anything, and since the Constitution clearly creates Congress as a body with enumerated powers, this could not be so. Rehnquist concluded:
“ To uphold the Government's contentions here, we have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do. ”

The Court specifically looked to four factors in determining whether legislation represents a valid effort to use the Commerce Clause power to regulate activities that substantially affect interstate commerce:
Whether the activity was non-economic as opposed to economic activity; previous cases involved economic activity.
Jurisdictional element: whether the gun had moved in interstate commerce.
Whether there had been Congressional findings of an economic link between guns and education.
How attenuated the link was between the regulated activity and interstate commerce.

It is important to note that although the ruling stopped a decades-long trend of inclusiveness under the commerce clause, it did not reverse any past ruling about the meaning of the clause. Later, Rehnquist stated that the Court had the duty to prevent the legislative branch from usurping state powers over policing the conduct of their citizens. He admitted that the Supreme Court had upheld certain governmental steps towards taking power away from the states, and cited Lopez as a decision that finally stepped in to check the government's authority by defining clearly between state and federal powers"

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