Category Archives: Federalism

CounterPoint: Yes, Virginia, States Really Do Have Rights

This is a segment in The Liberty Papers’ continuing “Point/Counterpoint” series. This post is the rebuttal to my co-contributor Michael Powell’s post here, making the point that “states’ rights” are an antiquated and poisoned concept.

When I saw Michael’s post this morning, I was a little bit surprised. I was expecting him to make the argument that States’ Rights don’t exist. In fact, I was waiting for one specific statement that I’ve heard from those who attack the notion of states’ rights many times over. Thankfully, two comments in, commenter John222 made the point:

States don’t have rights, individuals do. Better would be to say, “The interest of the State in protecting the rights of it’s citizens”.

This is a common statement among libertarians, and although I’ve probably used it in the past, there have been points where I’ve become troubled by it.

Michael made some very important points in his post, and these are points that must be answered. However, to begin, we must have an understanding of the origin, the nature, and the limitations of states’ rights. Only by setting this groundwork may I refute Michael. But first, a caveat. In order to make the points I must make, I must work with two critical assumptions:

  1. Natural rights of individuals exist.
  2. Constitutional democratic government is legitimate.

For those that have read my previous work, it should be understood that I believe neither of these assumptions. I am a philosophical anarchist, and while I can construct a non-theistic basis for natural rights theory, I view them as artificial constructs, not incontrovertible truths. However, we must work within the framework we have, and thus I will concede these points for the purposes of this post. For the purposes of discussion and comments, please try to take these two premises at true, and if you have a problem with the argument flowing from those premises, attack the argument.

Let’s start at the beginning:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Here’s the base. Natural rights are the area where we say to government: “Over this line you may not tread.”

Individuals have certain natural rights, and they empower governments to help them protect these rights. The statement that “States don’t have rights, only individuals do” does not account for what we consider the social contract. Individuals enter into an implicit contract with their government, offering to entrust some of the rights they hold in the “state of nature” to their government in order for cooperation and protection of those rights. Those governments do not gain *new* rights as governments, but they inherit the rights of those they are designed to protect.

Natural rights theory does not hold that individuals give up their rights to the government, the rights are retained. It is best to be understood as a legal contract — individuals freely, by exercise of their rights, create their government. They voluntarily empower their society — their government — to protect their rights. A government that reaches beyond the legitimate power of protection of those rights, as Jefferson himself states, deserves no longer our assent or our support. If said government treads beyond the lines defined above, that government has violated the social contract.

“Government”, of course, is not a singular entity. Governments are hierarchical, competitive, and numerous. In many cases, we are under the jurisdiction of several governments — entities within entities. In many cases, the governments we live under must make compacts with other governments outside our territory — treaties — in order to help complete the tasks which we have empowered them. Each of these agreements are contracts or compacts. Rights of the citizens of the government are not abridged, they are retained — at least if the government empowered to act on behalf of its inhabitants are legitimate.

How, then, do we describe the relationships between these levels of government or between competing governments? How do we define the lines over which they may not tread? Let’s take one example: borders. What are borders, other than the territorial lines defining the government which protects the rights of its inhabitants? What do we call a government’s relation to its borders? Territorial rights! Now, of course, these rights are not that of “the government”, but they are the territorial rights of which the individuals supporting that government have ceded to their government to protect.

Likewise, how do we define our US Government’s relationship to the United Nations and the nations of the world? We use the term sovereignty: the inviolability of our government to the others of the world — the statement that our government has “rights”, i.e. lines over which those other governments may not tread.

The nature of the United States Government and its relationship to its constituent States is a tricky one, historically. The United States Constitution — our governing document — is a compact between states, not a contract directly between the federal government and the people. Historically, the people of the several States entrusted their governments — the entities to which they had entrusted their rights for protection — to form a federal republic. One may support the claim — at least until 1865 — that the States retained sovereignty, and that they had contractual RIGHTS as constituent members of that federation.

These rights are not inherent to them, as States. These rights are the rights entrusted to them by their inhabitants, and the rights they are protecting are not the rights of the State as State, but a collective bargaining arrangement to protect the rights of their inhabitants. Regardless of how you define this, though, the rights exercised are contractual rights exercised by the States on behalf of their inhabitants. The States drew a line, and told the United States Government “over this line you may not cross.” For the United States Government to cross that line would allow the State, if it so chose, to exercise its sovereignty and break the contract — secede.

