Remember when I suggested the way to beat back the Leviathan was through ballsy state maneuverings?
Well. Some lawmakers in AZ have got sack.
Proposition 120 would amend the Arizona Constitution to grant the state exclusive control over air, water, public lands, minerals, wildlife and other natural resources within the state’s boundaries.1
In 1910, the federal government granted nearly 11 million acres to the Territory of Arizona as part of the Arizona-New Mexico Enabling Act, allowing it to become a state. In accordance with this legislation, Arizona constitutionally disclaimed all rights to unallocated public lands inside its borders.2 Prop 120 would repeal this provision.
Prop 120 would additionally declare that each state possesses full attributes of sovereignty on an “equal footing” with all other states, and that “state sovereignty is fundamental to the security of individual rights, free government and the inherent political power of the people.”
Specifically excluded from the ballot measure are Indian reservations, U.S. lands and federal “forts, magazines, arsenals, dock-yards, and other needful buildings” obtained for federal government purposes, as required by Article I, section 8, clause 17 of the U.S. Constitution.
Fueled by a desire for stronger states’ rights, advocates say Prop 120 will liberate Arizona’s natural resources from overweening federal authority and regulation, thereby ensuring a better-managed, more prosperous economic future.
Opponents say Prop 120 is an unconstitutional land grab for federal lands that would require Arizona to spend billions for management and liability during a time of economic austerity. Moreover, critics argue that the measure would not likely survive the federal legal challenge they believe would surely come.
Prop 120, or House Concurrent Resolution 2004, passed the Arizona Legislature along partisan lines with Democrats voting in opposition.3 The measure was sponsored by Rep. Chester Crandell, R-Heber.
Yes on Proposition 120
Anxiety over federal authority and the perceived weakening of states’ rights are the driving influences behind state sovereignty (or “10th Amendment”) measures such as Prop 120.4
Advocates argue that states have the right to reassert sovereignty over any federal law not based on an “expansive reading” of the enumerated powers granted to Congress by the U.S. Constitution.5 Further, many consider Congress to be in breach of its regulatory authority over the states. Still others premise their advocacy on the belief that federal courts have misinterpreted the Constitution in the federal government’s favor.
In terms of public domain land, Prop 120 backers say the federal government is undermining Arizona’s agricultural, forestry and mining industries through overregulation.6 “This threatens our businesses and our jobs,” said Jonathan Paton, a District 1 Republican candidate for Congress.
Rep. Crandell, the measure’s sponsor, argued that Prop 120 would allow Arizona to manage its lands without deferring to federal agencies.7
Echoing this sentiment, Sen. Sylvia Allen, R-Snowflake, a co-sponsor of the measure, wrote: “Western states are at a distinct disadvantage compared to the states east of Mississippi because we don’t have control of all the land within our borders. The federal government controls [and mismanages] a major part of our land and interferes with mining, ranching, farming, grazing, water management, and many other aspects that are vital to our state economy, education, tourism, and our general prosperity.” 8
Like Sen. Allen, most proponents of Prop 120 are convinced the state can put public lands to more productive or profitable use than the federal government.
Advocates say the federal government made “an implicit promise” to promptly sell off public domain lands it held in 1912 to defray the national debt, but ultimately reneged.9 As a result, Arizona loses millions in revenue since it cannot manage these lands extractively. Moreover, some advocates question the legality of lands designated as national parks. They point out that the federal government never purchased this property from the state nor sought consent of the Legislature as required under Article I of the U.S. Constitution.10 Proponents say Prop 120 merely seeks readdress for these perceived errors of omission or commission.
