by Rob Natelson, Electric City Weblog

Governor Rick Perry of Texas is getting some nice national press for endorsing a state “Tenth Amendment” resolution stating, among other things, that “That the 81st Legislature of the State of Texas hereby claim sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States.”

Everyone seems to have forgotten that we went down this road not too long ago, and it didn’t lead anywhere. In the early and mid-1990s, many states (including Montana) passed similar resolutions.

In fact, the Texas resolution is almost a word-for-word duplication of those passed in the 1990s – including even the gross historical error that “the federal government was created by the states specifically to be an agent of the states.”

The resolutions of the ’90s had little long-term effect. One reason was the non-binding effect of mere resolutions. Another was that you can say the states have all powers not delegated to the federal government, but that means nothing unless you define the powers of the federal government more narrowly than they are currently being defined.

At a time when states have become deeply dependent on federal revenue, state officials have strong incentives to cooperate with the source of that revenue.  So when state legislatures did follow up in the ’90s with more substantive legislation, governors and attorneys general often ignored it. A case in point was Governor Marc Racicot’s failure to enforce the Montana Mandates Act.

Perry may be more serious than most: He was willing to turn down part of the Congressional stimulus plan. If he is really serious, he’ll oppose any state budget that includes spending for other constitutionally-suspect programs.

If tea party advocates want anything more than resolutions, the way to start is to ensure that between now and the next election, they swarm all over our state and federal elected officials, giving them no peace until those officials begin to respect the Constitution’s limits on federal power.

Cross-posted from Electric City Weblog

Rob Natelson is Professor of Law and David Mason scholar at the University of Montana, where he teaches constitutional law and constitutional history.  He is currently seeking a publisher for his latest book, The Original Constitution.


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