In comments, JutGory wrote:
There is very little tolerance on the left for any notion of “states rights,” even when the issue has nothing to do with race.
It’s true that “states’ rights” has a long and shameful history as a refuge for racists, but that’s not why I dislike hearing arguments based on states’ rights. I dislike states’ rights arguments because the right-wing reverence for states’ rights is so opportunistic.
Where were state’s rights when Republicans in Congress decided to involve themselves in Terry Schiavo’s medical care? Or when Republicans try to whittle away abortion rights nationwide? Or when they try to stomp on state’s medical marijuana laws? Or when they tried to amend the Federal constitution to stomp on same-sex marriage in Massachusetts? Or when they try and set national tort laws to control how lawsuits in state courts will turn out?
Just as judicial activism is rightwingspeak for “any judge’s ruling that conservatives don’t like,” states’ rights is rightwingspeak for “any policy conservatives don’t like is unconstitutional.” There is no “principle” of states rights beyond that, because Republicans never have and never will care about states rights as anything but a tactical weapon that can be used to attack whatever policies they disagree with.
Of course, Democrats don’t care about states’ rights either, but at least they rarely put on airs pretending that states rights are a Holy principle that must Never Be Contravened unless it’s convenient.
My position on states rights versus federal rights? Here it is: I don’t care.
I do care about policy. When a state has good policy on medical marijuana, and the Feds want to crush sick people for smoking pot, then I’m on the state government’s side. When a state wants to force pregnant women to give birth against their will, and Federal law prevents that, then I’m on the Federal government’s side. But I’m not going to pretend that the exact same policy is a horrible offense to freedom when done by the Feds, but perfectly acceptable when done by a state government.
If a policy really is a boot on the neck, then you don’t need to know if the boot belongs to the state or federal government to know it sucks.
Democrats don’t care about states’ rights either, but at least they rarely put on airs pretending that states rights are a Holy principle that must Never Be Contravened
Except when it comes to same-sex marriage. Obviously Dems’ reverence for states’ rights on SSM is as much an opportunistic sham as any states’ rights arguments for the other side, but when the alternative is to have the courage to say you support SSM on the merits, then it’s mighty convenient to turn state control of marriage law into a sacrosanct principle.
Dems are in favor of state’s rights re: SSM? I thought we were like “make it law on the national level, and if necessary, do it state by state until that point can be reached.”
I think it’s possible to have a considered opinion about the best size of government unit for policies of some degree of scope, even though I don’t have one.
And, as you say, it’s hard for people to be consistent about size and scope if your focus is on getting the policies you want enforced.
Stentor @1: See, this is what happens when you don’t educate yourself about the underlying issue. The issue with SSM is not really “states’ rights”. It’s that the federal government has let the states define marriage and accepted that definition until now. The feds have never given a shit if Kansas allows a pedophile to marry the 12-year-old he knocked up, or if California recognizes divorce on the grounds of “I don’t want to be married anymore”. But suddenly, now that the goddamn queers are getting uppity, we gotta have a federal policy dictating what is and isn’t marriage.
Wasn’t it Orrin Hatch who said “States’ rights, when they’re right”? In other words, it really isn’t a principle, it’s a strategy.
But I’m not going to pretend that the exact same policy is a horrible offense to freedom when done by the Feds, but perfectly acceptable when done by a state government.
But sometimes it is. People can move from state to state much more easily than they can change countries; ergo, something which is mildly oppressive when done by a state can be very oppressive when it is done by the national government. Silly example, Texas passes a law making it legal to punch cartoonists right in the face. Obviously this law would be a lot more tolerable to you than a Federal law making it legal to punch cartoonists. Even if you lived in Texas, you could move to cartoon-friendly Oklahoma.
(Pause to giggle uncontrollably at the thought of Amp living in Oklahoma.)
