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Text: Gale Norton's 1996 Speech on the 10th Amendment

Text of then-Colorado Attorney General Gale Norton's remarks to an Independence Institute symposium, held August 24, 1996, in Vail, Colo. (Text was downloaded from the Independence Institute Home Page.)

"The issue of the 10th Amendment is something that even with a Republican Congress in place, it is still alive and well as an issue. Just a couple of days ago I met with the Assistant Attorney General for the Department of Justice, who is in charge of land and natural resource issues. She quite explicitly threatened the State of Colorado and other states because we had the audacity to adopt something in environmental area that we in Colorado think makes sense but the Federal government doesn’t agree. We’ll have the opportunity to do battle once again on the issue of the state being able to make its own decisions. This is not something that is a battle that we have won and we can forget about. This is a battle where we are still very much in the trenches in trying to make a difference.

"The 10th Amendment is part of our Constitution. It says the powers that are not delegated to the Federal government by the Constitution are reserved to the states respectively, or to the people. It is, unfortunately, an amendment that through time has not been given the power that one would think that it should be entitled to. The courts have not been strong defenders of that amendment. We’ve seen the cases sort of ping pong back and forth, with the states very often losing the ground that we’ve managed to gain. Part of that has been because we seem to be plagued by bad facts in these cases; bad facts make bad law.

"Not too long ago what we thought we had a tremendous 10th Amendment case to bring for the State of Colorado, and some of my attorney’s were very excited about this case. It seems the Federal government had a specific directive that the state was being required to follow that dealt with the construction of the state capitol building. Now, what could be more part of the state’s own decision making then how it’s own state capitol is going to be constructed? Great, terrific, we could take that to court, we might be able to win. Expect it has to do with this really ugly addition to the state capitol; it’s the wheel chair ramp required by the Americans with Disabilities Act. Cooler heads less excited about legal theory prevailed and said no, we really don’t want to be fighting this one. Time and again we see that the states end up on the losing side in having to say we fight against this Federal policy when all the Feds have to say is this is a great idea.

"I recall my very first battle on the 10th Amendment. It was dealing with the states vs. the Environmental Protection Agency. Colorado was one of a number of states that stood up against the first version of envirotest. The first time we started with automobile inspection and maintenance, one of our Colorado legislators, who was an engineer, had an idea of how to deal with automobile emissions inspections in the state. But it wasn’t what EPA wanted, and the EPA said unless you adopt exactly what we want we’re holding $240 million dollars of Federal highway funds hostage. They said we would not get that money unless you adopt exactly what we want.

"Well, we went to court and I represented the Colorado legislator. And when went in for our oral arguments in front of the 10th Circuit. As it would happen that day, we awoke for the day of the oral argument, looked out the window and it was one of those days you’ll remember when we could barely see across the street because the smog was so bad. I said, I think we’re in trouble. We managed to prevail in the court, which gave us 90 days in which to resolve the issue. As the end of those 90 days came near, the legislature finally lost its resolve and said we can’t just risk $240 million dollars in funding so we have to pass EPA’s version.

"If the state had prevailed, if every state around the country had been able to look at its own way of dealing with automobile emissions, we might not have gone through this last two years of having envirotest as this untested new mechanism being forced down the throats of the people of Colorado. We’d have 50 different experiments for trying to deal with the issue of air pollution. We might have had much better experiments that would have gotten us much further along in solving those problems. I think one of the examples we need to remember is that we can use the issue of Federalism as a way of solving problems in a better way.

"But to go back to the issue of bad facts and bad law. I recall, after I had just gone through this massive battle with the EPA on state sovereignty and states rights, visiting the east coast. For the first time, I had the opportunity to wander through one of those Civil War graveyards. I remember seeing this column that was erected in one of those graveyards. It said in memory of all the Virginia soldiers who died in defense of the sovereignty of their state. It really took me aback. Sure, I had been filing briefs and I thought that was pretty brave. And then there were times we looked beyond the substance. When we looked at the decision making process. And understood the 10th Amendment was part of that separation of powers. It was part of what was supposed to guarantee that our government would remain limited. What would guarantee our freedom? Again, we certainly had bad facts in that case where we were defending state sovereignty by defending slavery.

"But we lost too much. We lost the idea that the states were to stand against the Federal government gaining too much power over our lives. That is the point I think we need to reappreciate. We need to remind ourselves and remind the political debate that part of the reason the states need to be able to make their own decisions is to provide that check in our Federal system against too much power going to Washington.

"As I’ve talked with people all over Colorado, so many times I hear people talking about their cynicism. They don’t trust government anymore. They don’t think government makes decisions that serve their interests. Too often it’s because its viewed as Washington, where all the decisions are made. We need to return power back to states, back to local communities, so we can restore that citizenship we talked about earlier. We must restore the idea that people can have control over their own governments. How do we go about doing that? What is our strategy?

"First of all, I need to enlist all of you in helping us fight that battle. There are countless examples of the ways in which the Federal government has passed rules that have become goofy by the time they get to our level. We know that the Federal Government has imposed, at last count, according to the U.S. Conference of Mayors, $54 billion dollars in mandates on cities. That the simple issue of asbestos removal in schools is estimated to cost local school districts $200 billion dollars by the time it is all put into effect. There are examples after examples of the issues that are ruled on by the Federal government that don’t make sense here. We fight on a daily basis, in my office against those mandates.

"We have, for example, the Fair Labor Standards Act. Who could object to Fair Labor Standards? The idea that somebody works 40 hours you should pay them for 40 hours. If they work overtime you ought to pay them for overtime -- except when it gets in the way of decisions that we have made ourselves, that are based on our own understanding of common sense. Did you know that for a local government official, a government employee, to go volunteer for the volunteer fire department for that community violates the Fair Labor Standards Act? They can’t volunteer, they have to be paid. Does that make sense? Of course not. But that’s one of those directives that comes across the board from Washington that doesn’t make sense here. We have to fight this battle not just in Washington, not just in the U.S. Supreme Court, but time after time in our local communities, telling people how it impacts our local communities for those decisions to be made in Washington. We need to collect up those horror stories so we can communicate those and really make a difference. This is a battle that is going to have to be fought for the long term.

"On the Federal side, there are actions that we can take. Having Congress simply identify the source of their constitutional power before they take action is something that can make a tremendous difference. Let’s imagine, for example, the debate on something that none of us can object to from a policy perspective: the Violence Against Women Act. The Federal government decided it really needs to step in and do what the states haven’t fully done, which would protect us from those who would do violence to women. What Federal power are we talking about? Commerce power? Is it interstate commerce when you’re talking about domestic violence? I don’t think so! Is it national defense? Not exactly. You can go through the whole checklist. When you start having that kind of debate again on the floor of Congress, it will start making a difference to shift that power back to where it belongs.

"We must talk about what our Constitution says. It’s talking about how we can empower local communities to respond to national crisis. We need to look at the identity of those who judge the 10th Amendment, our judges. That’s a whole other lecture I could give you, but that is an incredibly important issue to focus on during this Presidential election cycle. Who is it that is appointing our judges, and what values do they reflect and what position on the Constitution do they reflect?

"How do we deal with unfunded mandates? Most of the discussion so far has talked about new mandates, not about going back to existing mandates. To start reeling those back in, to start returning money as well as responsibility back to states and local communities, are decisions we have to make, that we have to fight for. Just as free markets triumphed over communism, we are in a time when the intellectual debate is shifting; when we are part of the framework that will make these things happen; when we can be part of the intellectual battle that shift power from Washington back to states and local communities."

© 2001 The Washington Post Company

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