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Wednesday, February 25, 2009

Oklahoma House passes 10th Amendment state sovereignty bill

Billofrights Earlier this month, I wrote that:

A spate of... "10th Amendment resolutions" at the state level seems to have been sparked with last year's failed HJR 1089 [pdf] in Oklahoma "claiming sovereignty under the Tenth Amendment to the Constitution of the United States over certain powers; serving notice to the federal government to cease and desist certain mandates; and directing distribution." The sponsor of that bill, Rep. Charles Key (R) is working on introducing similar legislation (HJR 1003) [rtf] this year which he says is likely to pass as a Republican-controlled Legislature convenes for the first time in state history.

Rep. Key's bill is one of the eight similar pieces of legislation which have been introduced this year asserting state sovereignty under the US Constitution's 9th and 10th Amendments in Arizona, Michigan, Minnesota, Missouri, Montana, New Hampshire, Oklahoma and Washington; twelve more states are expected to follow suit.

WorldNetDaily reports:

Oklahoma's House of Representatives is the first legislative body to pass a state sovereignty resolution this year under the terms of the Tenth Amendment.

The Oklahoma House of Representatives passed House Joint Resolution 1003 Feb. 18 by a wide margin, 83 to 13, resolving, "That the State of Oklahoma hereby claims sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States."

The language of HJR 1003 further serves notice to the federal government "to cease and desist, effectively immediately, mandates that are beyond the scope of these constitutionally delegated powers."

The sponsor of the resolution, state Rep. Charles Key, told WND the measure was a 'big step toward addressing the biggest problem we have in this country – the federal government violating the supreme law of the land."

"The Constitution either means what it says, or it doesn't mean anything at all," Key said. "The federal government must honor and obey the Constitution, just like the states and this citizens of this country are obligated to do, or our system of government begins to fall apart."

The Ninth Amendment reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Tenth Amendment specifically provides, "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."

More details here.

Recently, the Shotgun Blog highlighted an appearance by Rep. Dan Itse, the sponsor of New Hampshire's House Concurrent Resolution 6 "affirming States’ rights based on Jeffersonian principles," on Fox News' Glenn Beck Program.

UPDATE: The John Birch Society has a very useful tracking page with direct links and status updates for the "10th Amendment resolutions" in the various states.

Posted by Kalim Kassam on February 25, 2009 in U.S. politics | Permalink


OK, but specifically what "mandates" are the feds employing that over-step their bounds? What is this really about in practical terms? What areas do the states want to take over themselves?

Posted by: Grant Brown | 2009-02-26 2:45:11 AM

The OK legislation is very nonspecific. Take a look a the text of the NH (or MT) legislation which I think is much better written because it specifies certain actions which, if taken by the Feds, would be a clear overstretch of their Constitutional powers.

Posted by: Kalim Kassam | 2009-02-26 3:00:01 AM

Question of clarification: I might be wrong, but I get the impression that when issues of federal vs state (or provincial) power are in the news that the libertarians here tend to side with the more local government. So my question is: Why?

Insofar as some power or other is legitimately one a government can exercise, it does not seem to matter a whole lot from a libertarian point of view what level of government has it. Insofar as some power or other is not legitimately one a government can exercise, it is no better that a state or province do it than a federal government.

Now it occurred to me that the argument might be that the more local a government is the less likely they are to assert power illegitimately or the better the chances of citicens do do something about it if they do, but I see no evidence of it. Municipal bylaws on where you can't smoking, how you can use your property (zoning laws), what types of pets you can own (no chickens in city limits!), beautification laws (requiring building owners to cover up graffiti and mow their lawn because of how it looks to others), etc. seem to suggest otherwise. Even at the provincial level Alberta, BC, Saskatchewan and Ontario all have just as bad track records on hate speech laws as the federal government and in Ontario, for example, it is provincial legislation that is being used to stop car pooling.

So maybe there is just the general principle at issue here of making sure that the feds are playing by the rules, but if the rules are shitty in the first place, then ensuring that they are adhered to seems a rather small thing to worry about.

What am I missing here?

