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Vail Daily letter: State’s rights

Fredric Butler
Vail, CO, Colorado

As a general proposition, the people of Colorado “have the sole and exclusive right of governing themselves as a free, sovereign and independent state” to paraphrase a portion of Article II, Sec. 2, of this state’s constitution.

This republican right of sovereignty is underwritten and guaranteed to Colorado by the U.S. Constitution under Art. IV, Sec. 4, so I say that Colorado is more sovereign and independent of the federal government than most people would assume or dare declare.

Did you know that the powers of the federal government are delimited and constrained by the U.S. Constitution to the extent that any power or authority not expressly delegated or set forth in that charter is beyond its purview to exercise, and accordingly reserved to either the various states or to the people (Amendment X, US Constitution)?



Where the Constitution expressly enumerates its rights, that fact shall in no way be construed to deny or disparage the rights retained by the people (Amendment IX, U.S. Constitution).

In the words of James Madison (Federalist Paper No. 45): “The powers delegated to the federal government are ‘few and defined,’ while those of the states are ‘numerous and indefinite.” There are no implied powers reposed in the federal agencies and authorities granted to them by a so-called “living Constitution,” as some would have it.



This said, Colorado, along with the other states in the union, has the sovereign right to nullify any federal law enacted that is not substantiated by an expressed and prescribed provision of the U.S. Constitution.

Now, some will say that what a state may do or not do falls under the scrutiny and jurisdiction of the U.S. Supreme Court. I believe that where we relegate to the fox within the jurisdiction of the coop to determine the ownership of a chicken, its (fox’s) objectivity is conflicted.

In other and more meaningful words, where the issue of the constitutionality of a federal law is disputed between two sovereigns (the federal government and the state), the U.S. Supreme Court’s construction of such mandate should not trump that of the sovereign state, especially where the state has expressly reserved its right and authority, and the U.S. Constitution is silent in the matter.



To reason otherwise, “if the federal government has the exclusive right to judge the extent of its own powers, it will continue to grow — regardless of elections, the separation of powers, and other much-touted limits on government power,” as James Madison and Thomas Jefferson opined in 1798.

The unconstitutional overreach by the federal government and concomitant encroachment upon the sovereignty of the states is best illustrated by the myriad of laws it has enacted under the commerce clause of the U.S. Constitution (Article I, Sec. 8).

Issues that are profoundly intrastate in nature have been federalized under this clause by implication to supposedly carry out what is necessary and proper to facilitate other undefined or unexpressed powers of the federal government.

“To regulate commerce … among the states” has been morphed to “engage in commerce within the states to the exclusion of the latter,” and all for the welfare of the people.

Colorado, like other states, has the sovereign right, authority and jurisdiction to nullify undefined, unprecedented and unexpressed federal law that infringes upon its reserved right to govern itself.

Recently, in my lifetime, I have witnessed the various states emerging to the forefront to avail themselves of their constitutional and historical rights of sovereignty under the banner of “nullification.”

Granted, this is not unprecedented. Witness the nullification of the federal “Alien and Sedition Acts in Jefferson’s time (1798). In our day, we are now again witness to the acts legislated by various states, such as firearm freedom laws in Montana, state marijuana amendments in Colorado and California, and most notable of all, repeal of the “Patient Protection and Affordable Care Act” of 2010 in Virginia, Florida, et al.

This nullification movement is not just a provoked insurrection by the states, but a deliberate and legally sound confrontation based upon constitutional provisions, both federal and state.

For example, under the Colorado Constitution we have Article II, Sec. 13, which provides “the right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question.” And in cooberation of that, we have the 2nd Amendment to the U.S. Constitution providing “A well- regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” We note that a “militia” is the standing army of a “state.”

These expressed provisions empower the people, and relegate only to the states the right to regulate intrastate trade, not to the federal government to regulate all and everything under the interstate commerce clause (Article I, Sec. 8).

State nullification will be the bellwether for succession when the federal government seeks to confront them in the federal courts of the land about their unilateral acts.

The question then becomes who has the better right to a chicken, the fox or the chicken? Using this logic, it would be sound to surmise that a state does have a right of succession when confronted with such a dilemma.

As Henry Cabot Lodge once put it: “It is safe to say that there was not a man in the country, from Washington and Hamilton to Clinton and Mason, who did not regard the new system (Constitution) as an experiment from which each and every state had a right to peaceably withdraw.”

in 1816, Jefferson said: “If any state in the union will declare that it prefers separation … to a continuance in the union … I have no hesitation in saying, let us separate.”

Years later, and prior to the Civil War, Lincoln himself propounded: “Any people anywhere, being inclined and having the power, have the right to rise up, and shake off the existing government, and form a new one that suits them better.” However, it is interesting to note that Lincoln settled the succession issue by war, and not through the federal courts.

In all of this, there is an Oscar Wilde satire in that perhaps to save the Constitution, the states must first secede from the union it established.

This was better said by Jefferson Davis: “I love the union and the Constitution, but I would rather leave the union with the Constitution than remain in the union without it.”

Fredric Butler


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