Republicans all over the country find themselves backed into an ideological and political corner: Their dogma has brought the country, and their party, to ruin. The candidate they called an evil, terrorist-loving, foreign-born socialist is in office and widely popular, while they and their beliefs are reduced to irrelevant minority status.
If you thought they might try to re-assess their hardcore platform of discredited beliefs or try to find ways to participate in, and influence, the course of governmental action, you would be wrong.
As Rush Limbaugh has made clear, their path lies in seeking the failure of President Barack Obama and the Democratically controlled Congress — in predicting, and seeking, the massive and catastrophic collapse of America. Only that result can prove them right.
The stakes, to their mind, could not be higher: The American experiment is on the verge of running off its constitutional rails. "We are at a pivotal point in our nation's history," says Paul McKinley, a Republican state senator from Iowa.
McKinley is among hundreds of Republican lawmakers all over the country who are backing resolutions of "state sovereignty" — essentially empty gestures toward declaring the illegitimacy of the federal government. Of the many manifestations of conservative anti-government hostility, none is more striking than this sudden nationwide movement: Barely 50 days into Obama's administration, lawmakers in more than two dozen states (including Ohio, see sidebar) have introduced these sovereignty declarations. Some appear headed for passage; others have prompted raucous demonstrations and public hearings.
Based on a thoroughly rejected reading of the 10th Amendment — which states 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" — the resolutions claim the federal government, in usurping powers and issuing mandates to the states, is in violation of the U.S. Constitution. They call for Congress and the president to cease and desist in those (mostly unspecified) violations.
The resolutions generally avoid specifying how they would assert their claimed sovereignty — although a few threaten to defy the federal government and to refuse to implement laws they dislike.
Some resolutions go further, claiming that the violations may constitute a "nullification of the Constitution." The most aggressive, which was recently defeated in New Hampshire, explicitly threatened to dissolve the Union.
As much as so-called Tenth Amendment Movement participants believe they are responding to a unique circumstance, they are actually treading old and predictable ground. The exact same movement arose when the last Democratic president took office in 1993. In fact, most of the resolutions circulating today are word-for-word copies of the ones introduced 16 years ago.
By late 1994, at least eight states had passed versions, with legislators in more than 20 states planning to introduce them in their 1995 sessions, according to a review at the time by the conservative Heritage Foundation.
The state-sovereignty movement of that time was part of a fabric of anti-government sentiment that also included a rise in the "militia" movement — and the resolutions abruptly ceased in 1995, after Timothy McVeigh blew a hole in the Alfred P. Murrah Federal Building in Oklahoma City, killing 168 people.
Today's version is moving even faster, thanks in large part to the conservative-libertarian network that was formed and energized around Ron Paul's presidential candidacy, and the large online communities of liberal-hating conservatives.
Some national conservative figures — including Fox News, syndicated radio talk-show host Glenn Beck and commentator Michelle Malkin — have applauded the idea. And a few prominent elected Republicans, including South Carolina governor Mark Sanford, have recently cited the same state-sovereignty talking points in discussing their opposition to the federal stimulus bill.
Most other prominent Republicans have remained silent on the issue, but none have denounced it. That's hardly surprising; the angry anti-government conservatives and Ron Paul libertarians are important voting blocs in GOP primaries.
Sanford, who is courting both groups for his potential 2012 presidential bid, professes that he "loves the concept" of the state-sovereignty bills, in a recent interview appearing in the conservative John Birch Society publication The New American. He recommends in that interview that Tenth Amendment Movement supporters march on Washington, D.C., to "insist that the Constitution be obeyed."
The claims of these resolutions are indefensible on constitutional grounds. "They rest on completely untenable interpretations of the Constitution's text, structure and history, and they proceed as though the Civil War had been won by the Confederacy," e-mails Laurence Tribe of Harvard Law School. "These resolutions — not to put too fine a point on it — are off the wall."
Questioning federal overreach is not in itself unreasonable; it has been debate fodder for more than two centuries.
Nor is it outrageous for a state's lawmakers to collectively declare their disapproval of federal government's behavior. "That sounds to me as American as apple pie," says Richard Fallon, professor of constitutional law at Harvard Law School.
But the intent of these resolutions — the underlying idea of claiming "state sovereignty" — is not only to disagree with or vilify the federal government but to provide a justification for resisting it, and for denying its authority and even its legitimacy.
The resolutions and their proponents are claiming that states can on their own declare federal laws unconstitutional — even if the Supreme Court disagrees — and refuse to recognize them within their borders.
They are simply wrong, explains Robert Bloom, a constitutional-law professor at Boston College Law School. "The Constitution allocates responsibilities between the federal and state governments, and the Supreme Court is the ultimate authority in interpreting that."
But the antifederalists don't like the courts' answers. So they are claiming the authority for themselves.
Dan Itse, the state representative sponsoring the resolution in New Hampshire, explained how he imagines this would work in practice — using as his example, unsurprisingly, the possibility of Congress enacting a national firearm-licensing system. (This obscure proposal, which is the idea of a single congressman and has no possibility of becoming law, is perhaps the most often cited sovereignty threat among Tenth Amendment Movement supporters.)
