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States to feds: Come and take it!

Published in Blog on July 17, 2017 by Convention Of States Project

“It is seldom that liberty of any kind is lost all at once. Slavery has so frightful an aspect to men accustomed to freedom that it must steal in upon them by degrees and must disguise itself in a thousand shapes in order to be received.”

– David Hume

By degrees, and in a thousand shapes, a soft slavery has crept upon us. It has come as our federal government has stretched its tentacles into the province of policy-making prerogatives that rightfully belong to the states. It has come as federal agencies have micromanaged business and industry through onerous rules and regulations. It has come through executive orders and “guidance” documents that interfere with state affairs – even our right to manage our own schools – and in the form of Supreme Court decisions with the power to rewrite the laws of 50 states in one fell swoop.

These changes that have shifted power from the states and the people to a centralized national government in Washington, D.C., have been illegitimate changes. They have not been achieved constitutionally, by the actual consent of the governed to an expansion of the powers granted to the federal government in our written compact. Rather, they have been foisted upon us in the guise of “interpretations” of that compact. They have crept in through clever redefinitions of constitutional language – always to expand national power at the expense of our liberty.

In fact, the illegitimacy of the processes through which these changes have been imposed is a far greater threat than their substantive menace, because they have subverted the rule of law. In his farewell address, George Washington warned us about this:

“If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”

For decades federal actors have gone unchecked as they enlarged their powers through usurpations the judiciary has legitimized. But the states are beginning to fight back with the very tool George Washington commended to us.

Case in point: the state of Texas. Last week in his State of the State Address, Texas Gov. Greg Abbott announced that one of his four “emergency” items for this legislative session is passage of the Convention of States Project’s resolution to trigger an Article V convention for proposing constitutional amendments that will restrain federal overreach.

Article V of the Constitution empowers the states to convene a meeting to propose amendments designed to restore and fortify the limits on federal power. Where checks and balances at the federal level have failed, the states can stand in the gap.

Gov. Abbott’s declaration of intent to do exactly that – by passing the Convention of States resolution – is an echo of the legendary Texas challenge, “Come and Take It.”

When the Mexican government demanded the surrender of the single cannon held by Texan colonists in Gonzales in 1835, the Texans knew that compliance would only empower a tyrant to continue his defiance of the rule of law. So on Oct. 2, Col. Moore led the Texans out to meet Capt. Castenada’s forces, carrying a flag emblazoned with those audacious words, “Come and Take It.” And when Castenada refused to leave them in peace, they used the cannon to defend the cannon.

To the federal usurpers who demand the surrender of our right of self-governance by degrees and disguises, it is time for all the states to say, “Come and Take It.” But like the forces of Col. Moore who refused to back down, we must do more than flutter audacious sentiments on the wind. We must use the cannon to defend the cannon. The “cannon” is Article V of our Constitution – and it is of little worth to a people who lack the fortitude to use it.

Those who suggest that “protecting” the Constitution means surrendering the weapon it provides to the states in Article V have fundamentally misunderstood the nature of this conflict – and the nature of Americans. They would have us seal our single cannon in glass, hand it over, and render ourselves defenseless. But that has never been the American way.

The American way – the way of courage – requires that we use our Article V defense to reclaim our liberty in the most definite and lasting terms.

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Rita M. Dunaway is a constitutional lawyer whose commentaries are featured regularly on and other conservative news websites. As National Legislative Strategist for The Convention of States Project, Dunaway encourages state legislators to use their constitutional authority to restore the robust federal system designed by the Constitution.


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