States’ Rights 
By Martin Harris

What do VT and MT have in common? Copper mining in Vermont (specifically, Corinth and South Strafford) pretty much ended in the late19th century, but continues in the Big Sky Country. Aggressive Leftist politics (specifically, the International Workers of the World) pretty much ended in the Big Sky Country in the mid 20th century but has recently emerged in Vermont. Both states have populations with environmental interests, but Montana is the headquarters of the private-sector-action-advocating Political Economy Research Center, while Vermont is identified with government control, from billboard prohibition and Act 250 in past years to anti-big-box actions at the town level and anti-nuclear politics at the State level in recent years.

The answer is "States’ Rights". Thinking of the phrase as a label for segregationist policies in the Old South is decidedly obsolete; the new States’ Rights arose from the ashes of the more-recently-ignored Tenth Amendment prescription so that public education everywhere could escape from the Federal tyranny of No Child Left Behind, a 2001 requirement that almost all public school show test scores at the "proficient" level by 2014. Getting their young charges to "proficient" was such a foreign notion to edu-crats that, in almost every State, lobbyists were mobilized to enable each State to select any test, in lieu of the Federal one; and overnight, publishers like McGraw-Hill filled the newly-opened marketing niche with easy new tests for States to purchase, use, and display the better-than-NAEP results therefrom. Vermont, typically, went a step further, some of its districts filing suit against the Feds on the grounds that getting almost all students to proficient wasn’t in their job description, and if the Feds wanted such an unreasonable outcome, why then the Feds would have to pay a lot extra for it. The epithet was "unfunded mandate"; the argument was that each State should have the Right to pick its own tests.  Vermont has purchased NECAP; Tennessee has purchased TCAP; and Montana has purchased MontCAS. Only Nebraska has refrained from end-running the NAEP. Thus, the States won out: federal testing still exists, but its dismal score-results get as little publicity from the State educational establishments as possible.

While Montana’s purchase of MontCAS was perhaps predictable, its other States’ Rights Initiative isn’t. The State Legislature has ruled that gun-ownership of a completely intra-State nature is immune to Federal regulation, and Democratic Governor Brian Schweitzer has signed it into law. The ACLU and other avid gun controllers will not take kindly to this, and Federal precedent is on their side.

Consider, for example, the 1942 decision of the US Supreme Court in Wickard v. Filburn. Led by Chief Justice Harlan Stone, all nine agreed that USDA Secretary Wickard had the authority to regulate the household-use grain produced by wheat-farmer Filburn, in accordance with the Agricultural Adjustment Act of 1938, because, even though it wasn’t used in Interstate Commerce, it replaced wheat which Filburn would otherwise have had to buy from inter-state sources and would have been regulated by USDA under the Commerce Clause of the Constitution. Additionally, Filburn’s criminally-grown 239 bushels violated his USDA wheat quota. The decision had impact far beyond the WWII years: it was the precedent-setting basis for the 2005 SCOTUS decision in Gonzales v. Raich, that home-grown medicinal marijuana is a legitimate subject of Federal regulation because, as with Filburn’s wheat, it competes with marijuana that moves in Interstate Commerce. Here’s the Court’s explanation: "Wickard thus establishes that Congress can regulate purely intra-State activity that is not in itself "commercial", in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the Interstate market in that commodity". Remarkable.

SCOTUS precedent isn’t always permanent: Brown v. Board over-ruled Plessy v. Ferguson on separate-but-equal, and Payne v. Tennessee over-ruled Booth v. Maryland on an Eighth Amendment interpretation.

Now that States’ Rights is a proud new principle when supporting easier student tests, can it support Second Amendment principles as well? Stay tuned.

Martin Harris is a former Chairman of Citizens for Property Rights