Dangerous ‘State Sovereignty’ Myth

Exclusive: In the U.S. system, the “supreme law” of the land is set by the Constitution and the federal government, though states, counties and cities have wide discretion over local matters. But problems arise when right-wingers start espousing the notion of “state sovereignty,” says Robert Parry.

By Robert Parry

During her half-term as governor, Sarah Palin would refer to the “sovereign state of Alaska.” In doing so, she was like some other governors who call their states “sovereign” as a rhetorical show of defiance against the federal government.

For many years, this practice has been popular among the states of the Old Confederacy and, more recently, in states that were not slave-owning but are now led by right-wing governors who believe the federal government has no business telling the states how to run their affairs.

James Madison, the principal architect of the U.S. Constitution

But the “state sovereignty” rhetoric today is moving beyond defiant words, as the Republican Party asserts that states should be allowed to change their voting rules to suppress the voting rights of blacks, Hispanics, Asian-Americans and young urban whites who are seen as likely Democratic voters.

The Republican intent is to transform much of the United States – not just the Old Confederacy but pretty much all states under GOP control – into a modern-day land of Jim Crow where the ballots of white rural voters will be given extra weight over black, brown and young urban voters.

This initiative, which is now before the U.S. Supreme Court in a case seeking to gut the Voting Rights Act, is essentially that the “independent sovereign” rights of states should trump the rights of racial minorities to vote, despite the Fifteenth Amendment, which gives the federal government the explicit power to protect those voting rights.

Based on oral arguments last week, many Court observers now believe that the five right-wing justices will strike down the heart of the law, Section Five, which requires jurisdictions with a history of racist voting laws to get prior approval from the federal government before they change their voting rules.

One of those right-wing justices, Anthony Kennedy, indicated that he felt Section Five was an unconstitutional infringement on Alabama as an “independent sovereign.” In other words, Alabama’s constitutional right to do what it wants should trump the right of minorities to participate fairly in the democracy.

However, while there is specific language in the Constitution prohibiting states from infringing on the right to vote, there is no language referring to states as “independent” or “sovereign.” That wording comes from the Articles of Confederation (which governed the country from 1777 to 1787), but was expunged by the Constitution, which transferred national sovereignty from the 13 original states to “We the People of the United States.”

State Prohibitions

Beyond dropping the language about “independent” and “sovereign” states, the Constitution also contains a long list of prohibited activities by the states, including bans on coining money, entering into treaties and acting against a foreign country (Article I, Section 10). The Constitution further dictates the structure of state governments, requiring them to operate as republics (Article IV, Section 4). Most significantly, the Constitution makes federal law “supreme,” giving federal courts the power to strike down state statutes deemed unconstitutional.

That provision in Article VI states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

In other words, the Constitution constrains what the states can do and sets rules for their structures. If, say, a state wanted to become a monarchy, the federal government would step in and say no. When 11 slave states tried to secede from the Union after Abraham Lincoln’s election in 1860, they were declared in rebellion and were militarily defeated by a federal army.

Other provisions in the three amendments following the Civil War – the Thirteenth, abolishing slavery; the Fourteenth, requiring equal protection under the law; and the Fifteenth, prohibiting racial discrimination in voting – further sent a clear message that the states were obliged to submit to the sovereignty of “We the People of the United States.”

However, it has remained popular in some circles to assert that the states possess something close to equal sovereignty with the federal government. Some legal scholars use the phrase “dual sovereignty,” suggesting that neither side is dominant, much like grade schools give out “participation trophies” for field-day competitions.

While such language may make the advocates of “states’ rights” feel better, it isn’t really true. By definition, “sovereignty” means “having supreme rank, power, or authority.” It is, in that sense, a superlative. There can be only one “sovereign” and – under the U.S. Constitution – it is clearly “We the People of the United States” and the officials that we elect to national office.

Of course, states have some rights as do towns and individuals. You can claim, I suppose, that you have some “sovereignty” over yourself, that your family has “sovereignty” over your home; your county board has “sovereignty” over local affairs; and your state has “sovereignty” over much state business.

However, all those “sovereignties” are limited by law – and the “supreme” law of the land is the U.S. Constitution and the federal statutes that are enacted by the U.S. Congress and signed by the President.

Silly Defiance

Normally, of course, no one would care when Palin and other right-wing political figures call their states “sovereign” as a show of defiance. The problem comes when they start believing it. In that sense, “state sovereignty” is a bit like the honorific title “Kentucky colonel.” No one minds guys calling each other “Colonel” – unless they start taking it seriously and leading soldiers into battle. Then real harm can be done.

Similarly, real harm can derive from the myth of “state sovereignty,” especially now that the Right has captured the majority of the U.S. Supreme Court. Anthony Kennedy, John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito are political activists seeking to impose a Neo-Confederate interpretation on the Constitution.

