Skip to comments.How California lost its sovereignty
Posted on 04/15/2007 12:02:47 AM PDT by NormsRevenge
California is supposed to be sovereign under the Constitution of the United States. There is no higher government authority above California. The Constitution provides for parallel sovereignty for the federal and state governments, each with its own realm of authority.
The federal government is not supposed to have a superior status. The 10th Amendment emphasizes that powers not specifically allocated to the federal government by the Constitution are held by the states or the people.
The Constitution endows the states with ultimate sovereignty because they can change the Constitution. Article V of the Constitution states that "on the Application of the Legislatures of two thirds of the several States, (Congress) shall call a Convention for proposing Amendments" subject to ratification by three-fourths of the states.
The states have submitted more than 500 requests for such a convention to Congress, with the required two-thirds of the states asking for such conventions. The state applications for an Article V convention are registered in the Congressional Record. Congress has violated the Constitution by ignoring these requests. In so doing, Congress has destroyed one of the checks on federal power that the founders had implemented.
The states have thus lost their sovereign ability to change the Constitution. This loss was in part the fault of the states themselves when they adopted the 17th Amendment to have a direct election of senators by the citizens rather than the original constitutional provision of having the state legislatures elect their senators. This situation could be reversed by the repeal of the amendment if two-thirds of the states call for it. But Congress refuses to comply.
Some people fear that a constitutional convention might propose amendments that will limit our liberty. However, any amendment would have to be ratified by three-fourths of the states. Few of the many past proposed amendments were ratified. The convention could also propose amendments that would enhance liberty, particularly if the convention is called by the state legislatures to limit the power of the federal government. Indeed, many of the state calls for a convention have sought to limit federal taxation. This may be the reason Congress refuses to comply.
Many legal scholars think that the federal government has abused its constitutional authority over interstate commerce by interpreting all economic activity as being subject to federal authority. The federal government has gone around the 10th Amendment with revenue sharing that has strings attached, conditions that in fact enable the federal government dictate policy to the states. Moreover, the Supreme Court has in effect amended the Constitution for the worse when it has interpreted the commerce and other clauses in favor of federal power.
Regardless of whether one fears or welcomes a constitutional convention, the Constitution authorizes it, and if we are to have a rule of law under the Constitution, Congress must follow the provisions of Article V. Liberty is better served with divided powers than with power concentrated in the federal government.
Two lawsuits, Walker v. United States and Walker v. Members of Congress, have been initiated in federal courts to make Congress obey Article V. The refusal of Congress to comply with Article V has received little public attention. Those of use living in California should be aware that our individual sovereignty as citizens is also cut short when our state representatives have lost their constitutional authority. We no longer have a real Constitution and rule of law when Congress arrogantly asserts supremacy over the states.
Are Americans to have sovereign states as authorized by the Constitution, or will the states be demoted to mere administrative provinces under an all-powerful central government?
On federal supremacy, Chief Justice John Marshall in M’Culloch v. Maryland (1819) stated:
“This government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now universally admitted. But the question respecting the extent of the powers actually granted is perpetually arising, and will probably continue to arise as long as our system shall exist.
“In discussing these questions, the conflicting powers of the general and state governments must be brought into view, and the supremacy of their respective laws, when they are in opposition, must be settled.
“If any one proposition could command the universal assent of mankind, we might expect it would be this-that the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result necessarily from its nature. It is the government of all; its powers are delegated by all; it represents all; and acts for all. Though any one state may be willing to control its operations, no state is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts.
“But this question is not left to mere reason: the people have, in express terms, decided it by saying, this Constitution, and the laws of the United States, which shall be made in pursuance thereof, shall be the supreme law of the land, and by requiring that the members of the state legislatures, and the officers of the Executive and Judicial departments of the states shall take the oath of fidelity to it.
“The government of the United States, then, though limited in its powers is supreme; and its laws, when made in pursuance of the Constitution, form the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding.”
...”We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transecended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.”
