States' rights revival in CA?

MAY 14, 2010


Political waters are boiling all across America, including California. One of the areas this is happening is the Tenth Amendment Movement, which takes seriously the last of the Bill of Rights, which reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Tenth Amendment folks insist that this means the federal government’s only legitimate powers are the few “delegated” or “enumerated” in Article I, Section 8 of the U.S. Constitution. Everything else the Feds aren’t supposed to do, but are to leave “to the States respectively, or to the people.”

In past years, the Tenth Amendment and states’ rights were most associated with the South’s attempts before the Civil War to protect slavery. Or the Jim Crow South’s attempts to maintain segregation. Those movements are now in the past.

Today a hotbed of Tenth Amendment activism, even of secession, is Vermont, home of the Middlebury Institute of left-wing scholar Kirkpatrick Sale, and a vigorous movement to keep the Feds from harassing Vermonters.

Vermont hosted the First North American Secessionist Convention in 2006, which proclaimed in the Burlington Declaration, among other planks, “Any government formed by and dependent upon a constitution to regulate its actions and affairs has certain legitimate powers delegated to it, but any powers not so delegated are reserved to the people of that state and their democratically chosen political bodies.”

Enter California

Another movement is the Tenth Amendment Center, which ranks third in Google’s rankings under “Tenth Amendment,” behind the usual Wikipedia entry and FindLaw’s entry. Most of its issues defy easy left/right dichotomies. For instance, the Center recently has been defending state raw milk laws, commonly associated with leftish health enthusiasts, against assaults from the federal FDA.

But it also defended Arizona’s recent controversial immigration law against claims that only the Feds have jurisdiction over immigration.

I talked with Bryce Shonka, the coordinator of the Center’s California Chapter. He confirmed that, in California especially, the movement straddles left and right. “We’re connecting with the Tea Party movement, and with the marijuana people on the other side,” he told me, referring to the initiative on the November ballot to legalize marijuana.

He said the Tenth Amendment Center actually was founded in 2006, when conservative Republican George W. Bush was president and Republicans controlled both houses of Congress. The center’s focus is “just a matter of connecting the two groups of people, no matter who is president. One of our most powerful campaigns now is to get people to stop thinking in terms of Republican and Democrat, liberal and conservative. The threat to liberty is the threat to all of the above.”

He said that resistance to federal control of health care is a major issue now in California. But another big issue is water in California’s Central Valley, specifically U.S. District Judge Oliver W. Wanger’s usurpation of control of the water in the Sacramento-San Joaquin Delta to protect smelt and salmon there.

“The federal response is to just cut off water to the Central Valley,” Shonka said. “Who decides for those farmers whether or not they have water for their farms should be decided in California. The bottom line: Controlling irrigation water is not one of the delegated powers of the federal government.”

Tea Partiers

A major force backing the lessening of federal power is the Tea Party movement, mostly but not exclusively made up of conservatives and libertarians. Some critics have charged that it’s a group of extremists.

“I’ve been to several Tea Party events in California,” Shonka observed. “What I heard from the speakers was nothing but moderate. They talked about the Founding Fathers and the Tenth Amendment. There’s nothing violent or radical about that. They had zero tolerance for violence. Furthermore, the tools we were given by the Founding Fathers make it unnecessary to be violent.”

He gloried in the diversity of the 50 American states. “If Vermont wanted to socialize every aspect of life, they can do that. We don’t want the federal government taking control of everything.”

On Arizona’s immigration law, he said that the border states have “for a long, long time been under attack from this influx of people. They can handle that any way they want. Border control and naturalization is a delegated power. But it’s also definitely a states’ rights issue. Where the federal government has not acted, the states can act.”

Marijuana in California

In 1996, progressive California took a states’ rights/Tenth Amendment action when voters, by a 56 percent to 44 percent margin, passed Proposition 215, legalizing medical marijuana.  The federal government did not recognize it. As Wikipedia noted:

This law has caused much conflict in the United States between states’ rights advocates and those who support a stronger federal presence….

Since the passage of Proposition 215, federal officials have tried various approaches – from criminal raids and prosecutions to Civil injunctions to threatening to seize any property leased for medical cannabis uses – to thwart or slow the progress of medical cannabis in California. It was not until March of 2009 that federal officials announced that they would no longer try to thwart medical marijuana distribution/use in California.

During his campaign, President Barack Obama signaled that he would cease the DEA’s raids in California as President.[14] On March 18, 2009, Attorney General Eric Holder announced “a shift in the enforcement of federal drug laws, saying the administration would effectively end the Bush administration’s frequent raids on distributors of medical marijuana.”[15]

Wikipedia, however, noted that some raids have continued.

Legalize pot?

If the initiative passes in November legalizing marijuana, while taxing and regulating it, Tenth Amendment issues will come to the fore much more intensely.

I talked to Dale Clare, executive chancellor of Oaksterdam University in Los Angeles, which describes itself as “America’s first cannabis college … founded in 2007 to provide students with the highest quality training for the cannabis industry. Our faculty is comprised of the most recognized names in the California cannabis legalization movement.”

If the California legalization initiative passes in November, “Some Feds won’t be happy, that’s for sure,” she told me. “We have a unique opportunity here. The federal government cannot order a state to pass and uphold a law. A state has a right to tax and regulate any commodity.”

She pointed out that, after alcohol Prohibition was repealed in 1933 by the federal government, states and counties still were allowed to ban booze, and some dry counties still exist today. And laws on the sale and regulation of alcohol widely differ among the states.

She said that, even before the official federal repeal of Prohibition went into effect, New York State actually passed laws regulating the sale and use of alcohol.

If California does legalize marijuana, she said she hopes President Obama doesn’t crack down on the citizens’ choice. “It’s just a waste of federal resources,” she said. “The states have a right to conduct social experiments. I think he will uphold that standard. He has way bigger fish to fry. I believe they are not going to waste federal resources to go against what the people want. This is not crackpot legislation, but the will of the voters.”

She said that, if the initiative passes, it actually would complement federal anti-crime efforts because taxes on marijuana sales would go to the government, instead of into the coffers of drug lords. Drug offenders being sent to prison also would be reduced in number.

Loss of faith in the Feds

All across America, “people are losing faith in the federal government,” Shonka said. “It’s not being the protector they expected. In every state, the Feds impose unfunded mandates,” that must be paid for by state taxpayers.

Indeed, the California Independent Voter Network calculates:

Today, the State of California spends over $12 billion dollars a year to comply with unfunded federal mandates alone.  The Clean Air Act, the Clean Water Act, the Homeland Security Act, the Individuals with Disabilities Act and the No Child Left Behind Act contain just a few of the tens of thousands of regulations imposed on our state and local governments by our representatives in Washington DC. More than 12% of California’s state budget goes toward paying for compliance with unfunded or underfunded mandates.

In 1995, President Clinton signed into law the Unfunded Mandates Reform Act, which was supposed to end unfunded mandates. It didn’t work.

Concluded Shonka, “Most people would rather have these decisions made in Sacramento than in Washington.”

John Seiler, an editorial writer with The Orange County Register for 19 years, is a reporter and analyst for His email: [email protected].

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