I was in Memphis, Tennessee, last week and visited the National Civil Rights Museum, built around the Lorraine Motel where Dr. Martin Luther King Jr. was assassinated in 1968. Standing in this iconic place evoked many of the same emotional connections that I experience when viewing the box at Ford's Theater where President Lincoln was shot in 1865 or the bed in which President Washington died at Mount Vernon in 1799.
The manifestations of racism that Dr. King confronted included efforts by many state and local officials to nullify the Constitution and federal law by refusing to carry out desegregation orders of the United States Supreme Court. President Lincoln led the country in a massive civil war to ensure a "new birth of freedom" and preserve the "more perfect union" that had been crafted by the Constitutional Convention, over which George Washington presided after leading us in war and before his election as our first President.
What would these great national leaders think about the modern incarnations of states' rights activism that once again seek to nullify federal law, including the Constitution?
For example, the systematic dismantling of protections of the Voting Rights Act through selective franchise qualifications designed to suppress voter participation? Or the use of local regulatory tactics to deny women the rights of privacy and choice afforded by the Constitution? Or the senior United States Senator from Kentucky urging state governors to ignore coal emission regulations issued by the EPA?
Let me be clear. With the exception of voter suppression, I would not suggest that these measures reflect racist motivations. But taken as a whole they amount to a consistent onslaught on federal authority and a resurgence of some of the worst elements of states' rights theories of the past.
Last week, I wrote about the misplaced political rhetoric criticizing proposals to protect the Arctic National Wildlife Refuge as an assault on state sovereignty. As it turns out, attacks on sovereignty can run in two directions.
For example, the Alaska House of Representatives approved a bill earlier this month that orders the United States government to hand over most federal land in Alaska to the state by the end of next year. This would include national monuments, preserves and refuges, including the Arctic National Wildlife Refuge. But the federal government could keep its national parks. Click here to read an excellent Alaska Dispatch article about this legislation.
Now that's an assault on Sovereignty.
The Alaska House bill dovetails with an amendment introduced by Senator Lisa Murkowski (Republican-Alaska) to the budget resolution recently passed by the United States Senate. Her amendment was initially defeated during the marathon legislative circus that has become known as vote-a-rama, in which Senators voted on more than 1,000 amendments to the budget. However, the proposal went over the top by 51-49 when Senator Susan Collins (Republican-Maine) changed her vote. The budget amendment, which is non-binding and largely symbolic, provides for the sale or swap to individual states of America’s public lands, including our national forests, wildlife refuges and wilderness areas, but excluding national parks, monuments and preserves.
The underlying purpose of these measures is to weaken conservation protections for our national heritage lands. Click here for an excellent analysis by The Wilderness Society and click here to read a related op-ed in The New York Times.
The tundra land grab has been tried before. A similar attempt was made in 1982, prompting the Attorney General of Alaska to issue a formal legal opinion that the legislation was unconstitutional.
Specifically, the Attorney General concluded that "no good faith argument could be made to support" the claim that Alaska owns federal lands within its borders. The legal opinion was based in substantial part on the explicit disclaimer of any interest in or claim to federal lands that the State of Alaska made when it entered the Union.
Section 12 of the Constitution of the State of Alaska contains this explicit “Disclaimer and Agreement: The State of Alaska and its people forever disclaim all right and title in or to any property belonging to the United States or subject to its disposition, and not granted or confirmed to the State or its political subdivisions, by or under the act admitting Alaska to the Union. ... The State and its people agree that, unless otherwise provided by Congress, the property, as described in this section, shall remain subject to the absolute disposition of the United States.“
The land grab bills, both the 1982 vintage and this year's version, are clearly unconstitutional -- and a colossal waste of legislative time and taxpayer resources, especially if their invalidity needs to be confirmed through judicial process.
Alaska is America's last frontier, and its residents are famous for their rugged self-sufficiency and independence. I understand why demagoguery about sovereignty, nullification and states' rights resonates in the state, especially with the current budget crisis looming large as oil prices and production plunge.
But it is important to focus on the public policy merits of issues involving land use, resource extraction and development, conservation and wilderness values -- all of which have pros and cons that can be reasonably debated -- and not get distracted by political sound bites that are poorly grounded in history and law.
The balcony of the Lorraine Motel in Memphis, where Dr. Martin Luther King Jr. was assassinated in 1968.