These rights are not without limit, though. We previously stated that government is created by individuals in order to secure their natural rights. But those rights are retained. A government which does not secure those rights — a government in fact which violates them, is not a legitimate government at all and may be disbanded. Likewise, federal governments or supra-national bodies do not have super-natural powers — they are still only as legitimate as the rights of their constituent states (and thus the rights of their constituent inhabitants). If the United States Government attempts to violate the sovereignty of the states in order to violate the natural rights of its constituent inhabitants, it is just as illegitimate as if the individual state takes that action…

…which finally brings me back to Michael’s post!

Specifically, this country is, and always has been, a work in progress. I said it was illegitimate for a federal government to violate the sovereignty of its constituent States and if a federal government were to do so, it would justify secession. However, while Michael says he wouldn’t cry crocodile tears if the South had been allowed to secede, the South’s secession would not have been justified under States’ Rights theory. Why? Because slavery — a State deliberately violating the natural rights of its inhabitants — is not a legitimate government, and thus the Southern States did not have true sovereignty. A government which violates the natural rights of its inhabitants as a matter of design cannot be granted the authority to act on behalf of its citizens.

The Fourteenth Amendment, in the wake of the Civil War, finally codified this statement. Prior to this, the United States Constitution did not have a method for the Federal government to impede the States from abridging the natural rights of its citizens. (Of course, one can infer from this that the Civil War was illegal, but the destruction of slavery in the South can hardly be described as immoral). It should be stated that Michael’s quote from George Wallace was not truly a defense of States Rights. Those rights of States to discriminate by law against their citizens had long been removed via the Fourteenth Amendment. If he truly believed that the right of the State was inviolable (I doubt this to be the case — I personally think it likely that “States’ Rights”, like patriotism, just happened to be the last refuge of a scoundrel), he was simply wrong.

Michael is correct, of course, that in the intervening century, the term “States’ Rights” was used by all manner of racists, supporters of Jim Crow, and people who are “defiant of settled law”. In American politics, terminology tends to have this problem — terms become appropriated by unsavory characters, and the terms themselves pick up unsavory connotations. We “libertarians” constantly bemoan the fact that our previous label, “liberal”, as appropriated by big-government Democrats. We had to abandon the term completely and build a new one. States’ Rights has some of that connotation, but by definition that doesn’t not negate the concept of those rights.

The term “States’ Rights” may, in fact, be coming into a renaissance. As Michael points out, individual states are fighting the Feds on medical marijuana, and California — the state where we both live — has a ballot measure in November to legalize marijuana entirely. This is in direct contravention of the Controlled Substances Act, but more importantly, this is a state protecting its citizens from the overreaches of Washington!

But again, look at the nature of government. A State government that violates the natural rights of its inhabitants is acting illegitimately. At the same time, a Federal government that violates the natural rights of its inhabitants is acting legitimately. In this case, it is right for the inhabitants of a State to pool to their rights collectively — using their States’ rights — to protect themselves from the Federal government on their behalf. Individuals often have little recourse against the Federal leviathan. They need all the help they can get.

Either way, I think that Michael did not prove, as I thought he would attempt, that states don’t have rights. He did make some valid points that the terminology of states rights had been hijacked for the last century by those State governments who wished to protect their racist fiefdoms. But he belied his own point by bringing up the fact that the very same terms are also being used by States to protect the liberty of their inhabitants from Federal overreach.

There Is No Such Thing As “State’s Rights”

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Stephen Green has an excellent column this week at Pajamas Media where he cautions his fellow libertarians to stay away from the siren call of the “state’s rights” movement:

We need to give up this notion of “states’ rights.” First of all, it’s in bad taste. The phrase used to be code for “Jim Crow.” And while I’m certain that’s not true for 99% of us, we can — and should — do better than to emulate vile racists. Secondly, however, “states’ rights” is a misnomer. It’s an impossible thing. It doesn’t exist, and shouldn’t.

Let me explain.

I remember reading once somewhere that:

All men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

In other words, individuals have rights, and governments are instituted with powers to protect those rights, and are (or ought to be) restricted from abusing them.

With me so far? Individuals have rights; governments have powers.

As Green goes on to point out, the ongoing tension between the state and Federal governments was instituted to protect individual liberty not to give some amorphous entity called a “state” rights over it’s citizens. In fact, the Constitution specifically provides the Federal Government with the power to step in when the states step over the line:

One of the tensions that exists between Washington and the states is that Washington has the duty — the power — to “guarantee to every State in this Union a Republican Form of Government.” And when a particular state government discriminates against 20, 30, 40% of its citizens, then it’s no stretch to argue that that state no longer enjoys a republican form of government. At least not how republicanism is properly understood in this country.

