Once upon a time, thirteen colonies belonging to the British Empire got tired of being told how to live be a tyrant who ruled from across the sea. They joined together, putting their regional differences aside and declared their independence. That event founded the greatest country the world has ever seen.
The several, independent colonies decided that for mutual benefit, there were some things that they could better as a group; but most of the matters could be solved locally. They met and developed the Constitution to create a republic, where the colonies were free to run their lives as they wanted and their participation on the federal level would be limited to a few enumerated powers.
While the story is true, it is a very simple, basic explanation of the founding of America and the Constitution of the United States. I think it outlines a very important aspect that is often overlooked, especially now. Contrary to popular belief, the United States is not a democracy, it is a representative republic. Thirteen independent states joined together and formed a union, they created a federal government and carefully balanced not only executive, legislative and judicial powers, but they were also careful to balance state and federal power. While the strength of the federal government was of great debate, the Constitution and the Bill of Rights simply explained the relationship. The Bill of Rights was a compromise between the federalists and the anti-federalists, to further protect the sovereignty of the independent states.
The several states created federal government, not the other way around. States’ rights are not a throwback to the Jim Crow era, not a code for racism or slavery. States’ rights reflect the 10th Amendment, which states that the power not delegated to the federal government are left to the states or the residents. This gets blurred by the so called supremacy clause or the necessary and proper clause, which have been interpreted to allow the federal government to run roughshod over the states. If the federal government was totally supreme, why bother even having a Constitution? If the federal government was not limited in its power and scope, why is there a list of enumerated powers?
What recourse do the lowly states have to remedy this situation? Most recently, we have seen several states passing laws that nullify federal laws. Laws like Obamacare, indefinite detention, laws prohibiting TSA searches and now even nullifying gun control laws that might pass through Congress are being passed by states all across the country. The states are exerting their authority. This is not a new concept, nullification has been used before. Northern states nullified fugitive slave laws, states nullified the Alien and Sedition Acts and the Separate but Equal concept of the Brown v Board of Education. Before you jump on the ‘those were all 60 years ago or longer, nullification can’t work now’ I have some more and not those crazy right wing nut ideas. Several cities across the country are what are called a ‘sanctuary city,’ a city where federal immigration laws are not enforced or nullified. Several states continue to practice the concept of nullification through state laws allowing for the medical and/or recreational use of marijuana. Last time I checked, drug legalization and illegal immigration were issues dear to the heart of democrats, not right wing whackos.
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