Some winding thoughts about states rights and Montana House Resolution 3

Today, I'm going to write about the Montana Legislature's recently defeated House Resolution 3, which was sponsored by Rep. Michael More, R-Gallatin Gateway.

After a long introduction, in which More's bill reminds us that we have a 10th Amendment and that the government's power is derived from the consent of the governed, he takes us into a borderline secessionist resolution that is designed to incite public outrage at the federal government without providing any outlet for that anger.

The bill is impotent, inflammatory and ill-conceived. Thankfully, a 50-50 party-line vote defeated the bill in Helena on Wednesday. I write this essay after the fact, in the hopes that some state lawmakers will see it and decide that there are better, more effective uses of state time and state money.

The resolution begins by saying that the states of the Union are not "united on the principle of unlimited submission to general government." Rather, the states, by ratifying the U.S. Constitution and Bill of Rights, gave only certain powers to the federal government and reserved all other rights for themselves. So far so good.

More makes one of his important points in the second clause of the resolution, in which he asserts that federal government actions and laws that overstep the Constitution's restrictions are "void and of no force" in the states.

Furthermore, in the third clause, More says that it's the Constitution that determines the powers granted to the federal government. The Congress cannot because, he writes, it was "not granted the authority to determine the extent of the powers delegated to itself" because that would have made Congress and not the Constitution the measure of federal power.

In other words, More is saying that the country must rely on an unspeaking document to decide what powers the federal government can have. Congress has no further power other than those provided by the scope of those diluted articles. This approach, I must note, implies a need for stricter readings of the Constitution and speaks against interpretationist readings of the Constitution, from which many federal powers are derived.

But More is ignoring the legal system's, indeed the whole judicial branch's, responsibility to determine whether laws are constitutional. If those laws, and the actions that stem from them, are not constitutional, the legal system provides a means for nullifying those laws: it's called the Supreme Court.

Regardless of the Supreme Court and the legal channels available to refute any federal oversteps, More goes on.

In his fourth clause, he argues that, according to a strict reading of the Constitution, the federal government only has the power to punish traitors, counterfeiters, pirates, slavers and offenses "against the law of nations." And "no other crimes," More writes. He continues that line of thought in the fifth clause, where he arrives at this: "All acts of Congress that assume to create, define, or punish crimes other than those enumerated in the United States Constitution are void and of no force."

Read that carefully, because this resolution just said that while Congress may pass laws, it may not define the breaking of those laws as a crime. That's up to the states.

This, of course, ignores the executive branch of the government, whose job is to enforce the federal laws passed by Congress.

Clauses four through six were stricken from the bill before it was voted upon by the House of Representatives. I mention them to show the extent of the anti-federal sentiment that More is summoning in his bill and to show his disregard for the systems already in place to handle misappropriations of power.

More goes in in clauses seven and eight -- I'm going by their original numbers for simplicity's sake -- to say that only states have the authority to decide when and to what extent liberties may be infringed for the sake of law. He also notes, and this is a common theme, that any laws Congress makes that go against the rights he sees as belonging to the states are "void and of no force."

He goes through the clauses of the Constitution that delegate specific powers to the federal government (Article I, Section 8, by the way) and says that any federal government actions that overstep those specific boundaries serve "to destroy the limits of power imposed on Congress by its creators, the several states." Further, in clause 12, more says that if Montana accepts those federal abuses of power, it is tantamount to "surrendering its own form of government, its sovereign power, and its responsibility to its citizens."

So he says that states can ignore or reject "all unwarranted assumptions of power by other entities within its boundaries" in order to avoid becoming "mere administrative subdivisions of their intended servant, the federal government."

In the 17th clause, More begins to finally give some examples of the kinds of federal government excesses he's worried about. These include establishing martial law or a state of emergency within a state without that state legislature's approval; moving federal troops into a state without permission from the state legislature; moving federal troops into a state with the intention of asserting federal supremacy; requiring involuntary government or military service without war being declared; and "surrendering any power delegated or not delegated to any corporation or foreign government."