Posted by: Fact Check | 2009-02-26 8:45:08 AM

The problem is all of this over stepping is seen to be constitutionally sound. Actual sovereignty is a much better plan.

Posted by: Pete | 2009-02-26 9:05:33 AM

To Fact Check

You're right about the fact that the smaller the government exercising a specific power, the easier it is to change. Putting the power in the hands of smaller government bodies governing smaller territories makes it easier for people who dislike the policies enacted by these government to leave. For example, alot of Quebecois have left their province for Ontario, Alberta and BC where the laws governing those provinces destroy less (but still does) jobs and leave it's residents with more money in their pockets after taxes. Imagine if the left wing policies of Québec applied to all of Canada, moving to the USA would be a bit harder.

Having more and smaller government also promotes competition between them. For example, the latest tax cut in Quebec had alot to do with the fact that it was the highest in the country and impeeded job creation. Québec is now at par with Newfoundland for having the highest taxes. If it wern't for the fact that those other provinces had smaller taxes and it was easy for Quebecois to move out, I'm not so certain the government would of lowered the taxes a bit.

Posted by: Steven | 2009-02-26 11:26:18 AM

"when issues of federal vs state (or provincial) power are in the news that the libertarians here tend to side with the more local government."

I think you're right. I hope Terrence weighs in here, although I think he agrees with those of us who prefer more decentralism, he does have some thoughts on how the federal government does/should keep the state governments in cheque. You may recall from a few of his older posts that Ron Paul's interpretation of the 14th amendment (i.e. that it does not incorporate the Bill of Rights to the states), is one of the key reasons why he is not a Paulite.

"So my question is: Why?"

I hate to refer you to a source to which I cannot provide an accessible reference, but I'll note that Jason Sorens' (an Assoc. Prof at SUNY-Buffalo and founder of the Free State Project) presentation to the 2008 Liberty Summer Seminar was the most concise and complete argument I've encountered outlining the theoretical reasons why libertarians should generally prefer geographically small states and decentralized government (i.e. more jurisdictions which operate under different sets of rules). I'll contact the ILS about making the audio or video available and Sorens about whether he has notes from his talk.

I think that three of the arguments have already been mentioned by you and Steven.

1. More local government with greater representation (i.e. fewer electors for a MLA or a municipal alderman than an MP or the PM) is more accountable to the people. Distant politicians and bureaucrats are more difficult to monitor.

2. For similar reasons, those more distant and less representative politicians in larger jurisdictions are more difficult to influence--and they have less incentive to care about what you think.

3. Having smaller or more numerous jurisdictions (in the international system or within a nation-state), especially if there is free movement of people and capital leads to jurisdictional competition. If a certain state overtaxes, overregulates or otherwise overextends its power, people can emigrate or place their capital elsewhere. The hope is that there will be a sort of "race-to-the-bottom," although one of the flipsides is that in certain cases these same factors (e.g. mobility between jurisdictions) also makes the cost of government welfare programs balloon.


4. More jurisdictions provides more freedom of choice to individuals. They can select the sort of laws they live under. In the US for example, if someone prefers to have secure gun rights, lower sales tax, or legal access to marijuana etc., they can find a state which provides it.

Aside from these theoretical arguments (anyone feel free to provide any I have missed), there are a number of historical or constitution which apply in the US and Canada.

You're familiar, no doubt with the Quebecois or Western Canadian arguments for more provincial autonomy, which rely not only on observation of actual unwanted federal control over the people and their provinces, but also on historical arguments about the way English Canada/Central Canada have established systems of control which continue into the present. You will find similar historical arguments in the US.

In the US particularly (but also in the Canada), there are also constitutional arguments. Because libertarians consider the US Constitution to lay out a government more libertarian than the one they have (and often for historical, constitutional theory, or rule-of-law reasons) and because the idea of a constitution with enumerated powers which limits the powers of the national government is attractive to libertarians, they often favour a strict adherence to the Constitution, including to the 9th and 10th Amendments.

Posted by: Kalim Kassam | 2009-02-26 12:11:00 PM


I'm here, but I haven't slept for about 24 hours. Still, check out my post on the new assault weapon ban -- not bad for someone who presently feels like a zombie!