More importantly, we fought a war that pretty much resolved the issue of state’s rights, and afterwords passed an amendment that significantly altered the relationship between the states and the federal government. Whatever the “rights” of the states may have been before the ratification of the 14th Amendment, they were significantly cut back by it’s adoption. So it is pointless to talk about the 10th Amendment in a vacuum as if the 14th Amendment doesn’t exist.

Green closes out with the most important point:

States don’t have rights. Individuals do. It’s time we went about the business of restoring those rights, without alienating a huge constituency which suffered too long without them.

Indeed.

Contra Rand Paul: The Libertarian And Constitutional Case For The Civil Rights Act Of 1964

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Made by several of the most prominent libertarian scholars out there:

“I think Rand Paul is wrong about the Civil Rights Act,” libertarian Cato Institute scholar Brink Lindsey wrote in an e-mail. “As a general matter, people should be free to deal or not deal with others as they choose. And that means we discriminate against those we choose not to deal with. In marrying one person, we discriminate against all others. Businesses can discriminate against potential employees who don’t meet hiring qualifications, and they can discriminate against potential customers who don’t observe a dress code (no shirt, no shoes, no service). Rand Paul is appealing to the general principle of freedom of association, and that general principle is a good one.

“But it has exceptions. In particular, after three-plus centuries of slavery and another century of institutionalized, state-sponsored racism (which included state toleration of private racist violence), the exclusion of blacks from public accommodations wasn’t just a series of uncoordinated private decisions by individuals exercising their freedom of association. It was part and parcel of an overall social system of racial oppression,” Lindsey said.

“Paul’s grievous error is to ignore the larger context in which individual private decisions to exclude blacks were made. In my view, at least, truly individual, idiosyncratic discrimination ought to be legally permitted; for example, the “Soup Nazi” from Seinfeld ought to be free to deny soup to anybody no matter how crazy his reasons (they didn’t ask nicely, they mispronounced the soup, etc.). But the exclusion of blacks from public accommodations wasn’t like that — not even close.”

“To be against Title II in 1964 would be to be brain-dead to the underlying realities of how this world works,” said professor Richard Epstein of the University of Chicago. “In 1964, every major public accommodation that operated a nationwide business was in favor of being forced to admit minorities.” National chains, he explained, feared desegregating in the South without the backing of the federal government because they feared boycotts, retribution and outright violence.

The problem with the Civil Rights Act, Epstein explained, is “when you say, this is such a wonderful idea, let’s carry it over to disability. At this point, you create nightmares of the first order” in terms of problematic government bureaucracies and baseless lawsuits.

“We have to start with some historical context,” e-mailed George Mason Law professor David Bernstein, who is also a blogger at The Volokh Conspiracy. “If segregation and discrimination in the Jim Crow South was simply a matter of law, federal legislation that would have overturned Jim Crow laws would have sufficed. But, in fact, it involved the equivalent of a white supremacist cartel, enforced not just by overt government regulation like segregation laws, but also by the implicit threat of private violence and harassment of anyone who challenged the racist status quo.”

“Therefore, to break the Jim Crow cartel, there were only two options: (1) a federal law invalidating Jim Crow laws, along with a massive federal takeover of local government by the federal government to prevent violence and extralegal harassment of those who chose to integrate; or (2) a federal law banning discrimination by private parties, so that violence and harassment would generally be pointless. If, like me, you believe that it was morally essential to break the Jim Crow cartel, option 2 was the lesser of two evils. I therefore would have voted for the 1964 Civil Rights Act,” Bernstein concluded.

As I’ve been thinking about this issue since yesterday, I think this is about where I stand on this issue. I stand by what I said when this controversy first broke in that I believe, at least in the abstract, that people should be free to do business or not do business with whoever they want, for whatever reason they want. Additionally, I’m entirely uncomfortable with the tortured reasoning in Heart of Atlanta Motel v. United States and Katzenbach v. McClung, where the Commerce Clause was twisted beyond all rational meaning to justify Title II of the Act.

