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Palin And Perry Skirt Secession

Publication Date: 
April 26, 2009
The Huffington Post
Matt Sledge

Dean Larry Kramer is quoted in the Huffington Post in an article that discusses "state sovereignty" resolutions currently being considered in several states. Governor of Alaska Sarah Palin and Governor Rick Perry of Texas are both contemplating what the Huffington Post calls "an unorthodox interpretation of the Tenth Amendment that some say courts secession":

The Tenth Amendment, one of the least well known of the Bill of Rights, reads, "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."

A similar provision in the Articles of Confederacy had included the word "expressly" before delegated, which greatly limited the power of the central government. In the debate over the Constitution, the word was pointedly cut out.

"They took the 'expressly' out, and that was clearly understood to leave room for implied powers," says Larry Kramer, Dean of Stanford Law School. It is under the heading of implied powers that the federal government has greatly expanded its influence since the Civil War, and courts have generally ruled that the feds do indeed have many powers beyond those expressly listed in the Constitution.

"The Tenth Amendment does no work," Kramer says. It "doesn't do anything to affirmatively impose greater limits on the federal government," he says, but serves simply "as a reminder, to provide some security that there's supposed to be a limit to Congressional power."

After taking a look at some of the state sovereignty resolutions, Kramer said that the text of most of them seemed to be making the "perfectly unexceptionable" argument that federal power had expanded too far.