State’s rights. It’s been the battle cry for conservatives throughout American history, causing the Nullification Crisis in 1832 and the Civil War nearly 30 years later. Now, 148 years after the debate over state’s rights ended on the bloody battlefields of Gettysburg, Vicksburg, and Antietam conservatives seek to revive state’s rights once again by hijacking the Constitution.

According to the Evansville Courier Press, Indiana Senate President David Long (R) is calling for a national constitutional convention for the purpose of proposing amendments to the Constitution that would weaken the federal government and give states more power to reject federal law.

Long intends to pass a bill in the state legislature calling for the creation of a convention and has the support of Indiana House Speaker Brian Bosma (R), who says he will push the legislation through the general assembly.





The Courier reports that Long’s ultimate goal is “to keep Congress from abusing its powers to tax and regulate interstate commerce,” with Long stating that he believes “it’s the only way that states’ rights can be protected in this country.” Long says it is “scandalous” what the federal government is doing and according to the Courier “his list of complaints with the federal government includes the U.S. Senate’s failure to pass a budget in recent years, President Barack Obama’s health care law and more.” Long’s colleague, Speaker Bosma, shares the same view of the federal government, telling the Courier that there “is general consensus that the federal government has reached into the corners of the room that it has no business going into.”

Republicans can legally hold a national convention to propose amendments. Article V of the Constitution gives them that right. But Article I of the Constitution gives Congress the sole right to tax and the power to regulate interstate commerce while Article VI mandates that federal law has supremacy over state law. Conservatives claim the 10th Amendment gives states the right to nullify federal laws. They are wrong and the Supreme Court has said so in cases such as Cooper v. Aaron in 1958 when the Court ruled that federal law is superior to state law because of the Supremacy Clause and thus are merely symbolic. The ruling states that federal law “can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes…”

And then there are conservatives like Jim DeMint who add the word “expressly” or “explicitly” to the 10th Amendment to claim that states have all powers not “expressly” given to the federal government. The problem is that neither word is found in the 10th Amendment. The word IS found in a similar clause in the Articles of Confederation, but was not included in the current version in the Constitution. Therefore, the 10th Amendment does not reject powers implied by the Necessary and Proper Clause. To read more about the 10th Amendment, go here and here.

Long claims to have already spoken with interested conservative legislators in Texas and Tennessee, but such a national convention requires two-thirds of the states to go forward. As such, it’s unlikely a convention will be held. But this latest move by Republicans seems like a desperation move in their mission to sabotage the Obama Administration and the federal government. Republicans vehemently oppose increasing taxes on the wealthy and extending health care coverage to millions of Americans through Obamacare. The GOP also rejects the various gun control measures proposed by President Obama, some of which may be passed by Congress, and many other federal laws such as environmental laws and labor regulations. Republicans have been unable to derail the federal government in these efforts thus far, so now they want to give individual states the power to declare federal laws null and void via constitutional amendment.

Conservatives have learned nothing from history. The Civil War settled the issue of state’s rights more than a century ago. More than 600,000 Americans died over the issue of state’s rights, and the Constitution itself settled the issue long before the Civil War. By replacing the failed Articles of Confederation, the Founders made certain that this Constitution mandated the supremacy of federal law, especially the ultimate power of Congress to tax and regulate interstate commerce, both of which were not in the Articles of Confederation and nearly collapsed the United States as a nation before it began. States still have the right to challenge federal laws in court and the Supreme Court has final say over whether or not a federal law is constitutional. But if Republicans have their way, they would push an amendment to the Constitution that would make court challenges and Supreme Court rulings unnecessary. States would be able to nullify any laws independently just by claiming they are unconstitutional.

The Constitution is a living document that can be changed, but the Founding Fathers never intended for individual states to have the power to independently declare a law unconstitutional. If they had, they would have “expressly” said so. Only the Supreme Court has the power to make such a declaration as decided in Marbury v. Madison in 1803 when the Court held that it is the role of the Judicial system to interpret what the Constitution permits. And that’s final.