Instead of engaging in intellectual jujitsu, and doing several harm to concepts such as Federalism and limited government in the process, however, the Supreme Court did have another option; they could have revisited the horribly mistaken decision in The Slaughterhouse Cases:

When it was ratified in 1868, the 14th Amendment added several revolutionary new provisions to the Constitution, barring states from violating the “privileges or immunities” of citizens, or taking anyone’s life, liberty or property without “due process of law,” or depriving people of the “equal protection of the laws.” But the first time it heard a case under that amendment — in the 1873 Slaughterhouse Cases — the Supreme Court basically erased the privileges or immunities clause, dramatically limiting the way the federal government would protect people against wrongful acts by state officials.

That case began when Louisiana passed a law forbidding butchers from slaughtering cattle anywhere in New Orleans except a single, privately owned facility. The beef industry was big business in New Orleans, and the new law put hundreds of butchers out of business overnight. The butchers sued, arguing that the law violated their right to earn a living without unreasonable government interference. Judges had recognized that right as far back as 1602, when England’s highest court declared government-created monopolies illegal under the Magna Carta. The right to earn an honest living came to be recognized as one of the fundamental rights — or “privileges and immunities” — in the common law.

Yet in Slaughterhouse, the Court ruled against the butchers, holding, 5-4, that despite the new amendment’s language, federal courts would not guarantee traditional rights against interference by states. With only minor exceptions, the Court declared, those rights were “left to the State governments for security and protection.”

The decision’s ramifications were profound. In the years after the Civil War, Americans — particularly in the South — needed protection against abusive state legislatures. That was the protection the privileges or immunities clause promised, and that the Slaughterhouse decision eliminated. During the next decade, federal authorities abandoned Reconstruction efforts to protect former slaves, and black Americans were condemned to another century of segregation and oppression.

Ten years later in The Civil Rights Cases, the Supreme Court invalidated the Civil Rights Act of 1875 which would have essentially accomplished the same thing that Title II of the 1964 Act did eighty-nine years later and in the process essentially gutted another part of the 14th Amendment, the Equal Protection Clause. At that time, the sole dissenter, John Marshall Harlan made a prescient observation:

Today it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in their freedom and citizenship. At some future time, it may be that some other race will fall under the ban of race discrimination. If the constitutional amendments be enforced according to the intent with which, as I conceive, they were adopted, there cannot be, in this republic, any class of human beings in practical subjection to another class with power in the latter to dole out to the former just such privileges as they may choose to grant. The supreme law of the land has decreed that no authority shall be exercised in this country upon the basis of discrimination, in respect of civil rights, against freemen and citizens because of their race, color, or previous condition of servitude. To that decree — for the due enforcement of which, by appropriate legislation, Congress has been invested with express power — everyone must bow, whatever may have been, or whatever now are, his individual views as to the wisdom or policy either of the recent changes in the fundamental law or of the legislation which has been enacted to give them effect.

But for a different outcome in The Slaughterhouse Cases and The Civil Rights Cases, the entire system of mandated racial segregation known as Jim Crow would have been under direct legal assault at the time of it’s birth.

It’s also worth noting that Plessy v. Ferguson involved a Louisiana law that was designed to prevent the Pullman Company from offering equal seating options to blacks. That, in fact, was the entire purpose of Jim Crow laws. Even if, for example, the Woolworth’s in Greensboro, North Carolina had wanted to serve the four black college students who sat down at their lunch counter on February 1, 1960, the laws in place at the time told them that they couldn’t. Racial segregation in the South wasn’t a product of the free market, it was the product of a state imposing racial prejudices under the threat of criminal prosecution. For that reason alone, it was a violation of the 14th Amendment and the Federal Government was entirely justified in trying to bring it down.

Now, none of this means that racism didn’t exist in the South. Obviously it did, otherwise Jim Crow never would have been imposed in the first place. However, by passing these laws it’s fairly clear what that the intent of the Southern legislatures was to prevent the newly freed blacks from participating in the economic life of the South by denying them access to jobs, business opportunities, and trade while at the same time denying them access to the polls so that they wouldn’t be able to have their voice heard at the state capital. At the same time, it prevented other whites, as well as businesses from other parts of the country, from any efforts to break down the walls of segregation.

Even though the arguments that were used to justify the Constitutionality of the Act involved tortured reasoning under the Commerce Clause, the results would have been the same had the Supreme Court not so blatantly ignored the plain intent of the 14th Amendment so many years ago. So, yes, I think that Rand Paul’s criticisms of Title II are correct in some sense, and that the question of how far government should be permitted to regulate private affairs is an issue that needs to be debated more closely. That said, it’s fairly clear that the Civil Rights Act of 1964 was proper, and that it’s long past time that the Privileges and Immunities Clause was given it’s full force and effect.