I'd be interested in Sorens' argument, for sure.

To be brief, I'll just comment on the three arguments you raised, then get some sleep. But I'll check back later.

"More local government with greater representation (i.e. fewer electors for a MLA or a municipal alderman than an MP or the PM) is more accountable to the people. Distant politicians and bureaucrats are more difficult to monitor."

This may be true, but I'm not sure "responsiveness to the people" is what libertarians should want out of a political system. At least, it shouldn't be a high priority. This is because:

1. We know "the people" tend to be rationally ignorant. Ignorance can be rational accept on the smallest of scales, where one vote really might make a difference in an election. But that's a very, very small scale (e.g. like ten people.)

2. Even if people are rational, there's the problem of factionalism. Religious fanatics (to take an example) can more easily form a small, very extreme voting block on a small scale. Expanding the scope forces fanatics to deal with more people who either don't prefer the same things, or don't prefer them as strongly.

(In the Free State project, there is an attempt to turn this to the advantage of libertarians: I remain unconvinced that libertarians will ever have the numbers to compete with some of the worst factions. Libertarianism is hard work: you have to forgo using the political machinery to advance causes you otherwise think are very worthwhile. Most people couldn't or wouldn't handle that.)

Second argument:

I say basically the same thing: I'm not exactly sure I want politicians who are responsive to the will of the people, because the will of the people is often insane, evil, irrational, or simply contrary to liberty.

Third argument:

There's something to this one, especially when it comes to purely economic liberties. Businesses will flee high tax states to low tax ones. But I remain unconvinced that the suppression of _personal_ liberty correlates with economic inefficiency to the degree this argument seems to require.

There are a number of business friendly nations that are quite draconian when it comes to personal liberties.

Fourth argument:

This is probably the best of the lot, BUT it seems to countenance a lot of injustice. There's something wrong -- even from a libertarian point of view -- with the idea that people should have to move, abandoning their property, just to protect their other liberties. That's not the kind of trade off anyone should have to make.

After all, we're not talking about moving to a different state to get a better job. We're talking about moving to a different state to get the liberties that, morally speaking, a person is entitled to anyway.

And people who can't move, for whatever reason, are basically screwed.

I have some other arguments contrasting the role of the judiciary (esp. in the U.S.) with the other branches of government. Because the Supreme Court has to explain and justify its decisions (in a way never required of politicians) there is a role for rational argumentation.

Lawrence v. Texas exhibited this in a striking way, in my opinion: the Court didn't say Texas (or some other state) couldn't ever have a law prohibiting gay sex between consenting adults.

Instead, they pushed the burden back to the state government, requiring states to justify such an infringement on liberty. And that justification had to be something better than "It's just what the mob demands."

And, of course, for libertarians, that's exactly where the burden belongs: liberty is the default, limits on liberty have to be justified, and justified according to a very demanding standard.

Randy Barnett is quite good on this issue, as I've mentioned before.

Posted by: Terrence Watson | 2009-02-26 12:56:49 PM

To Terrence

"This is probably the best of the lot, BUT it seems to countenance a lot of injustice. There's something wrong -- even from a libertarian point of view -- with the idea that people should have to move, abandoning their property, just to protect their other liberties. That's not the kind of trade off anyone should have to make".

You're right that this is moraly wrong. This should not have to happen if we we're living under a libertarian government. However, with the governments we have now, more choices of places to live under differents sets of laws is better than one whole country with one set of laws. There's no competition in order to attract people.

Posted by: Steven | 2009-02-26 1:13:03 PM

Two quick comments -
1) states do not have rights. Individuals do. States have jurisdiction.
2) it's an empirical question as to whether local authority or central authority (or some balance of the two) is more conducive to liberty. I'd say that in the U.S. case the argument against local authority is pretty powerful (think slavery).

Kalim - linking to the John Birch Society! Are you kidding?

Posted by: Craig | 2009-02-26 2:10:42 PM


I'm not sure why you think it's bad for me to link to people whose views I don't endorse (or that you don't endorse--I'm not sure). I certainly don't think that the conspiracy theories of some John Birch officials/publications are even in the same league as the odiousness of the IHR. Could you please explain to me why you object to these links?

