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TESTA & VERRET: Deliberately misjudging Rick Perry

Governor talked ‘state sovereignty,’ critics reported ‘secession’

- The Washington Times - Friday, August 19, 2011

Since his entry into the presidential race, Texas Gov. Rick Perry has faced continued derision for his "secession comment." After his recent announcement, we were curious about the national media's characterization of the comment and were surprised to learn it is far less salacious than proclaimed.

He was prompted with a "gotcha" question on whether Texas should secede after speaking at a Tea Party rally against federal government intrusion into local issues and responded:

"There's a lot of different scenarios. Texas is a unique place. When we came in the Union in 1845, one of the issues was whether we would be able to leave if we decided to do that. My hope is that America, and Washington in particular, pays attention. We've got a great union. There's absolutely no reason to dissolve it. But if Washington continues to thumb their nose at the American people, you know, who knows what might come out of that. But Texas is a very unique place, and we're a pretty independent lot to boot."

Mr. Perry made a strong threat to respond to federal intrusion into matters traditionally left to the states. That threat should be considered along the lines of his previous responses in standing against the federal strings tied to stimulus money or in a sovereignty resolution he pushed through the Texas Legislature.

While he might have been more careful about answering such a loaded question, Mr. Perry took a principled stance in favor of state sovereignty; more important, he came nowhere near truly suggesting secession.

The national media has accepted at face value early mischaracterization of the comment from the liberal Huffington Post rather than engaging with his principled support for state sovereignty. It is much easier to dismiss his stance with such a gimmick than to address the argument directly, but voters shouldnt fall for such a cheap trick.

Supporters of state sovereignty believe that local empowerment makes leaders more accountable. Simply put, it's much harder to ignore your constituents when you still live next door to them.

And it's harder for special interests to reach 50 state capitals and thousands of municipalities than to concentrate their efforts inside the Beltway. Many politicians pay lip service to this principle, but when they get to Washington, they too frequently are insulated by the prestige and power they enjoy.

A state-centered government reflects the very best side of the American soul - our fierce competitiveness. Just like individuals, states are at their best when they compete, both for new residents and for new businesses. President Obama has demonstrated his contrary view that states are at their best when they compete for federal grant money.

Mr. Perry has made a name for himself by speaking out for a limited federal government that will get the economy back on track by getting out of the way. He has spent the past decade arguing that in his state, limited government barriers to entry have been the recipe for economic growth. He deserves a fair chance to make a state sovereignty argument in the presidential debate based on the results of his leadership, not the filtering of his words through the blogosphere.

Mr. Perry's stance also faces criticism from some on the right who would set aside the 10th Amendment when it's inconvenient. The 10th Amendment makes clear that any powers not expressly granted to the federal government, such as the regulation of marriage, are reserved to the states and the people.

For example, some think homosexual marriage is morally wrong and that a federal response is required. Mr. Perry recently responded to a question about homosexual marriage by saying that although he is not in favor of it, he does not think the federal government should have the right to legislate on the issue because to do so would violate state sovereignty.

Our belief in the rule of law and judicial restraint is most tested when we have a chance to use what the Constitution prescribes as the wrong legal forum to get what we believe is the right result. Like it or not, you have to agree that Mr. Perry's bold stance is as politically inconvenient as it is philosophically principled. That should count for something.

President Obama thinks that what works for Massachusetts is just fine for Texas, South Carolina or Iowa. Mr. Perry doesn't agree. The competing views deserve a fair hearing in the national debate. The "secessionist" brand is unfair, and worse, it's just sloppy journalism.

Brian Testa is a lawyer. J.W. Verret is an assistant professor at George Mason University School of Law and director of the Corporate Federalism Initiative.

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