Fundamental Powers of the State by bhd38866

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									 1 AS ADOPTED BY THE SENATE
 2 January 19, 2010
 3
 4                                                        S. 424
 5
 6   Introduced by Senators Bright, S. Martin, Alexander, Campbell,
 7   Fair, Knotts, Cromer, Mulvaney, Verdin, L. Martin, Shoopman,
 8   Rose, McConnell, Thomas, Cleary, Courson, Coleman, Davis,
 9   Reese, Campsen, Grooms, Ryberg, Peeler, O’Dell, Bryant and
10   Massey
11
12   S. Printed 1/19/10--S.                   [SEC 1/20/10 12:09 PM]
13   Read the first time February 12, 2009.
14




     [424-1]
 1
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 9           A CONCURRENT RESOLUTION
10
11   TO AFFIRM THE RIGHTS OF SOUTH CAROLINA BASED
12   ON THE PROVISIONS OF THE NINTH AND TENTH
13   AMENDMENTS TO THE UNITED STATES CONSTITUTION.
14
15     Whereas, the United States Constitution and the Bill of Rights
16   established a federal government limited in scope and guarantee of
17   personal liberty so that our citizens will be free to pursue their
18   inalienable rights of life, liberty, and the pursuit of happiness as
19   recognized in the Declaration of Independence; and
20
21      Whereas, the Ninth Amendment to the United States
22   Constitution provides that “The enumeration in the Constitution, of
23   certain rights, shall not be construed to deny or disparage others
24   retained by the people”; and
25
26     Whereas, pursuant to the Ninth Amendment, the people are
27   guaranteed the right to privacy as a basic human right; and
28
29     Whereas, the delivery, administration, and receipt of medical
30   care affects personal privacy and involves the most intimate and
31   personal of choices; and
32
33      Whereas, the Tenth Amendment to the United States
34   Constitution provides that “The powers not delegated to the United
35   States by the Constitution, nor prohibited by it to the States, are
36   reserved to the States respectively, or to the people”; and
37
38     Whereas, the Tenth Amendment defines the limited scope of
39   federal power as being that specifically granted by the United
40   States Constitution; and
41


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 1     Whereas, pursuant to the Tenth Amendment, by limiting the
 2   scope of federal power to only those specifically enumerated in the
 3   United States Constitution, the states retain plenary power to
 4   govern; and
 5
 6     Whereas, despite the clear limitations placed upon it by the
 7   United States Constitution, the federal government has steadily
 8   expanded its reach into the lives of our citizens and, in so doing,
 9   violates the very principles upon which this nation was founded;
10   and
11
12      Whereas, the United States Supreme Court has said that states
13   have great latitude in regulating medical care and standards, which
14   have historically and constitutionally been primary state
15   responsibilities and affect areas of core state responsibility, yet
16   Congress and the President are reaching agreement over legislation
17   that will result in the federal government absorbing the regulation
18   of medical care, stripping the states of most responsibility, and
19   taking away the free choice of the citizens of the states; and
20
21     Whereas, the federal government has spent trillions of dollars of
22   borrowed money to run deficits, to bail out financial institutions, to
23   prop-up auto makers, and to keep afloat other private enterprises
24   that were mismanaged, took unnecessary risks, or were
25   unresponsive to market demands, thus amassing a debt that will
26   loom over and burden our country for generations to come; and
27
28      Whereas, the federal government habitually responds to its
29   annual budget shortfalls by burdening the states with unfunded
30   mandates, shifting costs for programs to the states, limiting state
31   flexibility, and interfering with state revenue systems, undermining
32   the constitutionally created balance between federal and state
33   government; and
34
35      Whereas, the United States Supreme Court has ruled that
36   Congress may not simply commandeer the legislative and
37   regulatory processes of the states, and that states may provide their
38   citizens with protections that exceed the protections by the federal
39   government; and
40
41     Whereas, the United States Supreme Court has ruled that the
42   United States Constitution allows states to grant rights to their


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 1   citizens in their state constitutions, beyond rights granted in the
 2   federal Constitution; and
 3
 4     Whereas, the United States Supreme Court has recognized that
 5   federal law restricting certain rights may be ineffective in denying
 6   those rights protected in state Constitutions; and
 7
 8      Whereas, the State recognizes that as an independent sovereign,
 9   the State along with the other states of the union took part in an
10   extensive bargaining process through the adoption of the
11   Constitution and the various amendments thereto, and like any
12   other party to any other agreement, the State is bound to uphold the
13   terms and conditions of that agreement. Through this agreement,
14   the states have collectively created the federal government,
15   limiting the scope of its power and authority, as well as ensuring
16   that certain fundamental rights are guaranteed. Also, through this
17   process the federal judiciary has interpreted the Fourteenth
18   Amendment to limit states’ governmental authority by providing
19   that important rights and protections afforded by the United States
20   Constitution to the people as citizens of the United States are also
21   extended to each person as a citizen of an individual state.
22   Pursuant to that interpretation, this State is bound to uphold the
23   principles and protections afforded by the Fourteenth Amendment
24   which guarantees the privileges and immunities of the United
25   States, due process of law, and equal protection under the law; and
26
27     Whereas, the federal government is considering legislation that
28   may, among other things, obligate residents in South Carolina and
29   other states to purchase health insurance; and
30
31     Whereas, the federal government is considering legislation that
32   may, among other things, mandate that this State and other states
33   increase its spending for Medicaid; and
34
35     Whereas, the General Assembly of this State reaffirms that the
36   people of this State, have collectively, through the exercise of their
37   authority as citizens of a sovereign state determined the
38   constitutional balance of power in this State; and
39
40      Whereas, the citizens of this State have exercised their sovereign
41   authority both directly through the passage of this state’s
42   constitution and the amendments thereto and representatively
43   through their duly elected representatives in the General Assembly,