I linked to a page maintained by the JBS for what I evaluated to be a perfectly good reason: they had compiled a useful, current, and fairly complete resource which they are likely to keep up-to-date--by including the link I thought I was providing a useful service to our readers.

You said you didn't "want to come all PC on" me, so I expect you can articulate some good reason why I should refrain from linking to resources provided by the John Birch Society.

Posted by: Kalim Kassam | 2009-02-26 2:41:12 PM

We had our Trudeau, now the US is getting theirs.

Apparently, both share a vision of a strong central government which encroaches on long-standing constitutional areas of responsibility accorded the provinces or the states.

Obama is looking more and more like Trudeau reincarnated every day, right up to the point where he doesn't mind spending the US into prosperity.

Glad I'm a Canadian and we're now emerging out of our politics of envy era.

Posted by: set you free | 2009-02-26 3:02:53 PM


"Still, check out my post on the new assault weapon ban -- not bad for someone who presently feels like a zombie!"

I'm impressed, a very good post.

I agree that the 1st and 2nd arguments are fairly poor. I'm more convinced by the 3rd and 4th as well. Just look at the top fifteen countries in the Fraser Economic Freedom of the World Report for some empirical support for argument 3.
I've liked what I've read by Barnett. The Spoonerite idea (as I crudely understand it) that if there could be a legitimate government established by a written constitution, one would have to interpret it with a presumption of liberty, makes intuitive sense to me. I won't be able to get to it soon, but where should I start?

Posted by: Kalim Kassam | 2009-02-26 4:34:54 PM


With Barnett? Try Restoring the Lost Constitution, which was pretty influential on my thinking just prior to Ron Paul's ascendancy.

If ONLY the privileges or immunities clause in the 14th Amendment hadn't been completely emptied of content by the Court shortly after the amendment was passed! That clause, plus the 9th, gets you presumption in favor of liberty within the U.S. Constitution itself.

Also, Barnett's essay on Lawrence v. Texas is quite good, and available online.

It's called Justice Kennedy's Libertarian Revolution.

I've read some other things, too. I've never heard him speak, though, despite attending numerous Cato functions. It's too bad!

Posted by: Terrence Watson | 2009-02-26 5:11:33 PM

Kalim -

I agree that the Birchers are merely nutty while the Holocaust revisionists are truly evil. My point is simply that you weaken your own case by associating yourself in any way with groups which fall in either of those categories. Why bother? Your views (and mine too) are controversial enough without associating them with ideas that are either wacky or malign.

Just to stir the pot a little more, I would put the Mises Institute somewhere on the spectrum between the Birchers and the IHR.

BTW, you do realize that the Birchers (at least in their original incarnation) thought Ike was a communist! In other words, they took a good idea - anti-communism - and discredited it. Which illustrates my point perfectly.

Posted by: Craig | 2009-02-26 5:31:19 PM


Have you read "The Politician"?

Posted by: Laurence | 2009-02-27 6:51:13 AM

So, I guess now we can count on these states refusing federal aid to fund programs that are outside of the Federal government's jurisdiction. No? Bummer . . .

Posted by: anonymous | 2009-02-27 9:06:16 AM


I haven't read The Politician, but I'm aware of the charge that Ike was a commie.

Craig, gotta run now, but I'd like to respond to you with my thoughts later. I do have two quick questions though:

1. Is it your vantage point and experience within academia that leads you to this concern?

2. Since we link from this blog to Mises.org all the time, isn't linking to the JBS instead of the LVMI a step in the right direction?


Jason Sorens was kind enough to respond to my email inquiry:

There are essentially three arguments in favor of small, competing jurisdictions:

1) The "market-preserving federalism" argument from Hayek and Barry Weingast. If taxpayers can leave high-rents jurisdictions for low-rents jurisdictions, then local governments will be constrained to reduce rents & promote growth. Centralization doesn't allow this.

2) If there are many jurisdictions & it is easy to move among them, people can settle in the jurisdictions that provide the right mix of public goods & taxes for them. This is the Tiebout "sorting" model.

