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A Less Perfect Union: How Will Conservatives Restore States’ Rights?

Note: the following article was originally written in early June for another venue, but I’ve reprinted it here because I think its point is still relevant.

Thanks largely to the Tea Party movement, the United States is thinking harder about individual liberty and states’ rights than she has in years. But despite identifying the problem, conservatives aren’t any closer to enacting a viable long-term solution for taming our federal leviathan.

Several efforts show promise. Many states have challenged the constitutionality of ObamaCare’s individual mandate to purchase health insurance, guaranteeing an eventual ruling from the Supreme Court. Though worth doing, that’s far too risky a basket to put all our eggs in, since it relies on a majority of the justices to rule based on the text of the Constitution rather than their personal ideologies.

In his popular book Men in Black, constitutional scholar and talk radio host Dr. Mark Levin suggests that Congress should restrain such activist judges via its constitutional authority to place limits on the courts’ jurisdiction and to impeach especially odious judges, and advocates constitutional amendments to give judges term limits and give Congress a supermajority veto over Supreme Court decisions. All these proposals are worth exploring in further detail, but even if enacted, there would still be legislative statism to deal with. 

In Minnesota’s 2010 gubernatorial race, unsuccessful Republican nominee Tom Emmer backed a state constitutional amendment forbidding federal laws from taking effect without approval by a two-thirds vote in the state legislature. This proposal’s practical failings are obvious—preemptively nullifying all federal laws until the high bar of supermajority support is met would drastically complicate the law’s execution, and there’s no reason to expect state lawmakers’ decisions will be significantly more pro-Constitution that Congress, instead of simply turning on whether a particular majority happens to agree with whoever controls Capitol Hill at any given time.

In his recent book Power Divided is Power Checked, talk radio host Jason Lewis floats a more radical solution—a 28th Amendment, which would expressly affirm each state’s right to secession: “any state whose inhabitants desire through legal means and in accordance with state law to leave this union of the several states shall not be forcibly refrained from doing so.”

Secession is one of the Right’s more heated inter-movement debates, often distinguishing Libertarian from Republican, Northerner from Southerner. This conservative believes secession-at-will is a dangerous doctrine which undermines the rule of law and forgets the nation’s founding principles. Washington, Hamilton, Jefferson, and Jay all considered the national Union an indispensible safeguard of liberty, and “Father of the Constitution” James Madison explicitly denied secession’s legitimacy, explaining that, as a mutually-binding legal compact, the Constitution cannot be broken by any single party.

Moreover, conservatives need to be honest about secession’s full implications—by breaking away from the country, a state wouldn’t merely be rejecting an unjust administration, but also rejecting our very Constitution as no longer worth defending within the system of government it establishes.

So what is the answer? Taking unconstitutional laws to court would certainly be worthwhile. So would Levin’s proposed remedies. But these aren’t magic bullets, and conservatives need to recognize that the problem is more complex than “good states versus evil feds.” Indeed, bad national politicians don’t just fall from the sky; they start out as bad state and local politicians.

Why do so many Americans accept statism? Because the rest of us have failed to be vigilant in our own backyards. For decades, we’ve let progressive presuppositions about government and society gradually infect our politics, education, and culture. To really change course, we must retake our institutions at the local level, particularly with renewed scrutiny of what our schools are—and aren’t—teaching. We can’t expect future generations to recognize betrayals of our founding principles if they don’t even recognize names like Locke or Publius.

We didn’t get here overnight, and we shouldn’t expect a constitutional rebirth overnight either. Every level of American government and society needs to be scrubbed clean. Meaningful, lasting reform is the work of generations, which will demand from each of us more patience, tenacity, and fortitude than ever before.

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