Another Victory for Texas Sovereignty Act
By
James Scott Trimm
There has been yet another victory for the Texas Sovereignty Act at the Texas GOP State Convention this weekend. With neither of the two major candidates from the two major parties even addressing the idea of limiting the growing scope and power of the Federal government, now more than ever the Texas Sovereignty Act is important.
Less than a year ago, in July 2015, my wife was in the Hospital for nearly two weeks. I had a lot of time to think, and during that time I formulated an idea called the "Texas Sovereignty Act." Since that time the idea has caught on like wildfire.
At the time the U.S. Supreme Court had taken upon itself the undelegated power to regulate marriage in the various states and thus overturn the definition of marriage found in the Texas State Constitution.
Unconstitutional Acts of the Federal Government
With the recent unconstitutional Supreme Court Rulings that claim a right of the federal government to require citizens to buy healthcare, to redefine marriage, and to simply rewrite laws they do not like, people are asking, “Is the Supreme Court really the final authority on these matters?”
Even decades ago the US Supreme Court claimed the right to regulate abortion, claiming that there is a constitutional right to an abortion (though the Constitution never even mentions abortion).
The Executive branch engages in executive overreach, ignoring laws it does not like, and writing executive orders to create laws without congress, and without delegated authority.
The Legislative branch itself makes laws that are unconstitutional and for which it has no delegated authority.
Abortion, Obamacare, gay marriage, activist federal courts and executive overreach.... What if one Texas law could put Texans back in control of Texas?
How Did the Supreme Court Become Final Interpreter
The Supreme Court has become the final interpreter of the Constitution for one simple reason: because they say they are. The Supreme Court usurped this authority, claiming it for itself in 1803 in Marbury v. Madison. Nowhere does the Constitution assign this role to the Supreme Court, they simply have it because they say they do,
The Supremacy Clause
The Supremacy Clause of the Constitution says:
This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
(Article 6; Clause 2)
Note that it is the Constitution, not the federal government that is the “supreme law of the land”. The Constitution is not the same thing as the federal government. The Constitution is the instrument that creates and restrains the federal government, it is not the federal government itself.
The Constitution is also not the same thing as the Supreme Court. And in fact the Supreme Court is not even mentioned in the Supremacy Clause.
To the contrary Thomas Jefferson wrote:
“…this [federal] government, created by this compact [the Constitution], was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress."
(Thomas Jefferson; Kentucky Resolution 1798)
And James Madison wrote:
"…the powers of the federal government as resulting from the compact to which the states are parties, as limited by the plain sense and intention of the instrument constituting that compact, as no further valid than they are authorized by the grants enumerated in that compact; and that, in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states, who are parties thereto, have the right, and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights and liberties, appertaining to them."
(James Madison; Virginia Resolution of 1798)
The Constitution is a compact between a given state, and the other states in the Union. Just as when two foreign powers, for example France and Great Britain enter into a compact, each party has a right to determine for itself its own understanding of the terms of the compact. Likewise each state maintains the right to determine for itself its own understanding of meaning of the terms of the Constitution. This does not conflict with the Supremacy Clause because it is the Constitution (but not the Federal Government ) which is the Supreme Law of the land.
Not only does the Constitution not mention the US Supreme Court in the Supremacy Clause, the Constitution indicates that it is State judges who are expected to determine if a state law is constitutional saying “…and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”
The Tenth Amendment
The Tenth Amendment to the US Constitution reads:
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
This means that the federal government (the Supreme Court included) does not have any power that the states have not specifically delegated to the federal government in the Constitution. No where in the Constitution do the states delegate to the Federal Government the power to determine for themselves whether or not they deem a state law to be Constitutional, or to determine for itself what it understands the Constitution to mean.
As Thomas Jefferson wrote:
"That the several states composing the United States of America are not united on the principle of unlimited submission to their general government; but that, by compact, under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each state acceded as a state, and is an integral party, its co-States forming, as to itself, the other party;…”
(Thomas Jefferson; Kentucky Resolution 1798)
(The states also never delegated the authority to the federal government the power to regulate abortion, require its citizens to purchase healthcare, or define marriage.)
How do we Reclaim Sovereignty?
So how do we reclaim our state’s sovereignty? How do we reclaim the right to determine for ourselves whether or not our state laws are constitutional? How do we reclaim the right to be the final authority for our own state’s understanding of the Constitution? Surely any law our state passes that reclaims its sovereignty will be declared unconstitutional by the federal government, since they have developed their own precedence on the issue.