3) Smaller jurisdictions *may* enable citizens to constrain government better through the political process. This was Aristotle's argument in favor of small republics, and Jefferson's argument for autonomous "ward republics." Hasn't really been tested by modern political scientists.

However, you do have to design federalism correctly. Some pitfalls:

1) Subsidizing subnational governments with central grants. This creates bailout expectations & encourages them to rack up debt. See: Argentina.

2) Allowing local governments to enact barriers to trade & migration. This obviously vitiates the benefits of sorting-style federalism. See: Indonesia, Nigeria.

3) Allowing subnational jurisdictions to violate the civil liberties of their citizens. See: Jim Crow South.

In all these areas I support a central government role to constrain subnational jurisdictions. So it's really a matter of designing federalism correctly. You could even see regional trade & human rights agreements among sovereign states that would accomplish the same thing & allow the scale of the sovereign state to fall.

Posted by: Kalim Kassam | 2009-02-27 11:52:19 AM

As a libertarian, I favour smaller jurisdictions over larger ones for purely pragmatic reasons - not because smaller is "more justifiable" than larger in itself. Moving from 350-million-person states to 20-million-person states to 2-million-person states to ... is a form of incrementalism toward one-person states. It is like starting with a huge boulder, blowing it into large rocks, and then chipping away at the rocks until you have stones and finally sand.

Moreover, the transitioning argument is always the same: Once you concede that the minority of of 350-million-person state should not be bullied by the majority, it is hard to escape the logic that the minority of a 30,000-person state should not be bullied by the majority.

In more concrete terms, if the Quebecois should be masters of their own home, then so should the Cree in Northern Quebec and the English-speaking in the isle of Montreal ... and the Greek-speaking within the isle of Montreal...

Furthermore, I think that somewhere in the process of the incremental devolution of the state, *some* of the smaller units will inevitably be more libertarian (and some more socialistic) than others, so compelling comparisons between contiguous units will become easier to make and to see. If, as I believe, the more-libertarian smaller units will be more prosperous than the less-libertarian smaller units, that will become obvious to everyone not blinded by ideology, and the movement toward full libertarianism will grow like a snowball rolling down a hill.

As usual, this explanation escapes Loggic Chopper because it is not something that deductive logic alone is capable of generating.

Posted by: Grant Brown | 2009-02-27 1:48:20 PM

Hey Kalim,

My point is simply that when you have a marginal or radical viewpoint it pays to pick your friends carefully. Some on the right are not good allies, mainly because the illiberal elements of their ideology are likely to taint your cause.

I check out the Mises site on occasion (I love the old clips of Rothbard). But I wouldn't touch Tom DiLorenzo's apologias for the south with a 100 foot pole. Again, not because he's too radical; but because I care about human liberty much more than I do state's rights. I'd say the same for their Lincoln-hatred, those appalling newsletters, etc.

Does that mean you shouldn't link to them? Probably not (because they are good on some things like monetary policy). I would just be wary of any close association.

Posted by: Craig | 2009-02-27 8:17:53 PM

I'm with Craig on this, although the link in this case was probably harmless enough.

But, in general, we have to avoid associating ourselves with people who, uh, sound like they side with the South in the Civil War.

An experience politico in DC told me that people on the right have to be extra clean (in our associations, arguments, etc) because those on the other side are only too willing to believe we're all racist whackjobs.

I think she was right about that.

Posted by: Terrence Watson | 2009-02-27 8:47:59 PM


I wanted to respond briefly to your interesting comments.

"Moreover, the transitioning argument is always the same: Once you concede that the minority of of 350-million-person state should not be bullied by the majority, it is hard to escape the logic that the minority of a 30,000-person state should not be bullied by the majority."

Unfortunately, there's a difficulty here: take the reaction from some over the Supreme Court forbidding a state like Texas from passing certain laws based solely on "the moral standards of the community."

It's probably true that many Texas saw this as bullying. But why?

Compare these two sentiments: "How dare the Supreme Court tell us what kind of laws we can and can't have!"


"How dare the Supreme Court tell us we can't prohibit conduct we sincerely believe to be immoral!"