More seriously, some powers of government are simply better suited to some levels of government than others. It would be crazy to have states implementing their own laws for a draft into the Army; the military is a broadly national institution (leaving the Guard units out of it for simplicity’s sake). We see with the debacles in Arizona that it’s crazy for states to set immigration law; that’s properly a Federal power. And turning it around, there are many areas of life where there is no consensus about the national government having control or input, and where the “laboratories of democracy” give us 50 chances to figure out what the right policies ought to be.
I agree that “State’s Rights” is a flawed concept, both because it was used simply as a rhetorical cover for racism and because it’s been used as a tool of convenience to oppose or support laws based on whether a person likes the policy in question. But there is at least the potential to have a principled federalism which greatly attenuates political discontent by permitting people to live with the kind of government they want for themselves. What’s wrong with having a welfare-state omni-government in Massachusetts and a laissez-faire “screw the poor” mini-government in Colorado?
Nothing at all, in my book. But such a system can only work if the Federal government is highly reluctant to expand its own areas of authority, and if the states are permitted a great deal of latitude in setting their own priorities. That reluctance itself has to flow from a reluctance on the part of the members of the polity to impose their own views on distant strangers. You liberals have to allow for the possibility that Texas is going to oppress gay people who want to marry. Us conservatives have to allow for the possibility that Oregon is going to have communist health care and tax the bejeesus out of its software millionaires.
Bus tickets are cheap.
What’s wrong with having a welfare-state omni-government in Massachusetts and a laissez-faire “screw the poor” mini-government in Colorado?
Um, the fact that poor people have to live in Colorado too, and they’re the segment of society least able to adopt your Pollyanna “just move if you don’t like it!” solution.
The same with gay people in Texas. Crushing people you’ve othered under the heel of state government just because you *can* is wrong.
Surely. But the point is not that federalism is going to bring peace & plenty & the return of Elessar, the point is that it frees people to live in places where they can have the kind of government they want, which means that both conservatives and liberals can order society to their liking at the cost of some self-sorting.
In a national system, when 51% of the people think abortion is wrong, 100% of the people lose choice. In a national system, when 51% of the people think welfare recipients are lazy bums, 100% of the people lose the social safety net. In a national system, when 51% of the people think racial discrimination is something in history books, 100% of the people lose affirmative action protection.
There are some issues where the system does have to be national to be effective, but on many things it is perfectly plausible to have variegated state governments trying different ways of doing things.
Federalism is the system that lets Massachusetts have an insurance mandate and would let Oregon have a single-payer system if they wanted one. The cost of YOUR freedom is MY freedom, and vice versa.
@Mandolin: Dem politicians, at least, seem to always respond to SSM questions by saying “it should be up to the states to decide” (and then squirming a lot of the interviewer thinks to ask “ok, so if your state was deciding on the issue, would you be in favor or against?”)
@mythago: I’m not sure if you’re accusing me or the Dem politicians I’m criticizing of not educating my/themselves. In either case, the fact that marriage was traditionally a state responsibility (within bounds — e.g. the fed crackdown on polygamy in Utah) doesn’t change whether current use of states’ rights or anti-states’-rights arguments about SSM are mostly unprincipled.
“States’ rights” is also used opportunistically in “Right to work” States, which restrict the rights of workers to organize for better compensation and safer working conditions.
I agree, but I don’t think that contradicts what I wrote. I didn’t say Democrats NEVER do that — I said they RARELY do it. SSM is an issue where elected Democrats often hide behind dubious claims of states’ rights, but that’s a comparatively rare thing for Democrats.
Also, I’d characterize the attitude of a Democratic citing “states’ rights” to avoid taking a stand on SSM as “cringing,” whereas Republicans discussing states rights often strike me as “sanctimonious.” Not that one is better than the other — both attitudes are pretty sneer-worthy — but it’s still a difference.
I think Mandolin is accurate when describing what most ordinary Democrats are hoping will happen. But you’re accurate when describing how many Democratic politicians act.
@Stentor: Got it. I was thinking Dems as in general Democrats, but I get what you meant, and I agree with you. (Also, IOW, what Amp said.)
And in reality, neither does anyone else. The only time you will ever hear people (read: politicians) talking about “states’ rights” is when they are defending an unprincipled position, i.e. when they are compromising.
