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Saturday, November 5, 2005
 Understanding the Issue of State's Rights

Topic: Semi-random Thoughts
With the nomination of judge Sam Alito to the Supreme Court by George Bush much is being discussed about his "judicial philosophy". In these discussions the issue of State's Rights often comes up with commentators stating that his position on State's Rights is one of the aspects that defines judge Alito as "a conservative".

"State's Rights" is actually neither a "conservative" nor a "liberal" issue. In all of the comments I have heard on the State's Rights issue from sources ranging from NPR to the New York Times to MSNBC to FOX News, none of the commentators, including supposed Constitutional experts, seemed to have any understanding of why the issue of "State's Rights" has been interpreted as a "conservative" vs "liberal" issue. In fact, several went on to give explanations of why interpreting the Constitution in such a way as to reserve rights to the States is "conservative", while all of them failed to address any of the real history of the issue of State's Rights.

Having said that, I will now explain why the issue of "State's Rights" as been interpreted as a "conservative" vs "liberal" issue.

First it is important to note that there is nothing inherently "progressive" or "conservative" about at which level laws are made, State or Federal. The laws themselves are what are either progressive or conservative.

The reason why conservatives have generally advocated for State Sovereignty is that the Federal government has generally been more progressive than certain State governments, especially in the South. There are several different major times when these issues were very significant.

When the United States Constitution was written there were major conflicts between the interests of the State governments and the Framers of the Constitution. The Framers of the Federal Constitution were liberal progressives who spent a lot of time and effort making sure that there was division of powers written into the Federal Constitution and that there were many protections for individual rights written into the Constitution.

The Framers, especially James Madison, viewed many of the State governments as oppressive. While the Framers took great care to dilute power at the Federal level, many of the State constitutions were written to concentrate power. Many of the States were like small kingdoms.
That most of us carried into the Convention a profound impression, produced by the experienced inadequacy of the old Confederation, and by the monitory examples of all similar ones, ancient and modern, as to the necessity of binding the States together by a strong Constitution, is certain. The necessity of such a Constitution was enforced by the gross and disreputable inequalities which had been prominent in the internal administrations of most of the States.
- James Madison from letter to John G. Jackson, Dec. 27, 1821

Besides, some States have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but absolutely improper; instead of securing some in the full extent which republican principles would require, they limit them too much to agree with the common ideas of liberty.

...

I wish also, in revising the constitution, we may throw into that section, which interdict the abuse of certain powers in the State Legislatures, some other provisions of equal, if not greater importance than those already made. The words, "No State shall pass any bill of attainder, ex post facto law," &c. were wise and proper restrictions in the constitution. I think there is more danger of those powers being abused by the State Governments than by the Government of the United States. The same may be said of other powers which they possess, if not controlled by the general principle, that laws are unconstitutional which infringe the rights of the community. I should therefore wish to extend this interdiction, and add, as I have stated in the 5th resolution, that no State shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases; because it is proper that every Government should be disarmed of powers which trench upon those particular rights. I know, in some of the State constitutions, the power of the Government is controlled by such a declaration; but others are not. I cannot see any reason against obtaining even a double security on those points; and nothing can give a more sincere proof of the attachment of those who opposed this constitution to these great and important rights, than to see them join in obtaining the security I have now proposed; because it must be admitted, on all hands, that the State Governments are as liable to attack the invaluable privileges as the General Government is, and therefore ought to be as cautiously guarded against.
- James Madison, Introduction of the Bill of Rights (1789)

The colonies were ruled, after all, mainly by governors that were appointed by the King of England, at least at some point in their history. The State rules were often very protective of their powers and it took great work to get the States to cooperate and allow things like free trade between States etc. Many of the States wanted the ability to use tariffs on interstate trade as a way to fill the State coffers, etc.

Furthermore, there was the issue of slavery. Most of the Federal Framers wanted to abolish slavery, but many States made it known that they would not give up slavery in order to enter the union. Basically, slavery was a deal breaker issue for the Southern States. In order to get around this issue the Framers decided to adopt this concept of how State's Rights were originally interpreted.

The Framers didn't want slavery and they didn't want the Federal Constitution to be supportive of slavery, yet they knew that they also had to allow it in order to make the new government work. The solution was to leave slavery issues mostly out of the Federal Constitution and state that any rights not granted in the Federal Constitution defaulted to the States. This put the "responsibility" for slavery on the shoulders of the States.

The Framers wanted the Bill of Rights to overrule State law, such that the States would not be able to pass any laws that contradicted the Federal Constitution, and we also know that the Framers wanted the Federal government to have more power over the States than what it had because they saw the Federal Constitution as more protective of liberty than many of the State constitutions, some of which they considered to be dictatorial in nature.

