Texting our way out of states' rights
The 2009 session of the Legislature joined a dozen other states with a resolution reminding the federal government that there was a 10th Amendment to the U.S. Constitution stating that powers not delegated to the national government, nor prohibited to the states, were reserved to the states or the people.
The amendment was attached to the Constitution in December 1791 to allay the fear of states that their powers would be absorbed by the national government. So for the past 218 years states have kept reminding national policymakers that the 10th Amendment guaranteed states' rights.
In spite of the repeated reminders, the national government has continued to pre-empt states' rights when some national objective became involved. In cases where it was clear that authority to deal with an issue belonged solely to states, the national government has used money to bribe states to bend to the national will.
We now have such an issue at hand. Four U.S. senators, alarmed at the failure of states to act, have introduced legislation in Congress to outlaw message texting by drivers in traffic. The issue is serious. The fatality figures are appalling, with studies indicating that texting is many times worse than driving drunk. Action is warranted.
Under the senators' proposal, states would be given two years to outlaw texting and e-mailing by drivers in moving vehicles or they would lose 25 percent of their federal highway money. In other words, the federal government doesn't have direct authority to regulate traffic but it can put conditions on the money it gives states. This same strategy was used to force states to pass seatbelt laws and to raise the drinking age to 21.
The North Dakota Legislature did consider a bill to outlaw texting but came up with anemic reasoning to kill the proposal. They argued that there were already so many other distractions for drivers, e.g. eating lunch, reading newspapers and dialing the radio, that outlawing another hazard wasn't important. Fourteen other states thought otherwise and passed laws to outlaw the practice.
A forgotten factor in arguments over states' rights is public opinion. After all, the reserved powers in the 10th Amendment were for exercise by the states "or the people." Without much consideration for sophisticated arguments over the 10th Amendment and federalism, reasonable people will conclude that outlawing texting is a no-brainer and should be done by somebody somewhere. There will be public support for federal action, states' rights arguments not withstanding.
After 218 years of experience, states should recognize that along with states' rights comes states' responsibilities and, when those responsibilities are not assumed, states lose. People want solutions. In the case of texting while driving, the evidence is so persuasive that states will be hard-pressed to invoke the 10th Amendment to defend their refusal to act.