Robert Ehlert: States still have a right to do their own thing

rehlert@idahostatesman.comJanuary 21, 2014 

Robert Ehlert

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“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.”

— 10th Amendment, U.S. Constitution

It’s interesting to observe the way politicians and we the public claim the selective sanctity of our constitutional amendments.

Some swear by the First (religion), the Second (right to bear arms), the Fourth (privacy) is very popular as is the Fifth (self-incrimination and more). Not so many tout the 10th.

I am no constitutional scholar. Like you, I accept and ponder the conclusions of courts, which give us context and sometimes precedent.

Can the 10th Amendment stand on its own? Can states really do things they want without the federal government sticking its nose into it?

Though I am happy not to be in Colorado for the rollout of pot luck, I respect the state’s sovereign decision to go that route. Own it, Colorado and Washington — should you decide to move ahead. Just don’t call me when the unintended circumstances emerge or when border states complain or even sue over something.

Remember that President Obama has spoken clearly on pot: it’s not any worse than alcohol; he did it; it’s icky, but he doesn’t want his kids to do it. Yes, this is from the president, who is the ultimate head of the Department of Justice, which still considers marijuana illegal (and for which it has sent people to prison). Is the president setting the table for a national discussion on marijuana legalization — and beginning to tug at the threads of resistance in states against it? If so, it would be similar to the evolution of his position on gay marriage.

A few days prior to the start of the Idaho Legislature, members of leadership were quizzed about their feelings on gay marriage and the lawsuits against states that disallow it, Idaho among them. Two divergent stances emerged: 1) gay marriage in all 50 states is inevitable, so why waste the time and money fighting it? 2) Idaho says no to gay marriage and its right and duty to defend its self-determination.

Regardless of how we as individuals feel about gay marriage, the 10th Amendment is supposed to be a state’s protection to go its own way. That said, gay marriage proponents are gaining traction using arguments outside the “enumerated powers” of the federal government in Article 1, Section 8, of the Constitution — where there is zero discussion of who can and cannot get married.

That’s why Section 3 of the Defense of Marriage Act was overturned. The federal government was out of bounds. But the Supreme Court did not go so far as to tell states they had to accept gay marriage.

Last week, Idaho Sens. Jim Risch and Mike Crapo co-sponsored the Constitutional Concealed Carry Reciprocity Act of 2014. Essentially, the bill seeks intrastate acceptance of concealed weapons permits among the states that allow them, subject to certain firearms and situations. The bill, according to its authors, is not attempting to establish national standards for conceal-and-carry gun permits or circumvent rules in other states.

If that’s true, why are federally elected senators getting involved? How is reciprocity achieved without one state having to accept the permit standards of another — which may be more, or less, strict? That works for driver’s licenses, but will gun owners with permits want that kind of record-keeping and scrutiny if it comes to that?

We’ll wait to see. Just don’t compromise the 10th Amendment. If my state comes up with something I can’t live with, I can move to another state. If my country imposes something I can’t live with, I’d have to move out of the country.

Robert Ehlert is the Statesman’s editorial page editor. Contact him at 377-6437, or on Twitter @IDS_HelloIdaho.

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