Nevertheless, the slavery issue had them in a bind, so they had to allow more States rights than what they thought prudent in order to absolve the Federal Constitution from responsibility for slavery. The way States rights were interpreted was like a nod and a wink to the States to say "we don't like slavery or want to support it, but we know that we can't stop you from having it, so as long as the Federal Constitution doesn't say that you can't, then you can assume that you can."

So, from that point, the proponents of slavery were the major supporters of "State Sovereignty".

The next major conflict between State's Rights and the Federal government again relates to slavery. The Civil War. The Southern States said that they were succeeding because their State Sovereignty was being usurped by the Federal Government.

After the Civil War the 14th Amendment was passed, much to the chagrin of the Southern States. The 14th Amendment did what James Madison wanted done originally, extended the power of the Federal Constitution over the States.

The actions of the Federal government were seen negatively in the South, where the Federal government was the one that forced Reconstruction policy on the South that the Southern States didn't want, like allowing blacks to vote and own property, etc. Again the Southern conservatives complained about "State's Rights".

This continued on.

In the 1940s anti-lynching laws were passed by the Federal government and "forced" onto the States.

In the 1950s the Federal government forced the Southern States to integrate their schools and other public institutions, again usurping "State's Rights".

In the 1960s the Federal government put an end to the Jim Crow laws in the South with Federal legislation.

It is from these acts that the conservatives have come to defend "State's Rights". On all of the really major issues in American history, the Southern conservative States have tried to hide behind "State's Rights" in order to defend their own abuse of State power to oppress minorities and regulate society. The Founding Fathers detested this abuse of State power, and its a major reason why the Federal Constitution was written in the first place, instead of just keeping the Articles of Confederation.

The liberal Founders wanted to ensure that they created a secure Constitution that would guarantee rights to people and protect freedom, because they knew that many of the State constitutions did not protect freedom, indeed they abused power.

Now, whether a policy is set by the State or the Federal government is not a "liberal" or "conservative" issue. Who sets the policy has no impact on the effect of the policy, other than making it regional or national. The policy itself is what is either liberal or conservative. It is just the case that in the history of the United States the Southern conservatives have often found themselves at odds with the Federal government, and thus they have been supporters of "State's Rights", because that served their cause at the time (or rather it failed to serve their causes because they lost on every count).

If the policy that the Federal government seeks to enact is conservative, however, then the conservatives will want Federal law to trump State law. There is every reason to believe that if a bill were signed into law that made abortion illegal nationally that the far-right would support Federal law overruling State law such that States could not even make it legal if they wanted to, just like States cannot make cocaine use legal even if they want to.

So, I find all of this talk of how "State Sovereignty" is a conservative characteristic quite absurd. There is nothing inherently conservative or liberal about State Sovereignty. If a State passed laws that made gay marriage legal, allowed public nudity, made recreational drugs legal, and required that all public officials be atheists, and then the legislators argued in favor of State Sovereignty they wouldn't be considered a conservative just because they were favoring State's Rights.

Likewise, the fact that conservatives have been the ones trying to stop progress by hiding behind State's Rights doesn't actually make State Sovereignty a conservative issue.


Posted by rationalrevolution.net at 7:05 AM EST | Post Comment | View Comments (9) | Permalink
Updated: Saturday, November 5, 2005 9:37 AM EST

Saturday, December 3, 2005 - 3:41 PM EST

Name: monkeyrat

my, what an interesting interpretation of history. how is it you you leave out madison, hamilton, and the rest of the federalists were initially against the bill of rights, and it was only through its adoption the anti-federalists were going to sign on to the constitution as whole?

Tuesday, December 6, 2005 - 7:15 AM EST

Name: Mike J

monkeyrat,
Your mistake, but understandable how you might make it.
This is not an "interpretation."
It is another in a pseudo-researched series promoting extreme limitations on personal freedom and the rewards one receives for personal effort and responsibility.
This blog is a soapbox for this feller who would have Central Planning choreograph all aspects of our personal and financial lives.
I suggest you check in regularly, as it's kinda funny stuff, if only the stakes weren't so high.
Later,
Mike J

Tuesday, December 6, 2005 - 10:28 PM EST

Name: rationalrevolution.net
Home Page: http://www.rationalrevolution.net

Mike J,

#1) I have not advocated any kind of "central planning" anywhere on this web site.
#2) This post doesn't promote anything. Not one single idea is promoted by this post, it only explains why the State's Rights issue has been incorrectly interpreted as an element of "conservative" ideology. The point of the post was to show that the level of government at which laws are effective has no bearing on whether those laws are "liberal" or "conservative".