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 1   and the General Assembly exercises the power of the people
 2   without limitation except as provided by the State Constitution;
 3   and
 4
 5     Whereas, one of the most fundamental powers of any state in the
 6   exercise of its sovereignty is through the power of appropriation
 7   and under our state’s constitutional balance of power, the power of
 8   appropriation is firmly placed within the province of the General
 9   Assembly; and
10
11     Whereas, the General Assembly rejects any attempt by the
12   federal government, either through the actions of the Congress or
13   the federal courts, to limit, alter, or otherwise affect in any manner
14   whatsoever the General Assembly’s sovereign exercise of the
15   power of appropriation; and
16
17     Whereas, there is concern that the federal government will also
18   overstep its authority and violate the Tenth and the Second
19   Amendments of the United States Constitution by enacting far-
20   reaching restrictions or even a ban on gun purchases and
21   ownership; and
22
23      Whereas, the Second Amendment to the United States
24   Constitution provides: “A well regulated Militia, being necessary
25   to the security of a free State, the right of the people to keep and
26   bear Arms, shall not be infringed”; and
27
28     Whereas, intervention by an armed South Carolina militia may
29   prove to be the sole means for this State to protect the Liberties
30   guaranteed it and all other states under the Tenth Amendment to
31   the United States Constitution; and
32
33     Whereas, due to the potential need for intervention by an armed
34   South Carolina militia, the protections afforded under the Second
35   Amendment to the United States Constitution are of upmost
36   importance to the Citizens of South Carolina and the State of South
37   Carolina; and
38
39     Whereas, it is vitally important for the future of our nation that
40   the states stand against the relentless expansion of the federal
41   government and restore the proper balance to our federal system.
42   Now, therefore,
43

     [424]                             4
 1   Be it resolved by the Senate, the House of Representatives
 2   concurring:
 3
 4   That the General Assembly of the State of South Carolina, by this
 5   resolution, claims for the State of South Carolina sovereignty
 6   under the Tenth Amendment to the Constitution of the United
 7   States over all powers not otherwise enumerated and granted to the
 8   federal government by the United States Constitution.
 9
10   Be it further resolved that it is the policy of the State of South
11   Carolina that:
12
13        No law shall interfere with the right of a person to be treated
14   by or receive services from a health care provider of that person’s
15   choice;
16        No law shall restrict a person’s freedom of choice of private
17   health care systems or private health care plans of any type;
18        No law shall interfere with a person’s or an entity’s right to
19   pay directly for lawful medical services; and
20        No law shall impose a tax, penalty, or fine, of any type, for
21   choosing a health care provider, to obtain or decline health care
22   coverage or for participation in any particular health care system or
23   plan.
24
25   Be it further resolved that it is the policy of the State of South
26   Carolina that the Attorney General will challenge the
27   constitutionality of any provision enacted by the United States
28   Congress that would violate any of the policies established by this
29   resolution and join with other states that are like-minded to make
30   such a challenge.
31
32   Be it further resolved that no state agency, agent, department,
33   instrumentality, or subdivision shall cooperate or participate in any
34   way with any mandate passed by Congress upon notification by
35   the Attorney General that the mandate has been successfully
36   challenged in a court of competent jurisdiction, and further
37   provided that there is not an order to the contrary by a court of
38   competent jurisdiction.
39
40   Be it further resolved that the General Assembly of the State of
41   South Carolina, by this resolution, claims for the citizens of South
42   Carolina and the State of South Carolina freedom from all laws


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 1   and mandates that violate the rights granted under the Second
 2   Amendment to the United States Constitution.
 3
 4   Be it further resolved that this resolution serves as notice and
 5   demand to the federal government, as South Carolina’s agent, to
 6   cease and desist immediately all mandates that are beyond the
 7   scope of the federal government’s constitutionally delegated
 8   powers.
 9
10   Be it further resolved that the General Assembly of the State of
11   South Carolina, by this resolution, affirms its support of the Ninth
12   and Tenth Amendments to the United States Constitution.
13
14   Be it further resolved that copies of this resolution be forwarded to
15   the President of the United States, the Speaker of the United States
16   House of Representatives, the President of the United States
17   Senate, and each member of South Carolina’s Congressional
18   Delegation, all at Washington, D.C., and to the Speaker of the
19   House of Representatives and the President of the Senate of the
20   legislatures of the other forty-nine states.
21                                  ----XX----




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