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Finding States Rights in the Constitution

By Bill Britt
Alabama Political Reporter

MONTGOMERY – In the next session of the Alabama Legislature expect to hear a great deal about state’s rights and Alabama values. In late summer, House Speaker Mike Hubbard (R-Auburn) commissioned a state’s rights and Alabama values commission to study conservative social issues and 10th Amendment guarantees.

It has been said that the commission was in part a result of dissatisfaction expressed by freshmen GOP who met after the 2012 session at Lake Guntersville to discuss the need for a more conservative agenda in the state legislature.

According to a report by Dana Beyerle, the commission is tasked with listening to “typical Alabamians” to ensure that conservative social issues and 10th Amendment guarantees are given prominent attention in the 2013 legislative session, which begins in February.

Those issues include illegal immigration, the Affordable Care Act, religious liberties, anti-abortion initiatives, taxpayer rights and Second Amendment protections. These are issues that will be presented to our (GOP) caucus for consideration, Hubbard said.

Most Alabamians embrace a more conservative agenda than many outside its borders, but the mostly male, all white makeup of the Speaker’s commission has caused some worries.

Likewise, the use of the words state’s rights, at least for black Alabamians, is reminiscent of the racist past. Speaker Hubbard has said it doesn’t have anything to do with the old connotation. Words do have meanings but sometimes a phrase does change meaning over time.

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The rights of states has been argued many times dating back to the founding of our republic, but the idea at least in words that the states have rights was never entered into the nation’s constitution.

Those who prefer the original language of the US Constitution would be hard pressed to find the words right or rights ever used in connection with government. A careful reading to the US Constitution reveals no mention of the words rights as referring to the Federal government or the states themselves. The words “right” or “rights” do appear in the Constitution and Amendments a total of 15 times, but never in association with “state.” The words “right” or “rights” are used 13 times to guarantee rights of the people while restricting power of government to infringe them.

Governments, state and federal, do not have rights according to the constitution what they have is power. Individuals have rights, the government has powers that are granted by the consent of the people.
The 10th Amendment contains one of 36 mentions in the Constitution of “power” or “powers,” reserved to the states or to the people but those are not explicitly enumerated. In simple terms, whatever power the federal government does not have is left in the hands of the state.

A good example of such powers is that of immigration.  Federal courts have ruled the the states have no rights concerning immigration, because they don’t exist. However, the federal government has power over all immigration. This was a costly lesson learned by Alabama over the last several years, when HB56 and its successor was struck down by the federal courts. Many supporters of HB56 claimed victory but it wasn’t a victory but a talking point thought up by communications specialist and repeated by their bosses.  The “Ihre papiere bitte” portion of the law was not a win for state’s rights. This is not to say that there is not a need for immigration enforcement neither is this an endorsement of the federal government’s lack of enforcement of its own policies, it simply shows states to do not have power over immigration.

Alabama with a 4 percent Hispanic population was never under the pressure that a state like Arizona faced but it was a good political point during the 2010 elections and so it became a rallying cry to gin-up the GOP base, especially those in the Tea Party.

Mr. Hubbard, says that the Affordable Care Act is an issue for his state’s rights and Alabama values commission, but with the Supreme Court ruling and the reelection of Obama even John Boehner has declared ACA as the law of the land.

Alabama recently passed an amendment to block ACA but this too is just political posturing. The only power the states have is how they will implement portions of ACA, not if.

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According to a post by Blaine Galliher, Governor Bentley has appointed a tribunal of lawyers with expertise in constitutional law and this health care bill to advise him on the options our state has as it relates to this legislation.

So, the governor is calling on a cadre of lawyers to continue the fight against the ACA. According to Galliher’s meme Governor Bentley with 20 other governors are going to do what, defy federal law? One has to wonder what the governors are thinking, a law passed by the two houses of Congress signed by the President and upheld by the Supreme Court in this universe means it is a law.

It is logical to ask, what is a state that is hovering on the brink of bankruptcy doing by spending state dollars the fight the law of the land. Very few avenues seem open but perhaps the governor’s coalition could try to pass an amendment to the US Constitution. Secession is not an option with a very successful track record.

Governor Bentley may despise the ACA overall but he has been wanting to move forward with the health exchange portion for well over a year. Just this summer the Governor held a meeting at which he proposed spending over $50 million in federal dollars to build the exchange and its infrastructure.

Utah built its healthcare exchange for under a million dollars, but Alabama wants to use the maximum in federal dollars because it will allow the state to modernize it technology infrastructure using federally-supplied funds.

The hunger for federal dollars is certainly one of the many ways that states have surrendered power to Washington, DC. In the case of the ACA, Chief Justice John Roberts, said that holding a gun to the states was a no, no, but Alabama will happily except the federal money, while cursing the giver.

Another big discussion on the horizon will be the expansion of Medicaid something that the state’s rights commission and many Alabamians will be allied against. However, the expansion of Medicaid will happen in Alabama because of state’s desire for federal dollars and the special interest that will benefit from the growth of the program.

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Hubbard said he chose to include the term state’s rights because he says conservative states are battling Washington. We are the last line of defense against the federal government.

I would like to see a day when states have more sovereignty over their own affairs. I would be in favor of a loose confederacy of states but for over a century, states have kowtowed to Washington for money.
The battle then would seem lost until the core reason as to why the states have so little power against the federal government is addressed. To find the answer, the commission needs to look no further than the state’s willingness to spend every dime the federal government is willing to give.

It is also important to address situations with the true firepower of the Constitution. Individuals have rights, not governments and the government should only have the power that is given by the consent of the governed.

Sadly, many in our state follow slogans and not well thought out policies. The state needs more than commissions with catchy names, it need sound policy thinkers whose agenda is good government not politics.

House Majority Leader Micky Hammon (R-Decatur) serves as chairman of the States Rights and Alabama Values Commission, according to the report by Beyerle, Hammon said, “We wanted to get input from the Tea Party and other people who are interested. We’re just looking for input from the people out there who are our base and typical Alabamians, instead of us deciding what this is going to be.”

With a population of around 70 percent white and 26 percent black, 4 percent Hispanic and with almost a million people living below the poverty level one has to wonder who is a typical Alabamian.

When addressing state’s powers it is important to recognize that those powers cut both ways. If Alabama wants its so-called rights, then it should also expect those state’s that want gun control, gay marriage and abortion-on-demanded to have their rights as well.

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It is a slippery slope because one man’s state’s rights is another one’s abomination. Words do have meaning, the word “fair” used to mean to be just or equal, today it is used in a phrases like “That is not fair” to mean “I don’t like that.”

Perhaps that is now the new meaning of state’s rights.

Written By

Bill Britt is editor-in-chief at the Alabama Political Reporter and host of The Voice of Alabama Politics. You can email him at [email protected] or follow him on Twitter.

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