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Nowadays American insurrections are announced not by thundering cannon, as in Charleston harbor 134 years ago, but by the soft rustle of legal briefs. One such, from Sacramento, announces a renewed argument about constitutional modalities. By challenging the constitutionality of the "motor voter" law, and by implication of "unfunded mandates" generally, California's Republican Gov. Pete Wilson has stolen the march on the Republican Congress. He has given sharp focus to today's counterrevolution against the disruption of constitutional balance. His challenge kindles memories of earlier acts of resistance, acts associated with names such as Jefferson, Madison, Jackson and Calhoun.
Enacted in 1993, the motor voter law requires states to provide voter registration information and materials at offices where states issue drivers' licenses, welfare applications and other assistance. Wilson estimates that this will cost California $20 million annually, which sum, given the state's financial distress, must be subtracted from other programs. This unfunded federal mandate to facilitate registration of recipients of public assistance clearly was intended by the Democratic-controlled Congress to register people whose votes would be disproportionately Democratic. But that is not what bothers Wilson or officials in the dozen other states -- some with Democratic governors -- who are resisting the law. Rather, Wilson's complaint, as addressed to a court, is constitutional.
His complaint is that the law "substantially commandeers state executive officers and the legislative processes of the state to administer a federal program and . . . impinges on the state's sovereign right to allocate its state budgetary resources pursuant to its priorities as determined by its elected representatives and officials, all in violation of the Tenth Amendment to the United States Constitution." Hello. It is high time this Amendment experienced rebirth of prominence. From its 28 words can be unpacked a vision of our constitutional order and of the political philosophy undergirding that order: "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."
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It would be difficult to improve upon the concision with which that Amendment affirms two tenets of American liberty. One is that individuals have rights prior to and independent of government. The other is that the federal government has only limited, delegated and enumerated powers in a system of dual sovereignty in which states are supposed to be the principal policymakers regarding domestic matters. Wilson's complaint contains this evocative language: "Defendant United States of America is a sovereign constitutional government of those limited enumerated powers specified in, and restrained by, the Constitution." Argument about those limits and that enumeration is nothing new. In fact, it is much of American history.
In 1798, with passions swirling around the Alien and Sedition Acts, Jefferson and Madison authored, respectively, the Kentucky and Virginia Resolutions. Those asserted that the Acts were unconstitutional because the federal government was exercising powers not explicitly delegated to it, and asserted that states had the authority to render such judgments about constitutionality.
In 1832, when the Supreme Court sided with the Cherokees against Georgia's attempts to steal their land, President Jackson, siding with Georgia, reportedly said, "[Chief Justice] John Marshall has made his decision, now let him enforce it." Jackson certainly did write, "The decision of the Supreme Court has fell still born, and they find it cannot coerce Georgia to yield."
South Carolina's John Calhoun subscribed to the doctrine of "nullification," saying a state could nullify an act of Congress within that state's borders. The doctrine was known also as "interposition," meaning that a state could interpose its sovereignty between its citizens and the central government. When South Carolina, treating Congress as disrespectfully as Jackson treated the Supreme Court, declared the tariffs of 1828 and 1832 "null and void," Jackson was unamused and declared nullification "an impractical absurdity."
Struggles over the meaning of federalism often have involved two doctrines that have long been out of favor. One is that the Constitution's enumeration of powers puts many matters beyond the reach of the federal government. The other doctrine is that the Union is a voluntary, limited and terminable compact among sovereign states. That idea was vigorously debated in the years between the thunder in Charleston harbor and the stillness at Appomattox. However, in the intellectual ferment of 1995 politics, many people are eager to revisit first principles and re-examine old premises that may merit renewed respect.
There is widespread dissatisfaction with the current division of labor between federal and state governments. In his challenge to the motor voter law Wilson is expressing a kind of exasperation felt by the 49 other men and women in statehouses. Utah's Republican Gov. Mike Leavitt and Nebraska's Democratic Gov. Ben Nelson propose a "Conference of the States" to give potent articulation to the states' anger about today's dysfunctional federalism. Each state would send a governor and two legislators from each party to the Conference, which would petition Washington for redress of states' grievances, which are many. The votes taken by the Conference would lack legal force but would have maximum political momentum for respect. The Conference might convene in Annapolis. It was at the Annapolis Convention in 1786 that anxiety about the weakness of the federal government resulted in a call for a constitutional convention in Philadelphia.
Today all eyes are on Washington. That is politically healthy but constitutionally unwholesome. It is healthy that Washington is fascinating as it debates fundamentals. But it is unwholesome that Washington, like Caesar, has grown so great. Power should start to flow back to where it came from and belongs, back to the people and their state governments, back to state capitals such as (to cite two named after the authors of the Kentucky and Virginia Resolutions) Jefferson City, Mo., and Madison, Wis. The conservatives' capture of Washington will be a success only if, as a result of it, Washington soon is not so important to capture.
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