When "conservatives" are in power at the federal level, they also seek to use federal power to overrule the States.

The post speaks for itself, I don't need o reiterate its points.

Tuesday, December 6, 2005 - 10:35 PM EST

Name: rationalrevolution.net
Home Page: http://www.rationalrevolution.net

Hi Monketrat, thank you for the feedback.

Madison was the one who drafted the Bill of Rights, whom I quoted within my post. Hamilton was not opposed to the Bill of Rights because he didn't want people to have rights, he was opposed to it because he was afraid that a bill of rights could be interpreted narrowly, thus having the effect of restricting rights to only those things mentioned in the Bill of Rights.

In the end I think that Hamilton was both right and wrong. A bill of rights was needed, because people have tried many times to usurp our rights anyway, but yes it has also resulted in a narrow interpretation of rights as well in some cases, abortion being a prime example.

Abortion was not legal for years because it was not specified in the Bill of Rights, and it will forever remain threatened as a right because it is not present there.

Is this because we have a bill of rights that provides fodder for a narrow interpretation, or does this mean that we simply need to enumerate it as a right?

Hamilton was in agreement on the main point, however, that many of the States concentrated their power too strongly and abused their power to restrict the rights of citizens.

Hamilton was one of the main opponents of slavery.

There were many different anti-Federalists. People opposed the Federalists for a wide range of reasons - some opponents were to "the right" of the Federalists and some were to "the left".

Wednesday, December 7, 2005 - 7:43 AM EST

Name: Mike J

"#1) I have not advocated any kind of "central planning" anywhere on this web site."
So, you have come over to my side regarding our amoral and destructive Social(as in Centrally Planned) Security System?
How nice! Welcome aboard!
I only wish you had acknowledged so earlier.

"#2) This post doesn't promote anything. Not one single idea is promoted by this post..."
Hogwash! Read your own work:
"Likewise, the fact that conservatives have been the ones trying to stop progress by hiding behind State's Rights..."

That obvious assumption of the nature and meaning of, and need for "progress" is tacit promotion of some attitude, idea, precept, tenet, superstitution, etc. It certainly is NOT a neutral phrase to precede the very reasonable predicate of the sentence, "...doesn't actually make State Sovereignty a conservative issue."
Or is it not "promotion" if the writer assumes all readers are members of the same (his)club?

Mike J

Wednesday, December 7, 2005 - 7:59 PM EST

Name: rationalrevolution.net
Home Page: http://www.rationalrevolution.net

Yes Mike, I consider ending slavery and the integration and acceptance of minorities into society "progress". Yes, it's part of an evil "liberal agenda" to end slavery and stop the killing, abuse, undermining, theft, and exploitation, of innocent people based on their race.

Yes, this is a "horrible", "diabolical" "scheme".

The Social Security system has nothing to do with central planning.

There are certain facts of economics Mike, such as the fact that pooling resources reduces risk and operating costs.

The cost of administering the Social Security system is much lower than the cost of administering many different private insurance programs or investment programs. It's also lower than if every State had their own program.

It's just a simple of fact of life, it's called economies of scale, and the capitalist system is built on it, which is why there is so much centralization in capitalist systems.

Why don't you go complain to Wal-Mart about running the single largest distributor of goods in America out of Bentonville Arkansas. They even manage the affairs of their international stores from Arkansas.

I mean come on...

Thursday, December 8, 2005 - 6:35 AM EST

Name: Mike J

"The Social Security system has nothing to do with central planning.

There are certain facts of economics Mike, such as the fact that pooling resources reduces risk and operating costs."

1. If you and I go to State Farm Insurance and insure our cars or homes, that is pooling of resources. When Government seizes and misdirects funds, and destroys the capital of the poor and near-poor, with no regard for the time value of money, that is malfeasance and amoral thuggery. I could put my 12.4% Social Security loss into a low-yield XYZ annuity and be farther ahead, if I lived in a free society. I do not begrudge a firm their profit.
And other than making funds disappear, SS rewards high-risk individual economic behavior and penalizes low-risk individual economic behavior.
That is a perversion of risk-sharing, but it does serve to buy mass votes for our bipartisan Royalty.

2. Seizing income at the Federal level to partially spend and partially redistribute via a plan hatched at the Federal level is most certainly "Central" planning. You note that the various States are not welcome parties to the debacle.
Individuals are even less respected. It isn't voluntary to make the contributions. Failure to stand and deliver can earn jail time.
And federal bureaucrats tell me when, or IF, I can access my own money, at what age, and in what amounts.
How much more "Central" can it get?