These justices may call themselves “strict constructionists” who believe in a literal reading of the Constitution. However, if they destroy the Voting Rights Act based on Kennedy’s thesis about “independent sovereign” states, they will be seeing language in the Constitution that isn’t there.

Nowhere in the document is there wording about states being “independent sovereigns.” And, the words aren’t there because the Framers – the likes of George Washington and James Madison – willfully removed them, with prejudice as a court might say.

General Washington despised the concept of state sovereignty viscerally because of his experience as commander-in-chief of the Continental Army, which often suffered when states reneged on promised support. Madison saw the Articles of Confederation threatening the nation’s hard-won independence and holding back the nation’s economic growth.

As the chief architect of the Constitution, Madison gave the federal government sweeping authority over a wide variety of national matters, including commerce. He wanted to give Congress direct power over state laws but settled for federal courts having the authority to review and strike down state statutes. [For more on this history, see Robert Parry’s America’s Stolen Narrative.]

Yes, I know today’s Neo-Confederates make much of the Tenth Amendment, which asserts that “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.”

But the Right’s historical revisionists miss the key point here. The Constitution already had granted broad powers to the federal government so the states were left largely with powers over local matters — and even those actions could be struck down if they were found to violate federal law.

To further appreciate how modest the Tenth Amendment is, you must compare its wording with Article II of the Articles of Confederation, which is what it replaced. Article II stated that “each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated.” In other words, the power relationship between the states and the federal government had been flipped.

Still, today’s Neo-Confederates make mischief with the inconsequential Tenth Amendment, transforming it into some grand governing principle when it was just a rhetorical sop to the Anti-Federalists, who fiercely opposed the Constitution because they recognized what it was, a major shift of power from the states to the federal government.

Also, throughout American history, “states’ rights” have been associated with some of the most shameful episodes, including the secession of the Confederate states in defense of slavery and later the imposition of racial segregation across the South through legal trickery and terrorist violence.

Surely, the federal government has not been free from fault. It has too often participated in or tolerated racist and other anti-democratic acts, but it also has – during some of the nation’s proudest moments – intervened on behalf of human rights as enshrined in the Constitution. That history is now being tested again.

 [For a limited time, you can purchase Robert Parry’s trilogy on the Bush family for only $34. For details, click here.]

Investigative reporter Robert Parry broke many of the Iran-Contra stories for The Associated Press and Newsweek in the 1980s. You can buy his new book, America’s Stolen Narrative, either in print here or as an e-book (from Amazon and barnesandnoble.com).

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10 comments on “Dangerous ‘State Sovereignty’ Myth

  1. John on said:

    I certainly agree that the feds have jurisdiction over voting rights, as that is clearly specified by the 15th Amendment.

    But regarding “…the Constitution also contains a long list of prohibited activities by the states…” and, two paragraphs later, “…the Constitution constrains what the states can do…”, you might have balanced that by adding that the list of prohibited activities by the federal government is not only a longer list, but essentially, infinite:

    Tenth Amendment (Bill of Rights, US Constitution):
    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.

    Some disparage Tenth Amendment efforts, citing the Supremacy Clause (Article VI, Clause 2, US Constitution). But many others consider the Supremacy Clause one of the more abused and misrepresented clauses in the US Constitution. Note the phrase from that section that’s never mentioned by those who claim unlimited federal powers: “…and the Laws of the United States which shall be made in pursuance thereof…”; i.e. a law that clearly violates the Tenth Amendment can’t possibly meet that requirement. Critics of Tenth Amendment efforts claim that all federal laws supersede state laws, which seems nonsensical, as the logical conclusion would make the federal government’s discretion the only limit of its powers. Especially when considering the context of the era, no state would have ratified a US Constitution that allowed the federal government to pass unconstitutional laws that were then upheld by its own judicial branch.

    Alexander Hamilton explained at New York’s ratifying convention that, on the one hand, the “acts of the United States … will be absolutely obligatory as to all the proper objects and powers of the general government,” but it is also true that “the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding.”

  2. altfeed on said:

    State sovereignty is nothing more than a single rung on the ladder stretching from “global state” sovereignty (i.e. one world government) to individual sovereignty. The further down the ladder toward decentralization, the greater the individual freedom. As individual freedom also means individual risk, those who desire control over other individuals, for purposes of plunder, capitalize on the risk, and spread fear of this risk in their efforts to centralize and loot ever greater numbers of individuals. Fear is such a successful tool that this centralization of power develops into an entire parasitic caste of society (government and all its cronies), which has used increasingly effective vehicles (“education,” radio, television), to convince everyone this is all necessary for their security. For a long time this development has progressed toward the top rung of the ladder – one world government – but it is now being disrupted by an unexpected explosion: the Internet.

