The creator’s of our Constitution were so
concerned that the Federal Government would usurp the powers of State Government
that they included provisions to lessen that possibility. However, time
has taken its toll on these provisions and the politics they had hoped to
minimize has reared its ugly head in the Supreme Court to further erode the
powers of State Government.
Over the years, since the country’s founding,
state government powers have been usurped by a number of events. Of major
importance was the enactment of the 16th Constitutional Amendment instituting a
national income tax that provided the Federal Government with the complete power
of the purse. This was followed by a variety of government social programs
initiated during the tenure’s of President’s Franklin D. Roosevelt and Lyndon
Johnson that drained the individual state’s ability to finance programs of this
nature at the local level.
Further erosion came during the civil right’s
movement when southern states were slow to respond positively to it and the
federal government placed another nail in the coffin of state’s rights.
The latest action of the Supreme Court in the
Texas Sodomy Law case is not just another case of usurping state’s rights but
also of the assumption of power not authorized under the Constitution.
Clarence Thomas, in his dissent, aptly exemplifies this point.
“I write separately to note that the law before
the Court today "is . . . uncommonly silly." If I were a member of the Texas
Legislature, I would vote to repeal it. Punishing someone for expressing his
sexual preference through noncommercial consensual conduct with another adult
does not appear to be a worthy way to expend valuable law enforcement resources.
. . .Notwithstanding this, I recognize that as a member of this Court I am not
empowered to help petitioners and others similarly situated. My duty, rather, is
to "decide cases `agreeably to the Constitution and laws of the United States.'
" And, … I "can find [neither in the Bill of Rights nor any other part of the
Constitution a] general right of privacy," or as the Court terms it today, the
"liberty of the person both in its spatial and more transcendent
Clearly then the responsibility to change or
abolish this law lies within the powers of the state, Texas in this case, and
not with the Supreme Court. As with Roe v Wade it was not a federal or
constitutional issue and should not have been decided by the Supreme
Court. It was just another example of the usurpation of state’s rights by
all three branches of the federal government.
It is apparent that state’s rights are dead within
the coffin in which it lies being nailed tightly shut as time passes. Is
there any chance they can be revived? It cannot obviously happen unless
the electorate addresses the issue forcefully. It especially lies with
those individuals and families who are disturbed by the casual acceptance of
life styles that in the past were known to exist but not considered as being
acceptable moral behavior. It is they who must lead the movement to
restore the Supreme Court to what it was meant to be under the
To do this they must gain the election of
candidates, especially for the Senate, who support the appointment of Supreme
Court Justices who are not prone to take upon themselves the making
of laws by judicial fiat. Although the President makes the
appointment, having sufficient votes to confirm a person most likely to be a
constitutionalist will determine the direction the Supreme Court takes in the
Thus, with the recent precedent breaking
filibustering of judicial nominees by the democratic minority, more Senators
favoring those nominees who they feel would be strict interpreters of the tenets
of the Constitution are essential to stopping its further erosion. There can be
no rest until the point is reached where sixty such Senators are ready to invoke
cloture on any attempted filibuster of the President’s judicial nominee.
Although State’s Rights may be dead at this time
there is a chance for revival, to some degree, if there is recognition on the
part of those disturbed by the recent decisions of the court that they can do
something about it.