Our founders built a system with numerous checks and balances. Three separate branches of government at the national level, and that placed against state governments. Throughout my entire lifetime the Federal government has existed superior to state and local governments and there has been no real state check on Federal power. This has extended so far that during my entire k-12 education I only ever learned the checks and balances that were built into the Federal government, never the balance between Federal and State governments. Recently we have seen this played out through the Affordable Care Act. In this case state governments can allow the Federal government to set up an exchange, or they can set up their own – as long as it is exactly what the Federal government wants. There is no balance here it is “You can do it my way, or I’ll do it myself.” There are numerous other places that I am sure each of you have seen this played out (EPA, NRC, or anywhere else you intersect with the Feds). The laws in place continue ratcheting down the free space for both citizens and state governments. Recently the Supreme Court has placed a very mild limit on this by restricting the Federal government from using elections data older than my mother in order to determine which states may be denied sovereignty over their own elections. However the restriction of using 5 decade old data is a very small check on Federal power indeed.
Much of the focus here at RedState recently has been on Senators. This makes sense due to the fact that winning a few winnable elections and replacing a few moderates with conservatives could drastically alter the Senate. However, any gain would be fleeting at best since at some point the makeup of the senate will revert either through a loss of seats, or from some conservatives moderating (a.k.a. selling out) their positions over time. I do not think our efforts should be focused exclusively on fighting for a what can be overturned the next election cycle.
What would I suggest then, to give up? Certainly not, we may only control one half of one third of the Federal government, but there is enormous strength in the conservative position at the State level. The only long term method to limit power wielded by the Federal government is to return that power to the States and People respectively, and no makeup of the senate will move far enough to ensure that happens. What if instead of asking the Federal government to give up power (through a good choice of Senators) we asked our State governments to take power back? The problem with the 10th amendment right now is that it has been rendered meaningless (unless you consider the ability to reject the implementation of laws based on 50+ year old data strength). My suggestion would be that new checks on the Federal government be put in place at the Constitutional level. My first suggestion is that some means of enforcing the tenth amendment be generated. Insomuch as the Senate is elected in order to represent the collective will of the citizens of each state any law in place that goes against the will of the citizens of the several states demonstrates a failure of the senators to represent their constituents in the present or to anticipate what their citizens will wish in the future. The states should have the ability to override their own senators as given by the following suggested amendment:
If at any time a majority of state legislatures pass resolutions requesting the revocation of any particular law then that law shall be immediately and retroactively revoked in its entirety. All fines collected on the basis of the law in the previous six years will be returned and all persons imprisoned under the law shall immediately be released. All regulations and executive orders based in the law shall immediately be revoked and all court decisions based on the law or interpretations thereof shall be null and void. Any executive order or court decision that does not have a clearly articulated basis in a given law can be nullified within the borders of any state by the state legislature.
6 years – the length of time for a senate seat. The senate will have had an entire turnover period to overturn the law.
Nullification – If there is no clear legal basis for a rule (i.e. an executive order not bound to any act of congress, or court decision separate from either the constitution or a law) then the states should be free to ignore such rules.
There is a reason for this particular approach. Politicians are much more likely to be willing to grab power than to cede power. This amendment does not ask any politicians to give up power, it instead asks state governments to take power back from the Federal government. Also, this approach does not give the authority to make laws (we have more than enough laws as it is), only to repeal laws. Also, this is uniquely capable of removing entire regulatory systems. If a certain regulatory environment has become overly burdensome (e.g. environment) then the states can send the entire thing back to the drawing board by eliminating the underlying law that served as the basis for both executive and judicial regulations. If the states find the current carbon regulations unduly burdensome they would have the option to request the revocation of the Clean Air Act of 1963 (and perhaps suggest an alternative in which non-toxins are removed from regulation). The same would hold for overreach with Fannie Mae and Freddie Mac, and any other Federal entity. Also note that certain judicial findings that are separate from the actual wording of documents may be ignored. Thus a “constitutional right” to “dignity” may be ignored since there is no clearly articulated constitutional right to dignity. Additionally
Note – When proposing amendments there should always be great care taken to be sure that the proposal is not one sided (D’s like it R’s hate it, or vice versa). This amendment would apply equally to ACA as to DOMA, or even the Civil Rights Act. The power is to revoke any law, and as such the government of California should like the amendment as much as the government of Mississippi.