Cracking up

By DAVID S. BERNSTEIN  |  March 19, 2009

The state-sovereignty movement of that time was part of a fabric of anti-government sentiment that also included a rise in the "militia" movement — and the resolutions abruptly ceased in 1995, after Timothy McVeigh blew a hole in the Alfred P. Murrah Federal Building in Oklahoma City, killing 168 people.

Today's version is moving even faster, thanks in large part to the conservative-libertarian network that was formed and energized around Ron Paul's presidential candidacy, and the large online communities of liberal-hating conservatives.

Some national conservative figures, including Fox News and syndicated radio talk-show host Glenn Beck and commentator Michelle Malkin, have applauded the idea. And a few prominent elected Republicans, including South Carolina governor Mark Sanford, have recently cited the same state-sovereignty talking points in discussing their opposition to the federal stimulus bill.

Most other prominent Republicans have remained silent on the issue, but none have denounced it. That's hardly surprising; the angry anti-government conservatives and Ron Paul libertarians are important voting blocs in GOP primaries.

Sanford, who is courting both groups for his potential 2012 presidential bid, professes that he "loves the concept" of the state-sovereignty bills, in an interview appearing this week in the conservative John Birch Society publication The New American. He recommends in that interview that Tenth Amendment Movement supporters march on Washington, DC, to "insist that the Constitution be obeyed."

And former (and perhaps future) presidential candidate Mike Huckabee has not distanced himself from his campaign buddy Chuck Norris, who said and wrote this past week that Texas may soon have to secede.

Sovereignty in practice
The claims of these resolutions are indefensible on constitutional grounds, as several experts tell the Phoenix. "They rest on completely untenable interpretations of the Constitution's text, structure, and history, and they proceed as though the Civil War had been won by the Confederacy," e-mails Laurence Tribe of Harvard Law School. "These resolutions — not to put too fine a point on it — are off the wall."

Questioning federal overreach is not in itself unreasonable; it has been debate fodder for more than two centuries.

Nor is it outrageous for a state's lawmakers to collectively declare their disapproval of federal government's behavior. "That sounds to me as American as apple pie," says Richard Fallon, professor of constitutional law at Harvard Law School.

But the intent of these resolutions — the underlying idea of claiming "state sovereignty" — is not only to disagree with or vilify the federal government, but to provide a justification for resisting it, and for denying its authority and even its legitimacy.

The resolutions, and their proponents, are claiming that states can, on their own, declare federal laws unconstitutional — even if the Supreme Court disagrees — and refuse to recognize them within their borders.

They are simply wrong, explains Robert Bloom, a constitutional-law professor at Boston College Law School. "The Constitution allocates responsibilities between the federal and state governments, and the Supreme Court is the ultimate authority in interpreting that."

But the antifederalists don't like the courts' answers. So, they are claiming the authority for themselves.

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