These are different. In one case, it's simply the bully's restriction on liberty Texas would be reacting to. In the other, it's the bully's restriction on the liberty of the people of Texas to prohibit conduct perceived to be immoral, e.g. sodomy.

In the first case, logical consistency might move people in a libertarian direction: after all, if it is wrong for the feds to restrict my freedom qua Texan, it might also be wrong for me to restrict the freedom of other Texans.

In the second case, the federal restriction on freedom isn't that bad -- in itself. Rather, it's the restriction on a certain type of freedom, the freedom to prohibit immoral conduct, that is bad.

If that's the basis for the bullying charge, I see no logical inconsistency in protesting the federal interference in Texan affairs, but also upholding the right of Texas to interfere with the "immoral" conduct of its citizens.

In other words, the feds enabled "immoral" conduct, and that's bad, because we (Texas) should be able to prohibit immoral conduct.

If that's the way people are thinking, then the connection between decentralization and individual liberty is more tenuous than it might first appear.

One more example: South Carolina appears to be a very pro-life state, but Roe blocks the legislators from restricting abortion to the extent they would wish. And, hence, South Carolina protests.

But suppose Roe were overturned and the Supreme Court upheld a federal abortion ban. No abortion anywhere in the U.S. If South Carolina objected to the federal government's interference in principle we would expect the state to object to this move just as much as it objects to Roe, if not more so.

But, I suspect, many in South Carolina would be perfectly satisfied with this state of affairs. That's because they do not object to the restriction of liberty per se; but, rather, they object to the federal government stopping them from forbidding behavior they perceive to be immoral.

If the federal government forbid the same behavior they believe to be immoral, across the U.S., they wouldn't have a problem with it.



Posted by: Terrence Watson | 2009-02-28 7:43:08 PM

TW: Still, the form of argument is the same. If you belong to a medium-sized unit, and you don't like something that is being imposed by a larger unit, and object to it on the ground that they have no right to impose it on you, then you are vulnerable to any smaller unit saying that they don't want to be imposed upon by the medium level you prefer to do the imposing. There will always be smalller clusters who don't like what the larger cluster is doing, and claim they would be better off being sovereign. That's the general point I'm making.

But the key hypothesis in my account is that more-libertarian political principles will be favoured over less-libertarian political principles by a process of evolution - i.e. cultural evolution based on memetic substitution - and that this process will snowball faster the smaller the state-like units become.

Posted by: Grant Brown | 2009-02-28 11:22:53 PM

But Grant, surely the reasons the smaller unit object to the imposition matter. The inconsistency, if there is one, will lie there.

Suppose X is the large unit, Y is the medium unit, and Z is the individual. Y objects to imposition by X because of the belief that p (say, homosexuality is immoral.) Z objects to Y's imposition because of the belief that ~p.

If X stops imposing on Y, Y still has an apparently valid reason for imposing on Z: namely, Y's belief that homosexuality is immoral. That belief explains Y's resentment of X. If Z protests and points to his belief that ~p, Y can simply say: "You have a false belief. We fought X because X would not allow us to base our laws on our belief that p. Now that we are free of X and its homosexual agenda, why should we not base the laws on our belief that p?"

How would Z respond to that, in a way that would make use of the kind of vulnerability you allude to?

To me, it looks like Y can always claim it just wants to base its laws on the truth. Smaller units that wish to base laws on different beliefs can always be shut down, rhetorically, simply by the larger group denying that those beliefs are true.

I think that's what issue here is whether there is any inconsistency in Y wanting to base its beliefs on what the majority of its citizens take to be true, and its denial of a sub-unit's right to form beliefs on the basis of what the people in the sub-unit take to be true.

But, at the end of the day, I don't see the inconsistency. The fact that Z appears to have a false belief is a reason for Y to ignore that belief when it is making laws.

You might say: when Y resists X's imposition, isn't it affirming a right not to be imposed on at all? It doesn't seem that has to be the case: Y may simply be affirming a right not to have to make its laws conform to false beliefs. In other words, when it resists X, Y is just affirming its right to base its laws on its own superior set of beliefs.

Posted by: Terrence Watson | 2009-03-01 12:49:55 AM

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