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home : opinions : opinions November 24, 2015

9/4/2013 11:01:00 AM
When enough states push back, Feds back off
By Dr. Harold Pease

In early summer California's Governor Jerry Brown and Jeffrey Beard, the state's corrections chief, were in great danger of being held in contempt by three federal judges for willful defiance of a court order requiring the administration to meet a Dec. 31 deadline for reducing the prison population in California.  

Brown had previously asked the federal government to back off on federal mandated prison requirements, "We can handle our own prisons," he said.  Can he constitutionally say no to the federal government?  Yes, and he should. 

Besides the obvious, that Californians do not want their convicts returned to society too easily, voiding the acts of juries and judges after their having spent thousands of hours deciding what is just with respect to their crimes and their danger to society, federal enforcement of such is unconstitutional. 

The Constitution gives the federal government only 17 grants of power, listed in Article I, Section 8 and managing federal prisons is not one of them. 

In fact, the Constitution names only four crimes that Congress has the power to penalize and they are: counterfeiting (Article I, Section 8, Clause 6), piracy on the high seas, offenses against the law of nations (Art. I, Sec. 8, Cla. 10), and treason (Art. III, Sec. 3, Cla. 2).  Outside these four crime areas there can be no federal law or crime without a new amendment.  All other areas are entirely under state jurisdiction as per Amendment 10.

If the governor wished to follow the Constitution as designed, he could designate one or more facilities as being federal, move all prisoners that had committed crimes in the above four areas to that facility and with them be fully compliant with federal law. 

With respect to the other prisoners he might notify the federal government again that "We can handle our own prisons" and that the federal government has exceeded its Constitution jurisdiction.  This is a state function per the Tenth Amendment. 

Why is it important that he, and other governors, do this?  It is the pattern of the never-ending enlargement of the powers of the federal government, at the expense of state prerogatives and the 10th amendment, that is transforming the federal government from a republic, as understood by the Founders, into something else.  It is constitutional defilement. 

The use of Amendment 10 is central to the restoration of freedom from government and the return of checks and balances, of which state jurisdiction is essential, before all power is housed at the federal level and we are more clearly no longer free.

 Unconstitutional overreach is epidemic and there is now finally measurable push-back.  States do have the authority to "Just Say No!" but to be effective they need to do so collectively, the larger the group the more effective.  Such was used in 1798 in the Kentucky and Virginia Resolves, in 1832 in the Nullification Crisis in South Carolina, and more successfully with the northern states, especially Wisconsin, in 1854 over the highly unconstitutional Fugitive Slave Act. 

The 10th Amendment 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."

 Examples of federal overreach are everywhere.  This has to stop!

In 2013, twenty-six states showed their resistance to Obamacare by opting out of the Obamacare health care exchanges.  Nine State Sheriffs' Associations put the Executive and Legislative Branches on notice that they will support the traditional interpretation of the 2nd Amendment of the Bill of Rights and 336 elected county sheriffs inferred that they will protect their people on this issue.  So, California Governor Jerry Brown has good company in his efforts.

Dr. Harold Pease is an expert on the United States Constitution. See more at www.LibertyUnderFire.org

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