If the law were passed, says Itse, the New Hampshire legislature could declare the law unconstitutional and its enforcement illegal within the state's borders. The Department of Justice would "start sending people into New Hampshire to enforce it," which the state would challenge — perhaps even by arresting federal agents. A federal judge would then likely "issue arrest warrants on the state legislature," says Itse.
"Would that constitute a nullification [of the Constitution]?" asks Itse. "I would say so."
Itse's House Concurrent Resolution 106 is one of the most aggressive of its kind — "walks right up to the door of secession," as one admiring South Carolina state senator put it in a televised interview.
It declares that any act of the U.S. Congress, president or federal courts "which assumes a power not delegated" to the federal government "shall constitute a nullification of the Constitution." In such an event, it goes on, all powers revert to the individual states, until and unless a brand new federal government is formed, and the states choose to join it.
Itse and his co-sponsors even included several particular examples of acts that would cause nullification. It is an odd and seemingly random list — until one reads, in a press release issued by him and three other state legislators, some of their specific fears.
For example, "involuntary servitude or governmental service of persons under the age of 18," other than a military draft or criminal punishment, refers to Obama's campaign endorsement of mandatory community service for high-school students — "slavery," according to the press release. "Further limitations on freedom of political speech" refers to the supposed re-institution of the Fairness Doctrine.
Remarkably, nearly 90 percent of New Hampshire House Republicans voted in favor of this resolution, calling for dissolution of the United States government in the event that it imposes a community-service requirement on teens.
Democrats, who gained the majority in 2006, were able to defeat the resolution. But Itse intends to try again, with some of the more controversial language removed. He has learned, as Tenth Amendment Movement supporters did back in the early '90s, that they must use vague language to couch their intent.
And yet that relatively benign language barely covers a strong, often paranoid anti-government fervor.
This Tenth Amendment Movement is being coordinated by libertarian organizations, such as the Republican Liberty Caucus, Campaign for Liberty and the Populist Party of America. Also instrumental is the aforementioned John Birch Society, a long-controversial conservative group that is now a leading promulgator of one-world-government fear mongering.
These organizations spout all manner of anti-federal-government rhetoric; the Ohio Freedom Alliance, for example, advocates for the state to introduce its own gold and silver currency as an alternative to federal money. Some of the groups have close ties with militia groups as well.
Jerome R. Corsi, author of the wild-eyed smear tract The Obama Nation: Leftist Politics and the Cult of Personality (as well as co-author of Ken Blackwell's 2006 gubernatorial campaign tome Rebuilding America) and one of the movement's main spokespeople, has frequently appeared on the nationally syndicated Alex Jones Show to discuss sovereignty resolutions. So have several of the state lawmakers. The eponymous host of that radio program is a big fan of the state-sovereignty efforts — and a full-throated conspiracy hawker. Jones's latest documentary purports to show how "the Obama phenomenon is a hoax carefully crafted by the captains of the New World Order ... in an attempt to con the American people into accepting global slavery."
Obama hatred and anti-government anger are also readily apparent among many of the resolutions' sponsors. South Carolina representative Michael Pitts, in a recent interview about the resolution he is sponsoring, said that "the trend toward federalism" is leading the country "headlong" into "socialism and maybe even communism." Pitts added that he would "prefer" to reverse this trend without the course of action "tried in 1861" — i.e., secession.
The resolution's lead sponsor in Michigan has called it "the first shot across the bow" for a movement to challenge the federal government. In Oklahoma, lead sponsor Charles Key is best known for chasing conspiracy theories regarding the federal government's role in the Murrah building bombing. The sponsor in another state has also filed a bill to prevent the federal government from building the "NAFTA Superhighway" supposedly being planned by the mythical North American Union — a new, European Union–style alignment with Mexico and Canada, to which the U.S. secretly intends to abrogate its sovereignty.
The North American Union, a favorite conspiracy of Corsi and the Ron Paul crew (though denounced by Paul himself), comes up a lot in this crowd — second only, perhaps, to ubiquitous warnings about impending gun-control measures. Itse, in fact, says in an interview that his "overriding concern" when he began drafting his resolution last year was "the U.S. ceding our sovereignty to a North American Union."
Regardless of how many "state sovereignty" resolutions are introduced or even passed, they will have no actual effect on anything — and secession is less realistic than even the North American Union.
But there's talk of such nonetheless — and no matter how often its proponents insist that the Tenth Amendment Movement is nonpartisan or has nothing to do with the Democrats taking control of Washington, that is exactly what is driving it.
While the federal-state balance has indeed moved far to the federal side, constitutional experts say that this is old news. It is certainly no truer today than when George W. Bush and a Republican Congress were in power — and there were no such resolutions introduced then.
In fact, since the last round of state-sovereignty resolutions, the Supreme Court has actually begun to set some limits on federal reach, says Bloom, with three decisions issued between 1995 and 2000.
Those rulings are apparently unknown to the authors and supporters of the sovereignty resolutions. Because most of their new resolutions are simply copied from the 1994 versions, none of them cite any of these rulings (although many cite a 1992 decision), nor are they discussed on supporting websites or other materials. The people claiming to suddenly be so concerned about the federal-state balance do not even seem to know where that balance currently stands.
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