By Mark David Blum, Esq.
Who is in charge? States Rights have rubbed up against Federal arrogance and thus far, the Federal Courts back the Federal Government.
A new era is upon us. It first reared its head in Oregon when the State recognized a right of its citizens to assisted suicide. The Federal Government unsuccessfully fought Oregon tooth and nail to the United States Supreme Court. Justice Kennedy wrote for the majority recognizing the dominance of a State recognizing a right greater than those recognized under Federal law. Truly, I was surprised.
Then, in one of the most backwards reasoned and appalling decisions, the Supreme Court relied upon one of the narrow enumerated powers of Congress and applied the principles of the Supremacy Clause and said Federal Law trumps State Law.
When the question again came before the Court; this time via California and its Medical Marijuana Laws, the Court relied upon the Commerce Clause of the Constitution and said that the enabling clause trumped any State’s claim to a “right”. The conservative majority started backwards and assumed that power started at the federal level and trickled downward. They rationalized that since Congress had not surrendered control over marijuana, that Congress and not California had retained the power to decide whether Californians can possess marijuana.
For the record, the Commerce Clause in Article I of the Constitution is an enabling clause. Government is not an ‘entity’ but rather an operation and means toward an end. To say that a provision written to enable Congress to regulate commerce between the States can be expanded to overpower a State’s authority and the will of the People who live there, strips the States of all individuality and power.
The only way I personally reconcile these two cases is that the majority recognized that each and every one of us could find ourselves in need of assisted suicide. Not every one of us could face the very real possibility of needing marijuana.
But now comes a direct assault on the Second Amendment and a State recognizing a class of its citizens entitled to possess weapons. In opposition stands the Federal Government seeking to strip a class of citizens of a right recognized under the State Law.
Thanks to the Supreme Court and zealous federal prosecutors, the rules of the game have changed. No longer is a State free to regulate the health, education, welfare, and policing of its citizens. Now all States must surrender any rights and benefits conferred which are above and beyond protections recognized by Congress. Since Congress cannot even shield Humvees in Iraq, how much can we trust them to protect our rights as New Yorkers? The Supreme Court has given free reign to the Federal Government to dismantle every right in every State that is more protective than how the Federal agents interpret them. It is baffling that any American would ever want to surrender their rights under the Second Amendment.
This chaos all emanates from the Neo Conservative movement and their court packing scheme. Theirs has become a warped political perspective that begins with the principle that only those rights set forth in the constitution belong to the People and if not so mentioned, they do not exist.
Such an analysis is contrary to every stated intention by every Founder. They were not afraid of the People; theirs was a fear of tyrannical government. Our founding documents were written specifically to diffuse and limit power of government; not the People. The constitution was a document of limitation and those powers enumerated therein are specific and finite. For the activist judges in the conservative wing of just about any Court, all these founding principles do not apply and all power in the nation comes from government to the People. Their theory and perspective is flatly wrong. More importantly, it is dangerous.
Remember the Declaration of Independence’s famous line, “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” Our Founders’ radical change to the then current political theory was the recognition that “power for governing” arises from below; from the People. Authority does not come from the ‘State’ but rather from the governed. This did not change when the Constitution was written; the theory was codified AS the Constitution.
Therein lie the uniqueness of the American experiment; never attempted before or since. Here, we have a political construct that presumes as a natural and God given a priori knowledge that every liberty imaginable is within me as a human being, and only those I choose to surrender for the benefit of the greater good are the limitations on those liberties
to which I must adhere. That is the social contract of my Forefathers and Founders and I expect the current generation to maintain that principle.
Central to our constitutional history is the premise that the Constitution guarantees to all citizens, born and naturalized, certain fundamental rights and freedoms. It is the responsibility of the Federal Executive and Judiciary to see that these basic laws and protections are available to every American citizen. That is the sole mission of the Federal Government. It is the arbiter for keeping the peace and an open pathway for commerce and communication. Elected officials and their appointees are not our parents nor guardians nor “leaders”.
Likewise a vital plank of our constitutional republic is the understanding that while we are all American citizens, we are likewise citizens of our respective States and Commonwealths. Nowhere is a State prohibited from recognizing greater rights and benefits than the minimum assured by the Federal Constitution. The Federal Constitution establishes the floor standard. States are free to go above and beyond that and are encouraged to do so.
It is the original compact between all the States and affirmed nearly every time the question came before the Supreme Court, that the Federal Constitution creates a set of minimum rights and protections available to every American. This was later codified in the 14th Amendment. There are absolutely NO prohibitions found anywhere in the federal constitution that say a State cannot recognize MORE rights and freedoms than those guaranteed by the Federal constitution. Meaning, that the federal constitution sets the floor below which no State can go but above which every State is welcome to rise.
The Tenth Amendment to the Constitution makes that premise clear. In recognizing that only certain powers had been surrendered by the People and the States for the greater good in the creation of a the necessary evil called “the Federal Government”, our Founders made it clear that but-for those enumerated powers and limitations, EVERY other right and freedom belongs to the States and to the People.
Loyalty matters and citizens do owe loyalty to their government. The problem is resolving to which principles we remain loyal and to which government. Always, the answer is the same: We have to be loyal to that with which we are stuck, the United States Constitution. In whole and in its several parts, the Constitution is a settlement agreement. Under no interpretation or historical understanding was the document ever intended to create an oppressive and overpowering federal government that can strip citizens of rights.
Asking 21st century Americans to live under rules crafted by the hands and hearts of 18th century philosophers is akin to asking a grown man to wear the clothes he wore as a child. So said Thomas Jefferson. Society changes. Thinking changes. So too do politics, economies, and science. We cannot today be held to centuries old thinking and dogma. Our constitution was written to be a living document subject to changing theories and attitudes. We have to accept that. Failure to do so would bind us in slavery to our faults and mistakes and block our growth and maturation as a People and as human beings
Our one saving grace acknowledged by our Founders was that every American would be armed with, if they so chose, all the weapons of a soldier. Through such a grant of liberty, no army and no corrupt government could ever wrestle this nation from its true owners; the People of the United States. For this reason alone, our second most fundamental right is the right to keep AND bear arms. This implies not only the right to possess, but also the right to carry and show.