Repayment of the national debt was, in fact, one of several guiding reasons behind Congress’ adoption of the General Land Ordinance of 1785 and the Northwest Ordinance of 1787. Both established the policies that would govern the disposal of public domain land, according to the Lincoln Institute of Land Policy. Of equal concern to Congress was the problem of land speculation, rapid expansion, and public education in Western lands as new states were created. Ultimately, these laws led to the system of granting lands in the new states to support public institutions. However, there is no mention of federal assurances of land disposal, implicit or otherwise, in the Arizona Enabling Act or any other legally-binding documents that led to statehood.11
No on Proposition 120
A passage from an Arizona Republic editorial captures the sentiment of most opponents to Prop 120: “Arizona voters will face a lot of serious decisions on this year’s ballot. They shouldn’t have to waste time on an unconstitutional referendum that would seize federal land. … Lawmakers are taking aim at two favorite targets: environmental regulations and federal land. Yet both bring benefits to Arizonans. HCR 2004 [Prop 120] is an ideological tantrum that’s gone too far.” 16
More cynical opponents question the motivation behind the ballot initiative. “This bid for sovereignty goes against being a state of the union,” Rep. Tom Chabin, D-Flagstaff, told one news outlet. 17
Instructive: check out who is for the amendment and who is against it. You’ve read me here for months now, as I’ve been thinking through problems raised by the haughty desire of the Roberts Court for a “legacy” of bipartisanship — a burnishing of his historical reputation at the expense of our liberties and sovereignty, at the individual (healthcare) and state (illegal immigration restrictions) levels.
One of the arguments against Prop 120 — which I doubt will pass this time, but should gain increasing traction as the leftist lies are pulled back to reveal that what’s best for the state is not a terribly big concern of the EPA, Interior, or (as they showed in their suit against the state), the White House, the Justice Department, and DHS — is, ironically, that it would be ruled unconstitutional by the Supreme Court, who has likewise ruled that it is unconstitutional for Arizona to protect its own borders, and therefore protect its own citizens.
– Which should lead, along with amendments like this, to a constitutional battle over the power of the Court, which now sits as a group of philosopher kings, rejiggering and reinterpreting its own precedents and arguments to reach conclusions favorable to a growing federal government while ignoring the source documents, our founding documents, its charged with interpreting and applying.
Making the counterargument to Prop 12o a kind of tautology: you can’t fight the federal government for state’s rights because the Supreme Court, an advocate for federal authority, says you lack the right to assert your state’s rights.
But here’s the thing: what happens if a state passes such an amendment (Californians w/ Prop 8 have this opportunity, as well), a court strikes it down as, in its opinion, unconstitutional, and the state simply decides to ignore that ruling.
In this case, the power of the EPA and Interior to regulate non-governmental land — down to puddles they are now calling navigable waters, and our human exhalation, which they have now determined is a pollutant — would be called into question. And that’s the surest way to collapse the tyrannical administrative state — by exposing it as the unelected arm of the federal government it has become, and by showing the extent of its applicable legal power without congressional consent or approval.
I’ve pushed for this strategy and I believe it will work, provided we are able to find brave legislators and governors willing to take on the feds: it’s civil disobedience writ large, and an assertion of federalism that is supposedly protected by the 9th and 10th amendments — amendments our federal courts have essentially taken to pretending don’t exist.
Jan Brewer, for all her bravery elsewhere, needs to look at the larger picture. Vetoing a law because you know SCOTUS will strike it down shows a fidelity to SCOTUS that, at the heart of the conflict over the state of our nation, is, given recent rulings vs what is clear intent of constitutional principles, a pre-emptive surrender of the game because you acknowledge the game is rigged.
My solution is to force a change of the game — to take us back to first principles, to loosen the hold bureaucrats and federal judges more concerned with appearances and, increasingly, “social justice,” and in so doing, reattaching the country to its founding Constitutional moorings.
Griping isn’t enough — not against dedicated ideologues whose long game is nearly complete. The power of the states and its people to rebel against federal overreach — DC has no right to sacrifice the safety and economic stability of Arizona to shore up the Hispanic vote, no matter what John Roberts says (Alito and Thomas were spot on in their dissent, when they pointed out Arizona wouldn’t have joined a union wherein they would be told their own self governance was to be largely symbolic) — is a check on “fundamental transformation.”
But it’s a gambit we need to be willing to play.
Live free or die. This choice continues asserting itself – and it’s becoming more than merely a quaint slogan, or the tattoo on some survivalist’s forearm.