The answer is, in much the same way that the Supreme Court claimed this authority for itself. We simply say so. We simply pass an act that, as a matter of enforceable and implemented law, Texas determines for itself whether or not our laws are Constitutional.
This means the federal courts will also have no power to find the Texas Sovereignty Act itself unconstitutional, because the law itself takes that decision out of their hands and places it in those of our state.
This is the only true path to Texas sovereignty. Any effort that leaves the matter ultimately in the hands of federal courts will fail, because they will simply declare it unconstitutional (though their own usurped power to do so is itself unconstitutional).
We can no longer afford to pass meaningless non-binding sovereignty resolutions. We can no longer afford to pass meaningless sovereignty or nullification laws, and then ask the federal courts if they are constitutional.
We must pass a Texas Sovereignty Act that claims for Texas the power to determine whether or not it, or any other Texas law is Constitutional, as well as determine for our own state whether or not federal laws or actions are constitutional (and especially if they are delegated powers or usurped powers).
Getting TSA into the State Platform
It has been truly a grassroots effort to bring this idea into the State GOP Party platform. It began with social media spreading the idea throughout the state. Then many ordinary Texans brought the Texas Sovereignty Act Resolution to their Precinct Conventions on election day, where it was generally approved by voters and passed up to the County and Senatorial District Conventions. At the ninth Senatorial District Convention the idea made it into the District platform in the following language:
We require the Texas Legislature to ignore, oppose, refuse, and nullify any act of any branch of the federal government which infringes upon the states' or people's Constitutionally protected rights in accordance with the 10th Amendment. And we also require the Texas Legislature to pass binding legislation claiming and enacting the right of our state to judge for itself whether a state law is unconstitutional, or whether a federal law, policy, action or ruling is unauthorized or undelegated by the U.S. Constitution. Police power is reserved to the states by the U.S. Constitution. Therefore, all federal law enforcement activities conducted in Texas must be conducted under the auspices of the county sheriff with jurisdiction in that county.
This platform report was then passed up to the State GOP Convention.
I am pleased to report that language supporting the Texas Sovereignty Act has now been passed in a plank of the Texas GOP State Party Platform. The 2014 platform merely said:
Reaffirm Texas Sovereignty as Reserved Under the 10th Amendment, United States Constitution - We strongly urge the Texas Legislature ignore, oppose, refuse, and nullify any federal mandated legislation which infringes upon the states' 10th Amendment Right. All federal enforcement activities in Texas must be conducted under the auspices of the county sheriff with jurisdiction in that county.
Bu the new 2016 platform, influenced by the Texas Sovereignty Act movement reads as follows:
State Sovereignty- Pursuant to Article 1 Section 1 of the Texas Constitution, the federal government has impaired our right of local self-government. Therefore, federally mandated legislation, which infringes upon the 10th Amendment rights of Texas, should be ignored, opposed, refused, and nullified. Regulation of Commerce in Article I, Section 8 of the Constitution has exceeded the original intent. All attempts by the federal judiciary to rule in areas not expressly enumerated by the Untied States Constitution should be likewise nullified. Any federal enforcement activities that do occur in Texas should be conducted under the authority of the county sheriff.
The new platform now goes much farther calling not just for the nullification of undelegated federal legislation, but also for nullification of undelegated federal judiciary rulings as well!
This means that the Republican Party of the State of Texas has now officially taken the position that the U.S. Supreme Court is not the exclusive or final interpreter of the Constitution and that the State of Texas can and should "nullify" "All attempts by the federal judiciary to rule in areas not expressly enumerated by the Untied States Constitution".
What Does the Platform Mean?
Up until this year the state platform was rather meaningless. We could pin it up on the bulletin board and all stand around and point at it and say "yep, that's the platform alright." But thanks to the hard work of Jeremy Blosser, that too has changed. The new party rules just passed at the stare convention we now have a real censure rule for elected Republican officials that will allow the party to deny party neutrality or other resources to candidates who takes three or more actions in opposition to the core principles of the Republican Party of Texas as defined in the Preamble of the Party Platform. In short, the party platform now means something substantive and cannot simply be ignored by elected Republican officials without potential consequences.
Where Do We Go Next?
Where do we go next? The final step is to take the Texas Sovereignty Act to the 85th Legislative session. I am pleased to report that more than one legislator has told me that they consider passing the Texas Sovereignty Act an "urgent" priority. Onward!
