Don’t Slander States’ Rights

April 2nd, 2010 at 10:55 am | 15 Comments |

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In an excellent article in online 0″ target=”_blank”>The New Republic, Sean Wilentz takes to task those who wish to resurrect the pernicious doctrine of “nullification” to thumb their nose at the federal government on health care reform.  Unfortunately, Wilentz conflates nullification with the idea of “states’ rights” in general:

Although not currently concerned with racial supremacy, the consequence of their doctrine would uphold an interpretation of the constitutional division of powers that would permit the majority of any state to reinstate racial segregation and inequality up to the point of enslavement, if it so chose.

Is opposition to health care reform at the state level leading to a resurrection of slavery? Really?

That much has been done in the last 100 years to undermine the 10th Amendment is not debatable. That the cause for this was considered just is equally true.

At the same time, in our zeal to improve the lives of American citizens, we have allowed the very concept of federalism to atrophy. Even debating the idea that the 10th Amendment can be redefined so that it can be made relevant in a 21st century industrialized democracy is seen as an exercise in futility.

Clearly, there are many functions of government that do not lend themselves to the concept of federalism. We can’t have 50 different air quality or water quality standards. Nor does the prospect of 50 OSHA’s or MSHA’s, or FDA’s, or any number of federal agencies responsible for our health and safety make any sense.

But is it possible to take a hard look at these agencies and discover a few responsibilities they currently enjoy that might be better performed by states? If it can be done without gutting them, why not try? Shouldn’t states have a lot more to say about how federal lands are used within their boundaries? Those lands are enormously valuable in many respects and yet the states have little say in the leasing and development schemes of the federal government. And it is long past time we take a very hard look at the Department of Education (with a $63 billion budget) and find a way to turn that department into an adjunct to local efforts at teaching our children rather than as a repository for bureaucrats to carve out their petty empires. With educational achievement at historic lows, it is evident that at least some of that money might be better given to states and local school districts to use as they see fit.

The concept of federalism today is a far cry from what the Founders envisioned. But that’s how it should be, and it’s perfectly in keeping with what those men imagined for the future. They may have written the Constitution for a small coastal republic of 7 million citizens, but were prescient enough to give their creation the revolutionary ability to change with a changing country.

Now that we are a continental nation of 300 million – as diverse and vibrant a society that has ever existed -it is time to re-examine and reinvigorate the founding notion that power shared and dispersed among many is the bulwark against which no force can threaten our liberties. Resurrecting the ghosts of the past to discredit this notion should be met with the contempt it deserves.

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15 Comments so far ↓

  • Right Wing Nut House » DON’T SLANDER STATES’ RIGHTS

    [...] This article originally appears at Frum Forum. [...]

  • balconesfault

    Would federally-mandated tort reform, and federal legislation requiring states to accept the sale of health insurance across state lines (which would functionally gut the ability of individual states to regulate those insurance products), represent an attack on the principle of Federalism?

    Shouldn’t states have a lot more to say about how federal lands are used within their boundaries?

    What do you mean by “a lot more say”? Under FLPMA the Federal Government must develop plans as to how those lands are used, and during that process States certainly have significant input. However, they are Federal Lands, and were protected in the first place because of a multitude of poor short term decisions made by states and the private sector a century ago, and the Federal Government is properly charged with the final decision on their use.

  • sinz54

    balconesfault: federal legislation requiring states to accept the sale of health insurance across state lines (which would functionally gut the ability of individual states to regulate those insurance products), represent an attack on the principle of Federalism?
    Yes, and that’s why the voters of the individual states should petition their own state legislatures to repeal or modify state laws that restrict the interstate sale of insurance.

    For Federalism to work in practice, the voters have to be just as concerned about their state governments as they are about who sits in the White House. Voters have to do more than just vote for President every 4 years.

    Otherwise, the failings of various state governments to manage their economies, provide health care, and provide basic services, are used as excuses by politicians in Washington DC to take over more and more of those functions at a national level.