Originally posted at Below The Beltway

Will The Supreme Court Strike Down ObamaCare ? Don’t Be So Quick To Say Yes

The New York Times’ long-time SCOTUS reporter Linda Greenhouse takes a look at how the current court might look at the challenges to the health care reform law:

The challengers invoke and seek to build upon the Rehnquist court’s “federalism revolution” that flowered briefly during the 1990’s. In a series of 5-to-4 rulings, the court took a view of Congressional authority that was narrower than at any time since the early New Deal. The court struck down a federal law that barred guns near schools, on the ground that possession of a gun near a school was not the type of activity that the Constitution’s Commerce Clause authorized Congress to regulate. It ruled that Congress could not require states to give their employees the protections of the federal laws against discrimination on the basis of age or disability. It ruled that the federal government couldn’t “commandeer” state officials to perform federal functions like federally mandated background checks of gun purchasers.

As Greenhouse points out, though, the Roberts Court is very, very different from the 1990s Rehnquist Court when it comes to issues regarding the power of the Federal Government:

Chief Justice John G. Roberts Jr. is not William Rehnquist, and Justice Samuel A. Alito Jr. is not Sandra Day O’Connor. John Roberts has made his career inside the Beltway ever since coming to Washington to clerk for Rehnquist. As for Sam Alito, I don’t believe that apart from a brief part-time gig as an adjunct law professor, this former federal prosecutor, Justice Department lawyer and federal judge has cashed a paycheck in his adult life that wasn’t issued by the federal government. Nothing in their backgrounds or in their jurisprudence so far indicates that they are about to sign up with either the Sagebrush Rebellion or the Tea Party.

Chief Justice Roberts appears particularly in tune with the exercise of national power. One of his handful of major dissenting opinions came in the 2007 case of Massachusetts v. Environmental Protection Agency, in which the court ordered the federal agency to regulate global warming or give a science-based explanation for its refusal to do so. That case was brought by a group of coastal states, which argued that climate change was lapping at their borders. Chief Justice Roberts objected that the states should not have been accorded standing to pursue their lawsuit. He denounced the “special solicitude” that the court’s majority showed the state plaintiffs. An early Roberts dissenting vote, just months into his first term, came in Gonzales v. Oregon, a 6-to-3 decision rejecting the United States attorney general’s effort to prevent doctors in Oregon from cooperating with that state’s assisted-suicide law.

And, as Damon Root points out, Antonin Scalia can’t be trusted on this issue either:

It’s also worth noting that conservative Justice Antonin Scalia did his part to thwart that “federalism revolution” by siding with the majority in 2005’s disastrous Gonzales v. Raich, which held that the intrastate cultivation and consumption of marijuana somehow still counted as interstate commerce, resulting in the Court striking down California’s popular medical marijuana law.

I noted last week that, as a matter of law, the odds are against the cases challenging the health care law. As Greenhouse and Root demonstrate, it also appears that we’re dealing with a Supreme Court that is not at all inclined to be sympathetic to arguments that limit the power of Congress.

Right now, I would say that the only vote that could probably be counted on to declare ObamaCare unconstitutional is Clarence Thomas’.

Thirteen States File Suit Against ObamaCare

Well, that didn’t take long:

TALLAHASSEE, Fla. — Attorneys general from 13 states sued the federal government Tuesday, claiming the landmark health care overhaul bill is unconstitutional just seven minutes after President Barack Obama signed it into law.

The lawsuit was filed in Pensacola after the Democratic president signed the bill the House passed Sunday night.

“The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying health care coverage,” the lawsuit says.

Legal experts say it has little chance of succeeding because, under the Constitution, federal laws trump state laws.

Florida Attorney General Bill McCollum is taking the lead and is joined by attorneys general from South Carolina, Nebraska, Texas, Michigan, Utah, Pennsylvania, Alabama, South Dakota, Idaho, Washington, Colorado and Louisiana. All are Republicans except James “Buddy” Caldwell of Louisiana, who is a Democrat.

Some states are considering separate lawsuits and still others may join the multistate suit.

I assume we will hear that Ken Cuccinelli has filed suit in the Eastern District of Virginia before the day is out.

As I’ve said, I am not optimistic about the ultimate outcome in these cases, but it will be interesting to watch them proceed through the system.

Here is the pleading itself:

Attorneys General suit on health care

Update: Make that fourteen states, Ken Cuccinelli has filed suit on behalf of the Commonwealth of Virginia.

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