And in clause 18, he goes on to say that if any law, executive order, judicial order or (in all caps) treaty abridges the rights guaranteed to Montanans by either federal or state constitutions, then Montana's "'Compact With the United States' may be considered breached and all powers previously delegated to the United States via the United States Constitution revert to the states individually."

He goes on in the 19th clause to say that "any future federal government" of the United States needs a three-fourths ratification from the states to form a federal government, and that such a future government "shall not be binding upon any state not seeking to form or join a federal government."

The bill, More writes, is a call for states to express their "sentiments on acts of the federal government not authorized by the United States Constitution" and to reaffirm that Congress's powers are limited by the Constitution and Bill of Rights. It is not, he argued, a call for secession.

Well, it may not be a call for secession, but it is a secessionist document. Calling this a states rights document would also be true, but the fact that More is sending an inflammatory message -- meant to cause trouble and to raise hackles among the feds -- and ignoring the proper legal channels for addressing the abuses of federal power that he sees tells me that he's given up on the current system of government. He reaffirms my conclusion by talking about the "future federal government." Not the next administration. Not the next class of lawmakers. A new government. Not the one we have now.

"There is no revolution. There are some very angry people about the overreaching of government," Rep. Ed Butcher, R-Winifred, told the Bozeman Daily Chronicle. "This is very pro-government, because government is of and by the people."

"This is a federal government be-good stick," Rep. Krayton Kerns, R-Laurel said in the same Chronicle article. "Now there is talk of secession. (The resolution) isn’t saying that. But that is the big stick in the room that we have to occasionally display."

Keep in mind that More is a freshman legislator, one of several who ran as part of an effort to get some of their more moderate Republican colleagues out of the legislature, according to the Billings Gazette. In March, more was found out of order on the House floor for remarks he made during a debate about the federal stimulus spending bill (HB-645).

The Billings Gazette reported that More was in a committee discussing the definition of when human life begins when legislators were called to debate HB-645. They were called, More said at the time, away from a debate about God and conception "to the sound of money falling from the skies, for all of us to roll over in and lap up." When he was told by the chairman to stick to the topic of the debate and not go on about God, he made remarks that put him out of order, the Gazette reported.

Opponents of the bill (and several other sovereignty-asserting bills moving through the legislature in these closing few days of the session) say that this sort of beat-your-chest states rights resolutions could fuel the kind of anti-government ideas that gave strength to the militia movement.

Sen. Christine Kaufmann, D-Helena, told the Billings Gazette: "I do think that there is a kind of renewed vehemence to this kind of right-wing rhetoric being spewed by conservative talk show hosts to rile the troops, and they are using the fact that we have a Democratic black president as one of their rallying calls."

Indeed, More's fears about martial law and the surrendering of U.S. power to corporate and foreign countries falls into line with many of the right-wing beliefs about the president. They fear, because he is more conciliatory and diplomatic than former Pres. George Bush, that Obama is handing power to other countries or that he will attempt to seize complete control of the country to do so.

People who believe that have no faith in our military, our law enforcement and our elected representatives.

More's bill assumes that the federal government is acting outside its constitutional boundaries by assuming powers that were not granted to it in the Constitution. But the bill itself makes no references to the supposed infractions, so we are left to assume that More knows what he's talking about.

That's an iffy proposition. Do we trust a partisan, Republican lawmaker from Gallatin Gateway to know for sure that the federal government has overstepped its mandate? And even if we do trust More to know that, why is the State of Montana trying to pass a resolution to address this? Why isn't More filing lawsuits against these federal excesses rather than writing a bill full of borderline inflammatory language with hints of secessionist ideas?

"It is about sovereignty. It is about the Constitution and the Declaration of Independence preceding it. And it is about the rule of law. Montana law," More said in his opening statement on the bill, as reported by the Great Falls Tribune. But whether More intended HR-3 to have secessionist undertones or not, they're present. They're present because More has seen fit to put his beliefs about the federal government's powers into a public bill rather than into an actionable public lawsuit.

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