  • sinz54

    Public school education is an interesting problem for the principle of Federalism.

    I agree that the Federal Government shouldn’t be micromanaging public schools. We built the mightiest, most advanced nation on earth without a Cabinet Department of Education.

    But in this country, most public schools are funded through local property taxes. That means that poor kids in poor districts will usually receive the worst quality education–exactly the opposite of the opportunities you want those poor kids to have.

    For “Federalism” to be meaningful and not just a buzzword, the GOP platform has to have, side by side, a list of functions it believes the Federal Government should not do–and alongside it, a list of functions that Republican candidates running for the state legislatures will promise to take over at the state level. In the following manner:

    “In education, the Republican Party believes that the Federal Government should no longer micro-manage education. Instead, we will elect legislators to the legislatures of the various states who will supplement or entirely replace the use of property taxes for public education with general state revenues. We will raise consumption taxes on cigarettes, junk foods, and alcohol, and reduce property taxes. This will ensure equality of opportunity for all children in all districts in that state.”

  • mlloyd

    I see your point, but unfortunately, there are no principled federalists among our commentators or elected officials. John Ashcroft talked up federalism to Southern Partisan magazine… then as AG ran roughshod over states’ rights. No one believes in states’ rights, people believe in policy outcomes. Like arguing that something is unconstitutional, arguing that something violates the principle of federalism is, in our public debate, a way of saying “I don’t like it.”

    And honestly, there has never been an open reckoning on the right about the use of states’ rights arguments to justify segregation. It will be near-impossible to restore that phrase, and concept, to good graces without such an accounting.

  • balconesfault

    No one believes in states’ rights, people believe in policy outcomes.

    LOL – this mirrors the Conservative rejection of “judicial activism”, until the next time Roberts and Scalia see legislation or precedent that their ideology concludes needs to be overturned.

  • dendup

    “ghosts of the past” “bulwark against which no force can threaten our liberties”

    So this buwark protected the liberties of the ghosts of the past?

    At best state’s rights is a neutral tool that depends of the intentions of the user to determine its good or ill effect. Clearly the existence of the ghosts of the past show it can and has been used for evil.

  • apetra

    States specifically gave up the right to restrain interstate commerce in the Constitution. That is not an added, or judicially invented, constitutional clause.

    States can only regulate insurance and prohibit purchase across state lines because the federal government ceded that authority back to the States.

  • Odysseus

    For those here who believe that the Commerce Clause trumps the 10th Amendment or that the 10th is a mere anachronism, what purpose do states serve? Are they simply middlemen for the federal government? Have states themselves become anachronisms? If it is truly believed that some states under a reinvigorated 10th Amendment or with severe limitations on the application of the Commerce Clause will use the opportunity to reinstate the worst of our past, then shouldn’t these states be identifiable and be made subject to something akin to Reconstruction? What is the argument against doing this? What is the argument for having states at all? It should amount to more than mere obeisance to the past.

  • jakester

    yes we need more federalism, government works best when it is closer to home

  • Telly Davidson

    mlloyd sez: “I see your point, but unfortunately, there are no principled federalists among our commentators or elected officials. John Ashcroft talked up federalism to Southern Partisan magazine… then as AG ran roughshod over states’ rights. No one believes in states’ rights, people believe in policy outcomes. ”

    You nailed it, Mlloyd — this “mishugas” started when Bill Bennett took over the Dept of Education in the Reagan era. Reagan’s 1979-80 goal had been to downsize the thing as an unneccessary payoff to teachers/public employee unions, but Bennett decided — most state superintendants and big-state school boards (let alone colleges) are liberal! Turning power back to the states is just giving our “enemies” an advantage! Whyn’t use the muscle of Big Government to try to force a “conservative” agenda…. a decade later, hello “No Child Left Behind”.