In Jacobson v. Com. of Massachusetts, 197 U.S. 11 (1905), it was declared:
“[Re: Implementation of the State’s “police powers”] “....The mode or manner in which those results are to be accomplished is within the discretion of the state, subject, of course, so far as Federal power is concerned, only to the condition that no rule prescribed by a state, nor any regulation adopted by a local governmental agency acting under the sanction of state legislation, shall contravene the Constitution of the United States, nor infringe any right granted or secured by that instrument. A local enactment or regulation, even if based on the acknowledged police powers of a state, must always yield in case of conflict with the exercise by the general government of any power it possesses under the Constitution, or with any right which that instrument gives or secures. Gibbons v. Ogden, 9 Wheat. 1, 210, 6 L. ed. 23, 73; Sinnot v. Davenport, 22 How. 227, 243, 16 L. ed. 243, 247; Missouri, K. & T. R. Co. v. Haber, 169 U.S. 613, 626, 42 S. L. ed. 878, 882, 18 Sup. Ct. Rep. 488.”
As stated by Justice O’Connor in California Coastal Comm’n. v. Granite Rock Co., 480 U.S. 572 (1987):
“[S]tate law can be pre-empted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted. [Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm’n, 461 U.S. 190,] 203-204 [(1983)]; Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U.S. 141, 153 (1982); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). If Congress has not entirely displaced state regulation over the matter in question, state law is still pre-empted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 (1963), or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress, Hines v. Davidowitz, 312 U.S. 52, 67 (1941).” Silkwood v. Kerr-McGee Corp., supra, at 248.”
...” As we explained in Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 718 (1985), it is appropriate to expect an administrative regulation to declare any intention to pre-empt state law with some specificity:
“[B]ecause agencies normally address problems in a detailed manner and can speak through a variety of means, . . . we can expect that they will make their intentions clear if they intend for their regulations to be exclusive. Thus, if an agency does not speak to the question of pre-emption, we will pause before saying that the mere volume and complexity of its regulations indicate that the agency did in fact intend to pre-empt.”
In the recently released Supreme Court decision in Printz v. United States and Mack v. United States, (June 27, 1997), Judge Scalia for the Court summarized:
....”These problems are avoided, of course, if the calculatedly vague consequences the passage recites ‘incorporated into the operations of the national government’ and ‘rendered auxiliary to the enforcement of its laws’are taken to refer to nothing more (or less) than the duty owed to the National Government, on the part of all state officials, to enact, enforce, and interpret state law in such fashion as not to obstruct the operation of federal law, and the attendant reality that all state actions constituting such obstruction, even legislative acts, are ipso facto invalid. See Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 248 (1984) (federal pre-emption of conflicting state law). This meaning accords well with the context of the passage, which seeks to explain why the new system of federal law directed to individual citizens, unlike the old one of federal law directed to the States, will ‘bid much fairer to avoid the necessity of using force’ against the States....”
State laws are smacked down with easy regularity and little regard for the Constitution.
We used to be a republic.
http://www.article5.org/ is the website dedicated to these lawsuits.
If any one proposition could command the universal assent of mankind, we might expect it would be this-that the government of the Union, though limited in its powers, is supreme within its sphere of action.
-- the people have, in express terms, decided it by saying, this Constitution, and the laws of the United States, which shall be made in pursuance thereof, shall be the supreme law of the land, and by requiring that the members of the state legislatures, and the officers of the Executive and Judicial departments of the states shall take the oath of fidelity to it.
The government of the United States, then, though limited in its powers is supreme; and its laws, when made in pursuance of the Constitution, form the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding. --"
Any State, or combinations of States, can challenge federal 'laws' ~not~ "made in pursuance of the Constitution".
- In fact it is their duty.
States have enormous powers of their own, -- to tell the fed gov't to go to hell, -- constitutionally speaking.
That they don't choose to ~use~ these powers is a political problem, not a constitutional one..
California constitutionalists need to be careful what they wish for. With an overwhelmingly corrupt and liberal state legislature the less power they have the better.
Although there are a lot of 'states rightists' on FR who disagree on that point. -- They've got their wish in CA. ~Lots~ of gun rights have been infringed.
If that be the case let us just hold a convention anyway, lets get all the state legislators to elect delegations in parallel to such and send them to an agreed point, if the feds deny the legitimacy of such tell em they can shove it, and remind them they are not of the just authority to do so.