A Constitutional Crisis Part 2: “We Cannot Leave it to Washington to Lead”
That was the statement made by former Republican governor Schwarzenegger this week, in response to President Trump’s declared intention to leave the Paris Climate Agreement. Governor Inslee of Washington said the states would move forward even if the “president wants to go backward.” Former Republican-then-Independent Mayor Bloomberg acknowledged the power of the executive of international affairs, but not climate change. And here, in NC, two curious things are happening in the General Assembly that all exemplify a coming constitutional crisis. As I’ve argued before, “the inability to identify with mutual needs and interests across territorial boundaries may be manifesting in constitutional crises because absolutely nothing better represents a people, their ideals and values more than a constitution and/or a bill of rights.”
1. Non-state actors, states and businesses have no mechanism to engage with the UN.
2. When the states fail to represent the people, people will begin to represent themselves.
3. The result is the further weakening of both federalism as a political framework and the nation itself.
The excuse that the US should back out of the Paris Climate Change in order to make a better agreement defies credulity because one could easily surpass the expectations or the agreement, or renegotiate the targets which would be less time-consuming and costly than beginning anew. But more importantly, the reputation of the US historically was based in honoring its commitments to the world. What happens to the real and perceived power of the US if we’re viewed as an inconstant ally or a weak enemy who cannot keep its promises?
If the federal executive and federal legislature wish to move backward or discount the overwhelming evidence supporting climate change, well over 200 universities, businesses, American cities’ and states’ leaders, such as the wildly popular Republican Governor Baker of Massachusetts, have resolved to do it themselves. Like any other grassroots movement- on the surface- they all start from a perceived inability or unwillingness of authority to listen and offer redress. Most of those committing to the Paris Agreement are well-intentioned, but in attempting to fill a gap left by the federal executive, they could quite possibly create more.
Where this is radically different from other grassroots movements is that the aim is not to gain the attention and ultimately the support of the federal government to do something; many of these voices are coming from within the government itself! The intention is to go around, or as Bloomberg put it, go in “parallel” the federal and to do it ourselves.
There are problems with this approach, from the logistical to the philosophical. Just as with ISIL, there is no mechanism in which a non-state (a non-sovereign nation) actor can participate in an Accord, a multi-national organization like the UN, or group of states. There is no place for the non-countries to sign.
As a result of a weakening federalism, we raise the power of the states. This should be quite alarming. The last time states had more power than the federal government was before the American Revolution, when no declaration could be made unless each of the 13 colonies consented. NC’s Halifax Resolves in the spring of 1776 encouraged the other colonies to declare independence, but it still took several more months to “Join or Die”. With approximately equal power, during the American Civil War, a minority of states was able to drag the entire union asunder, as the remainder fought back for federalism as much as for emancipation, believing a nation divided cannot stand.
Perhaps nowhere is the danger and desire of states’ rights already more felt than in the American South. The states where abortion services are illegal place enormous burdens on the surrounding states and the individuals stuck with this decision. The situations of medical necessity alone- miscarriage, ectopic or molar pregnancy- should be enough to retain this right. On the flip side, many of the same folks against abortion, decry the non-transferability between states of conceal and carry permits. Drivers’ licenses, vehicle emissions, and healthcare rates all vary by state as well, making it nearly impossible for some to move and diminishing the rights of a nation’s citizens to free movement and equal access.
Within states, too, we see a smaller scale the same. Last week the NC General Assembly pushed an asinine bill to remove the permitting requirement for a concealed weapon and lower the purchasing age through the Finance Committee- with no financial information whatsoever. Had the bill gone to an appropriate committee, it would have been debated, so in a procedural stunt, they punted it to Finance and pushed it through to a full floor vote. Conversely, HB200 for independent redistricting has been buried- not allowed to committee at all- to prevent it from coming to a floor vote, despite being co-sponsored by about a third of the House Representatives. Because the bill has been buried in the dark for months and hearings refused, a group of election activists are staging their own hearing for it in one of the community rooms in the actual legislative building June 5th.
I am sympathetic to the cause- to businesses and cities obligating themselves- asking to be held accountable- to an agreement the executive has attempted to repudiate. I am sympathetic to the cause of hearing a bill that quite clearly has the support of a demonstrably sizable (39 Reps!) population that have asked their reps to support. In fact, I’ll be there Monday to witness it.
But I’m also worried about the precedent we’re setting and the path we’re starting down. There may be little choice at this point. After all, we cannot simply “vote them out” with the gerrymandering and voter suppression. But still the consequences should be addressed. At the national level, we’re reducing the power of the federal government. Many Americans will be happy with that today. But what happens in four years? Eight? Or twenty-four?
Without a steeled federal government, are we setting ourselves up for a civil war between states? If we allow private businesses to lead the charge for climate change, aren’t we also opening the path for all big business to do the same? Aren’t the inherent conflicts of interests we have now with big business lobbyists and stakeholders allowed to continue profiting privately while in civil service part of the problems we’re experiencing now? Do we want to open that floodgate further? Is it something we can stop even if we wanted to?
In the NCGA, the GOP super majority has acted immorally and illegally too many times to count, from HB2, the December 2016 “secret sessions”, and repeatedly failing to provide 24 hours public notice, and has pushed the people of NC to the precipice of entertaining a shadow government. If you won’t represent us, we’ll do it ourselves. This is serious business and I don’t know that anyone- least of all the Bloombergs and Scharwarzeneggers of the world who can insulate themselves from the ramifications of these actions- has begun to consider.
Just as Schwarzenegger said, “one man cannot stop our clean energy revolution,” one woman cannot stop the constitutional tsunami that’s coming. Both Trump supporters and many activists agree- this country needs a wake-up-shake-up. The costs may even be worth it, but we haven’t done the math. We haven’t figured out what’s in our path. If I am correct, at the termination of the Trump presidency, we’ll be lucky if we’ve gone back in time 240 years to begin constructing a more perfect union. If we’re not so lucky, we’ll experience a brief reconstruction followed by a wave of KKK, neo-Nazi, anti-Muslim, anti-minority destruction, moving us backwards to a time before the 13th, 14th or 15th amendments existed. But if we’re extraordinarily prepared, inclusive and measured, we may even figure out a way to engage non-state actors in a compelling but balanced way with federal governments.
These are our choices. Two are nearly defaults. The third will take extraordinary brainpower and leadership. Do we have it? Who can lead?