Saturday, December 12, 2015

Beyond States' Rights

Only 17 years after the founding of the American Republic, the US Congress passed the Fugitive Slave Act of 1793. This law provided for the capture and return of any Southern slaves that had escaped to freedom in the Northern states. The problem with the law was that these Northern states had developed the habit of not enforcing this federal law, which often allowed escaped slaves to live in relative peace and security.

Due to the machinations of Southern slave owners and their federal representatives, a stronger federal law was later passed, the onerous Fugitive Slave Act of 1850. This law required Northern law enforcement personnel to actively arrest and return escaped slaves or find themselves subject to arrest and punishment. Arrested slaves were also not entitled to a trial by jury (which almost always allowed the slave to go free) and anyone helping an escaped slave was also held liable. This act helped set off a wave of Northern consternation and protest that culminated in the American Civil War.

Interestingly, we are seeing a repeat in the passive resistance of federal law by many American states and communities that, to me, resembles the resistance to the Fugitive Slave Act of 1793. A developing culture of resistance --- and there is little the federal government can do about it. Unless it wants to extend its reach of enforcement to unacceptable levels, e.g., Fugitive Slave Act of 1850. Hear that NSA?

I don't think that we are seeing a new expression of states' rights vs. the federal government. Instead, I think that we are seeing something more grassroots, which means a trend that will prove to be systemic and enduring. But undoubtedly we are seeing the slow erosion of broad respect for federal law.

For example, sanctuary cities. These are cities that refuse to enforce many federal immigration laws. Law enforcement personnel in these communities are not permitted to inquire of the immigration status of arrestees; that is, immigrants cannot be prosecuted for being in the United States illegally.
Currently there are over 200 sanctuary cities and communities. Here is a map.

Another recent example is in regards to new federal gun-control legislation. Many US states and even some counties have passed ordinances stating that they will not abide -- at different levels and in different ways -- with the enforcement of these new federal gun laws. Here is a New York Times article examining this issue. And here is an article from a representative state (my home state of Idaho) that explores the actions of one such state.

Importantly, it is not just state legislators questioning the constitutionality of these new federal gun laws, but also the very people within these states that are required to enforce the laws, i.e., sheriff departments. Here is a link that examines how sheriff departments in Colorado are responding. Interestingly, the White House was quick to respond to this challenge, demanding that federal laws be enforced.

Unfortunately for the feds, state law enforcement agencies have already learned to not always jump  when enforcing federal gun-control laws, partly because of prior court support in related issues:

 In a 1997 decision on the federal Brady Act, the U.S. Supreme Court ruled that the federal government cannot force states to “enact or administer a federal regulatory program” and struck down a provision of that Act requiring state law enforcement agencies to administer background checks for gun purchasers. (Printz v. U.S., 521 U.S. 898 (1997).)

(Find the article here.) The trick has been learned; there is no going back.

Probably the most widely-known example of states flouting the enforcement of federal law is the recent drive towards "legalizing" marijuana. Twenty-three states have legalized the use of marijuana at some level, with four states and the District of Columbia allowing it for recreational use. I put the word "legalizing" in quotes because the actions by these states does not actually make legal marijuana in their states and territories. Federal law still prohibits marijuana in every way. What these states are doing is simply declaring that they will no longer enforce federal laws in regards to marijuana. Find the article here.

What does this all mean? Americans are expressing an increasing contempt for federal law and are increasingly showing that contempt through their support of state legislation that flaunts some of these federal laws. No, this is not nullification as many web sites describe it. This is less overt, but has the same effect. I ask this question: Are Americans becoming post-national?

Time will tell. But whatever the causes, the future outcome is probable: a growing comfort with the idea of secession. Is this likely? Not in the near future, but if the federal government attempts to respond to these developments with a 21st-century equivalent of the Fugitive Slave Act of 1850. undoubtedly those voices will be heard. Because we are hearing them already; they just haven't been articulated yet as such. 

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Emphatic language can be couched in kind words. Let's all be adults here and use our words constructively.