    Also, I remember reading a George Will spot where he drank a toast to Reagan’s decision to obliterate Nixon’s “revenue sharing” program (which Ford and Carter enthusiastically continued), of giving blank-check federal block grants to schools, libraries, police to apply to whatever THEY felt was the most pressing problem in their budgets. This was the very essence of states’ rights — but Will said it just “weakened spending restraints at the local level” — and gave the Maxine Waters/Johnnie Cochran/Willie Brown local pols more power.

  • sinz54

    mlloyd: And honestly, there has never been an open reckoning on the right about the use of states’ rights arguments to justify segregation.
    First of all, it’s only the hard-core right that has dredged up that phrase. Federalism isn’t about the right of a state to nullify a law (that should be OFF the table,as far as I’m concerned); but about the legal sharing of power between the Federal government and the states, under a policy acceptable to both.

    But if you want to discuss states’s rights:

    There are three sets of rights at stake: The right of the Federal Government to manage interstate commerce; the rights of the states; and the rights of the individual person.

    The Fourteenth Amendment, and subsequent Supreme Court case law, established that a state does not have the right to violate the individual rights of a citizen. For example, a state cannot trample on your freedom of speech or freedom of religion. Then in Brown v. Board of Education, the Supreme Court ruled that segregation was indeed a violation of the rights of black citizens to be treated equally before the law.

    But when we’re talking about the Cabinet-level Dept. of Education, no individual rights or civil liberties come into play.

    The problem with the GOP bandying about the principle of Federalism, is that the other shoe never drops. They talk about shrinking the Federal Government, without any concern as to whether states have the will and the wherewithal to pick up the additional responsibilities.

  • sinz54

    A few years ago,
    there was an interesting case of nullification on the part of the LEFT:

    In California, the state legislature decriminalized medical marijuana. Despite this, the Bush Administration declared that as far as they were concerned, it was still illegal and they would continue to enforce the drug laws in California as elsewhere.

    When it comes to things like drugs and the treatment of illegal aliens, initiatives at the level of the states can contradict Federal law.

  • Rabiner

    SinZ54:
    “In California, the state legislature decriminalized medical marijuana. Despite this, the Bush Administration declared that as far as they were concerned, it was still illegal and they would continue to enforce the drug laws in California as elsewhere.

    When it comes to things like drugs and the treatment of illegal aliens, initiatives at the level of the states can contradict Federal law.”

    While California decriminalized Marijuana and in November we will be voting on legalizing it the Federal drug laws supersede anything we do. The Supreme Court ruled that even if the Marijuana is grown in California and never leaves California it is still effecting interstate commerce and is thus under federal jurisdiction.

    Sinz54:
    “In education, the Republican Party believes that the Federal Government should no longer micro-manage education. Instead, we will elect legislators to the legislatures of the various states who will supplement or entirely replace the use of property taxes for public education with general state revenues. We will raise consumption taxes on cigarettes, junk foods, and alcohol, and reduce property taxes. This will ensure equality of opportunity for all children in all districts in that state.”

    I just wanted to clarify that your ‘solution’ is to reduce property taxes (a progressive tax) with consumption taxes (regressive tax) to pay for schools. This is a terrible idea and it is silly to lower progressive taxes only to increase regressive taxes since it harms the poor the most (that segment of the population you wanted to help by funding education not from property taxes). Although I will say that in California since Prop 13 passed in 1978 localities can’t raise revenues through property taxes and thus have resorted to increased sales taxes and consumption taxes that are very regressive in nature.

  • InfiniteThoughts

    There is a very valid point on the rights of the states versus federal involvment in affairs that are in the grey area.

    However, as the article states how federal govt should rule on water quality & air quality and not leave it to states, i think the laws on healthcare should also be consolidated at the federal level with states not mandating additional laws. This will ensure that national exchanges to buy healthcare from ANY state turns into reality. Also, this can ensure a more efficient healthcare system and thereby reducing the level of intervention of politics & GOVERNMENT in healthcare.

    But what i ask for is too much to give, both by liberals as well as from the conservatives and hence i shall keep wishing for it