    States are simply the vehicles by which controllers centralize. Smaller states mean there are fewer people under the domination of the state (and therefore fewer people to loot), as well as a greater number of states overall, and therefore greater competition between states. In the prevention of this obviously undesirable situation (undesirable from the perspective of control, which would prefer absolute monopoly over statism and looting), fear has proven the most effective tool. Fears will thus be spread, taking the shape of whatever is most hated or taboo in the current age (today we are obsessed with race, so that is most often utilized), to discourage any movement toward decentralization or individualism.

    People arguing on either side will cite legal documents such as the US Constitution and others when it suits their argument. States must have state-imposed law to facilitate looting. But state-imposed law ignores the most fundamental of individual laws, which civilized people follow every day, without even thinking about it, usually throughout the course of their entire lives: non-aggression, and self-ownership. The basic error of statism is the assumption that the state, and its associated looting/legal code, are necessary to enforce these fundamental laws. It isn’t..

    While “state sovereignty” as defined in the US is just one rung further away from absolute centralized control over all individuals, it is nevertheless an important one, for nation-states can occupy entire continents, and even the entire world.

    ALT FEED
    http://www.altfeed.com

  3. FGerry on said:

    Everybody says there is this RACE problem. Everybody says this RACE problem will be solved when the third world pours into EVERY White country and ONLY into White countries.
    The Netherlands and Belgium are just as crowded as Japan or Taiwan, but nobody says Japan or Taiwan will solve this RACE problem by bringing in millions of third worlders and quote assimilating unquote with them.

    Everybody says the final solution to this RACE problem is for EVERY White country and ONLY White countries to “assimilate,” i.e., intermarry, with all those non-Whites.

    What if I said there was this RACE problem and this RACE problem would be solved only if hundreds of millions of non-Blacks were brought into EVERY Black country and ONLY into Black countries?

    How long would it take anyone to realize I’m not talking about a RACE problem. I am talking about the final solution to the BLACK problem?

    And how long would it take any sane Black man to notice this and what kind of psycho Black man wouldn’t object to this?

    But if I tell that obvious truth about the ongoing program of genocide against my race, the White race, Liberals and respectable conservatives agree that I am a naziwhowantstokillsixmillionjews.

    They say they are anti-racist. What they are is anti-White.

    Anti-racist is a code word for anti-White.

  4. The 13th amendment did not abolish all slavery. Read the 13th carefully,as it permits state sponsored slavery under the rubric of incarceration. Slavery continued after Reconstruction in parts of the south into the 20th century. W

  5. Confederate Mike on said:

    There will be another conflict within our lifetime and this time The States will overcome their struggles towards freedoms from an oppressing and overbearing centralized government which is more and more becoming and turning this land into a totalitarian land of enslaved citizens.

    Deo Vindice, Confederate Mike.

  6. Frances in California on said:

    Confederate Mike, you been smokin’ the premium stuff . . . the disaggregation of the United States will have nothing whatsoever to do with “States overcoming their struggles”. It will be done incrementally by multinational corporations and ruin everything that American individuals now hold dear.

  7. John in Nebraska on said:

    I agree with just about everything Robert Perry says except the remark that “states have some rights.” States do not have rights; they have powers. Compare the 10th Amendment and the 9th Amendment. The latter speaks of the rights of individuals, while the former speaks of the powers of the state governments. The distinction is important. The rights extended by the Bill of Rights and other amendments, notably the 14th Amendment, protect citizens from abuses of governmental power.

  8. DDearborn on said:

    Hmmm

    People pay close attention to the wording used in this article. As already commented on ther term “rights” is intentionally being misused here. Also twisted into a knot is the term “sovereign”. It is truly contemptable when attempting to invoke slavery as an excuse to try and eviscerate the power of individual states. Even a cursury reading of the writings of the founders shows an unambigious and clear intent that the states would be vested with more power than the Federal government. In fact the framers went way out of their way to limit the power of the Federal Government.

    But by far the most egrious statement made in this article can be found in the very first sentence. PEOPLE THE ‘SUPREME LAW OF THE LAND” IN OUR REPUBLIC IS NOT VESTED IN THE FEDERAL GOVERNMENT NOR THE STATE GOVERNMENT; NOT EVEN THE CONSTITUTION. PEOPLE THE SUPREME LAW OF THE LAND AND ALL THE POWER THAT IT REPRESENTS IS VESTED IN THE CITIZENS OF THIS GREAT NATION.

    The Federal government DOES NOT HAVE THE POWER TO CHANGE THE CONSTITUTION. Only the citizens have that power thru thier individual state governments.
    This article is an attempt to justify an all powerfull Federal Government which was never the intention of the founding fathers. Nor is this intent born out when the Constitution is taken as a whole. Suggesting that isolated and very limited powers bestowed upon the Federal government is somehow license to supercede all the other checks and limitations placed upon the powers by the Constitution is a transparent attempt at subverting the Constitution and the powers bestowed NOT upon the Federal Government but rather the citizens of this Republic. Shame on you.

  9. yall are sick on here and crazy

  10. The Supremacy Clause, has anyone here ever heard of it???/