3. Risk and scale? Tell where the SS surplus is. The scale of Social Security is worth noting, as it is unquestionably a factor in making SS one of the greatest Ponzi schemes in history. The scale of seizure produces a mammoth surplus which our Democratic/Republican Royalty, empowered by the SS charter itself, has pissed away in typical bipartisan fashion on wars, pork, graft, welfare, i.e., their normal mutual economic corruption.
Now the surplus is not available, due to the basic definition of the scam which requires surplus to go to general funds. SS dupes and supporters will look for taxpayers, specifically the "rich," to make up the loss through higher seizures and lower benefits.

4. Don't ask me why, but, overwhelmingly, in our Democratic Republic, people have voted with their feet and chosen WalMart. The operation is a dismal experience. But that is their right to choose, like smoking or drinking to excess, despite the negative consequences.
I don't like the choice, don't use the stores, don't work there, all through choice. I believe it is my sacred right to choose. Many Americans fear and hate that right, having been trained to look for a Central Power to make choices for them. I abhor that development, as it further strengthens powermongers.
Protesting WalMart is like putting up a sign for your friends and neighbors to read: "You are a dumb ass." It is our friends, neighbors, and families that provide the economic engine that drives WalMart. It seems that few WalMart opponents are able to connect the dots that far, or few have the nerve to be that forward with the truth.

We are worlds apart on the benefits/detriments of economic chaos created by federal intrusion into personal finance, but in no way do I support the subjugation of minorities. ( Well, you can throw NAMBLA members under the train...LOL)
Respect for the rights of ALL is one of the reasons I am so adamant on Social Security, as the Royalty uses SS so effectively while diminishing the low wage earner's capacity for growth. Meanwhile the royalty portrays the upper middle class as "rich," and smears the "rich" as the basic problem, all to divert attention from the scam.

"I mean come on..." Jeeze, you stole my thought...LOL

Mike J

Tuesday, March 1, 2011 - 12:40 AM EST

Name: "Riptico, T"

A response to Mike is long overdue. The Government, dear sir, is The People, and when the people vote in wide margins to direct funds via tax_A$ to program_B$, then there is no misdirection of funds anywhere but the halls of your own opinion. 

 So already you're not doing so good. Worse is that saying the Government has no regard for the poor or near poor because they happen to have a tax burden and therefore a stake in the system, is well, dumb. Who was the poorest group of Americans in existence before social security? The elderly poor. Who has benefited the most from social security, that tyrannical misdirections of funds, if you will? Why, it was the elderly poor. 

 

The poor in general pay almost no income tax, and are recipients of federal aid. The Government seems to be working in favor of the poor to me, when it is allowed to work at all that is. You of course can do whatever you want with your extra income but paying taxes is a fact of fucking life. People voting on what to spend tax money on and what new taxes are too be levied is as American as apple pie - at least, that is what America was founded upon.

 

Your incentive argument at the end of point one is also ridiculous.  Does having insurance make people more reckless? I don't think it does. Social insurance, you know, the social security program, doesn't promote wild orgies and snowboading parties on vodka glaciers for the elderly.

 

The States and the people in the are represented on the Federal level, the laws are merely the outcomes of those interactions. you are essentially complaining, using pseudo-folk language, that the government is functioning at all. Point 2 - worthless.

As to 3, well corruption is risk in all human endeavors. It is not enough to not try and help the poor or secure the middle class. That the Democratic party is corrupt has nothing to do with the aims of helping the poor. And in the event that the rich are benefiting from gains not rightfully earned, well that's what taxation is for sir, and I am proud of it.

 

Point 4: are you kidding? People choose to go to wal mart for all sorts of reasons that have nothing to do with wanting to go to wal mart. If you don't have much money, then going to wal mart is pretty much a necessity for many items, having nothing to do with the preferences of the consumer. Smoking and drinking are the same thing, tobacco is highly addictive and choice is pretty much out of the matter at that point. Drinking can be the same way, as Big Beer does its best to put up barriers to entry for smaller competitors - their beer is cheaper, and if you don't have much money and aren't getting any from the government, then that is the beer you have to buy your preferences be damned.

 

I'm not really sure what your problem is, but you seem to have a problem with the People having any power to decide things with their rightfully produced earnings, using the language of the People the whole time to veil the attack. But it is transparent with any critical thinking, shame sir, sir. 

 

Saturday, April 14, 2012 - 10:07 AM EDT

Name: "Social insurance"
Home Page: http://tribelife.com.au/

I agree with some of your statement, but I have to tell you about my opinion relating on the government ways, especially to social insurance. I have observed based on the news on the time wherein President Bosh was the head is that the person statute is the basis on whether that particular person is qualified to enroll in the said system.

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