Why is every State Referendum a Constitutional Amendment?

Constitutional Amendment

Another round of elections came and went this past Tuesday and, as usual, it struck me how many states are floating referendums that change the constitution of the state in question. I think a lot of people might be confused about the subject and I thought I’d try to clear things up.

Every referendum being a Constitutional Amendment is serious threat to We the People.

The Tenth Amendment

It all boils down to the Constitution of the United States and specifically the Tenth Amendment. The text is quite straight forward. 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.

It’s those last four words that throw a wrench in the plans of all the statists who want to dictate to you how to lead your life. What does it mean? It’s pretty simple. If the Constitution of the United States does not specifically have the power to act on a certain issue, then it is up to the States or the People.

The Word Or

Or. That’s the key word. It’s not and to the people. It’s or to the people. In logic, which the Framers of the Constitution understood, there is an enormous difference between And and Or.

Here’s an example. I was born in St. Louis, Missouri. If I were to say I was born in Springfield and Missouri that statement would be false. With an And statement, both sides must be true before the statement is true. If either side is false, the entire statement is false.

Now, if I were to claim I was born in Springfield or Missouri that statement would be true. With an Or statement, if either clause is true, the entire statement is true.

What does all this Mean?

What the Constitution says is when it comes to powers not specifically stated in the Constitution of the United States, it’s up to the State or the People to decide. The same logic largely applies when it comes to powers for the individual states.

If the state of Missouri passes a law restricting local rules to a CAFO (Concentrated Animal Feeding Operation); that law can be overridden by the People in the form of a local ordinance. So, Missouri says, you cannot restrict CAFO operations. A local community votes to do just that. That Or is a huge part of the equation.

Without a State Constitutional Amendment, the local ordinance overwrites the state law. When the Framers wrote Or they meant it. The law that applies is the one closest to the People. People override State and State overrides the Federal Government, unless it is written into the Constitution. Then it’s the opposite, which is exactly what states are doing.

The Deeper Meaning

The deeper meaning of the state writing a huge number of Constitutional Amendments is that it rips power away from the People. The Framers understood the Federal Government needs to be limited because the people of a state know better the circumstances of their governance. Likewise, the people of a local community know better than the state how to run their government.

Let’s take a quick look at a hot topic these days. The mentioning of homosexuality in schools. It seems perfectly self-evident to me that the people of Orlando, Florida and the people of Baker County, Florida will have different views on this subject.

When the state of Florida tries to dictate to both of those communities how they should treat this subject it steals the rightful authority from those communities.

It’s vitally important to understand if you agree with the right of Florida to restrict Orlando from mentioning homosexuality in school then you also agree with the right of Florida to force mentioning homosexuality in school to Baker County. We give the state power it should not, must not, have.

If Baker County passes a law restricting mentioning such topics in school, they have every right to do so, just as much as Orlando has the right to allow it. This is local control of government and the Framers understood the more the state infringes on local communities, the less local communities want to be part of the Union.


The states are grabbing power from local municipalities at an alarming rate. The state thinks it knows better for Baker County and Orlando both. It doesn’t. The People do.

Tom Liberman

Freedom of Religion

Freedom of ReligionI think one of the most interesting clauses in the Constitution of the United States is that of the First Amendment’s Freedom of Religion. Recent events bring up intriguing issues in regards to its enforcement and that is the topic of my blog today.

Anyway, let’s start with the actually wording of the clause, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”

This clause is often referenced as the Establishment Clause and is generally interpreted to:

  1. Prohibit the establishment of a national religion by Congress
  2. Prohibit the preference by the U.S. government of one religion over another

Early on there were established State Religions and generally prior to the Fourteenth Amendment this clause was interpreted to restrict the federal government but not the states. In fact, eight states still legally refuse to allow Atheist to hold office although the Supreme Court has ruled this unenforceable.

The Due Process Clause of the Fourteenth Amendment is an extremely interesting subject and perhaps I’ll take that on in a future blog. Basically, this clause has expanded the interpretation of the Establishment Clause to the states. So that now individual states are under the same restrictions as the federal government. I could spend quite some time discussing the relative value of this expansion but it’s not really the topic I’d like to take on today.

Today I want to discuss how individual and organizational religious beliefs are now being protected. There are any number of cases working their way through the courts but the gist of all of them is that an individual or group is immune to legal  requirements because of their religion. For example, a Catholic pharmacist can refuse to prescribe birth-control pills or a hospital might be able to refuse to provide contraception to workers on their health plan. A deeply religious person might be able to legally assault someone who offends their belief system.

Freedom of religion cuts both ways.

The idea that the federal and state governments must allow people to worship religiously of their own accord with no undue influence is, in my opinion, a good plan. The original clause is relatively simple, the state cannot force me, in any way, to worship a particular religion. They cannot lead me in forced prayer, they cannot force me to attend a particular place of worship, they cannot pass a law making my belief system illegal.

The problem comes in defining worship. There are no easy answers here. Is beating up atheists a requirement of my religion? Is killing infidels a requirement of my religion? Does my opposition to birth control make me immune to a law that requires me to pay insurance benefits? It’s an endless debate that grows ever more complex and threatens religious freedom for Atheists, Christians, Wiccans, Muslims, Taoist, and all the rest.

As a Libertarian I think a much more restrictive interpretation solves a great number of these issues. If we simply prevent the establishment of religion by the state and prevent laws giving preference to one religion or another we go a long way towards eliminating these questions. If a hospital is legally obligated to pay for health insurance they must do so. If a man assaults another he must face the consequences. If a teacher leads a non-mandatory prayer then they can do so. If a state wants to say a prayer before assembly they can provided it is not mandatory and penalties are not applied to those who don’t take part. A school must be allowed to cover the ideas evolution and creationism but cannot only teach one.

Don’t enforce your religion on me. It’s that simple. Believe what you will but established laws otherwise apply.

This one is sure to anger people on both sides of the political landscape but hopefully I’ve explained why a Libertarian point of view, in which the state’s influence is minimized, is often best at preventing the majority from enforcing their will on the minority and allows us all our freedom, religious or otherwise.

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Tom Liberman
Sword and Sorcery fantasy with a Libertarian Twist