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.