The Most Desirable Option: Reeducating for Secession

In this age when the foundational idea of American federalism has become all but defunct and the concept of states’ rights still has the whiff of Jim Crow about it, it is difficult to see how either individual states or regions can have any significant influence on the federal government—even if they had legislatures interested, courageous, or willing enough to assert those positions.

The powers of the states became increasingly atrophied over the 20th century, and the Tenth Amendment was all but shredded.  From 1938 to 1995, the U.S. Supreme Court did not once put down any federal statute as exceeding federal power, and though the Rehnquist Court did uphold state statutes in a half-dozen minor cases (e.g., United States v. Lopez, saying hate crimes do not fall under the Commerce Clause), the thrust of the law was largely on the side of federal intervention and regulation.

The Court has issued two contradictory rulings quite recently on the right of states to make laws different from those of the national government.  In Gonzales v. Raich, it struck down California’s medical-marijuana laws, arguing that the Controlled Substances Act, which was passed by 528 people in Congress, trumped California’s Proposition 215, which was endorsed by 5,382,915 people.  But then, in Gonzales v. Oregon, it allowed the state of Oregon to go ahead with its assisted-suicide...

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