Is this legal?
Yes…this was the intention of the 9th and 10th amendments to the US Constitution. Our country is founded upon the belief that no one part of government should become so powerful as to make the other parts inferior. Right now, our federal government is too big and too powerful. It’s time to return power to the people and give the people of Arizona the power to say “no” when the federal government attempts to enact unconstitutional measures.
Why do we need this amendment when the court system already keeps the federal government in check?
Our system of government was created with multiple checks and balances. The courts are certainly indispensable but no one branch of government was meant to have a monopoly on determining what the government can and can’t do. We believe in the courts but the states have an equal role protecting their citizens.
Don’t the General Welfare, Commerce, and Necessary & Proper Clauses give the Federal Government broad authority?
No.
Article I, Section 8 of the US Constitution gave the Federal Government specific and enumerated powers (coin money, declare war, establish post offices…). As James Madison (the father of the Constitution) wrote in Federalist #41, “For what purpose could the enumeration of particulars be inserted, if these and all others were meant to be included in the preceding general power?”
The General Welfare clause was intended to limit the federal government to only pursue activities which generally benefitted the nation as opposed to actions that would create advantage for one particular region or group of people. This was the understanding in the original Articles of Confederation (predating the Constitution) and the ratification articles of the Constitution.
The purpose of the Commerce Clause was to enforce orderly trade between the states. As an example, the states were precluded from charging most tariffs on other states. The original definition of Commerce was limited to actual trade of goods and services and not intended to be expanded to any and all activities. This too is documented in the ratification articles of the Constitution.
As for the Necessary and Proper Clause, this was merely intended to provide the federal government incidental abilities to carry out its enumerated powers. As Alexander Hamilton stated in Federalist #33, “It may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same if the ‘necessary and proper’ clause were entirely obliterated”.
Won’t this create chaos if every state can pick and choose which federal actions they will enact?
In fact, it’s just the opposite. It will force the federal government to properly consider the responses from the states before it passes new regulations. Checks and balances between the states and federal government are no more chaotic than those between Congress and the Supreme Court.
Arizona’s legislature is known for doing some wacky things. How can we trust our legislature to be thoughtful and deliberate?
There are two ways to reject a federal action and both require a thoughtful deliberate conversation. The first is through the initiative process which would require a majority of voters who cast a vote on the measure to approve it. The second would require the legislature to pass it and the Governor to sign it.
You could say the same thing about the United States Congress. In addition to the legislature’s approval, we also require the governor’s signature as an added check and balance to our own process. By and large, most people agree that our government just isn’t in touch with what the people of our country want. Congress isn’t accountable to the states. Our measure will force Congress and federal bureaucracies to contemplate how states will respond to unconstitutional federal actions.
Won’t this allow the state to reject any law it doesn’t like…like paying federal taxes?
No.
This does not give the state the power to reject laws that they don’t like…just laws that violate the Constitution. This is the same restriction imposed on the Supreme Court. Many more checks are in place at the state level than there are on the Supreme Court.
Wasn’t this used by the southern states to promote slavery?
Absolutely not. Slavery was the law of the land. The federal government enforced harsh fugitive slave laws that kidnapped escaped slaves to bring them back to the South. Slave owners supported these laws and had nothing to reject. Northern states used their state powers to nullify and not enforce these laws.
Isn’t this just a step to succession?
Just the opposite. The states are exercising their constitutional rights to compel the federal government to live within its constitutional boundaries. Society is much more harmonious where everyone lives by the rules.
What checks and balances would we have on the states themselves? What if they get it wrong?
There are numerous:
The states collect certain moneys from the federal government.
State elected representatives are much more accountable to their citizens than their federal counterparts. They can be removed from their positions much easier through elections and recalls.
Legislative actions can be reviewed by the State Supreme Court
States adopting bad laws lose their citizens and tax base
Above are all considerations the state must consider from which the federal government is immune.
Aren’t you giving new powers the state?
No.
This simply allows the state to check against unconstitutional actions committed by the federal government. This initiative doesn’t allow the state to make any new laws.