Robert: Bus tickets are cheap, but starting a new life isn’t. You need first & last & deposit in many places; in all places, you need savings to live off of until you find a job. Just as importantly, people have jobs and families and loved ones that aren’t easy to leave. And, of course, many people with pre-existing conditions can’t risk moving because it means they’d lose the medical care that comes with their job.
I do agree that if oppression is significantly worse in some states than others, then state-by-state differences can provide an important safety valve. Look at the Great Migration, when millions of Black Americans moved out of the South in search of a better life. (Not that the rest of the country was or is racism free.)
But let’s not ignore the ways that national laws can create positive change, too. I don’t think we’d be a better country if Jim Crow laws had gone on decades longer in Mississippi, for example.
I agree that in theory a principled Federalism could exist. But in practice, I haven’t seen in among policy-makers.
First of all, as Elusis said, what about people who can’t leave?
Second of all, there’s the free-rider problem; in the system you describe, Colorado would end up being a net exporter of sick people who need expensive medical care, and Massachusetts would be a net importer.
I prefer a system in which there’s a national floor — “you have to do at least this much for the sick and the poor in your state” — but the means used to reach that floor (and the choice to make the state floor higher than the national floor) would be left up to individual states, plus an option to just say “screw it, let the Fed run it” if states don’t want to deal with it.
And what happens when/if the values you prefer do not have a national consensus behind them, and instead of “you have to do at least this much” you get “you cannot do more than this”?
Robert, what’s a real-life example of the national Congress setting a ceiling on what services the states are allowed to provide for their citizens? I wouldn’t be surprised if some exist, but I can’t think of any offhand.
It’s your hypothetical system, there aren’t examples because it doesn’t work that way now and hasn’t in the past.
But hypothetically – how about a Roe v. Wade reversal where states are forbidden to provide/fund abortion services? Or a DOMA-type scenario where SSM opponents win at the national level and forbid states from recognizing SSM? Or a small-government scenario where the national government prohibits states from collecting more than X% of their GDP in taxes and fees?
Robert, there are examples in our current system of the Feds setting a floor and the states being free to go above that floor. The minimum wage is the most famous example — a bunch of states have minimum wages that are higher than the Federal minimum wage. Free speech is another example; Oregon’s state constitution provides stronger protections for free speech than the first amendment does (which is why we have so many strip clubs all over the place here compared to states that restrict them more).
But of course, I’d be against all those policies you mention, were they to come about. But I don’t think they become more likely to happen because we have a national minimum wage, or because the Affordable Care Act exists (assuming it doesn’t get overturned). Those things will happen, if they do happen, because Conservatives get enough power at the national level to overcome the system’s many veto points, without regard to whether or not ACA gets overturned.
And the defense against those things happening is for states to have their own sphere of sovereignty where it doesn’t matter what the national government, whether liberal or conservative, thinks.
Is it the defense? That’s news to me. Has the federal ban on partial-birth abortion been overturned in the name of state sovereignty, for instance?
The reason Conservatives don’t do those things you list in comment #16 is because they lack the power. Not because state sovereignty prevents them from being done.
But even if you were right and state sovereignty actually mattered in any practical way, it would still not be an open-and-shut case. The best you could say is that state sovereignty would prevent some bad things from happening, at the expense of preventing some good things from happening. We’d then need a cost-benefit analysis to determine if state sovereignty is really worth the cost. Just saying “bad things might happen without state sovereignty” isn’t convincing.
Has the federal ban on partial-birth abortion been overturned in the name of state sovereignty, for instance?
It would be if the Supreme Court hadn’t decided Roe v. Wade incorrectly. :)
[edited to add, posted without checking to see if Robert and Amp had posted a bunch more comments, this one was responding to Robert at comment 16.]
Actually, the federal government is free to preempt state law on any subject it is permitted to legislate on (federal law is the supreme law of the land). The Bush administration wrote preemption into numerous federal environmental regulations, invalidating state environmental regulations that were stricter than the federal regulations. The national labor relations act preempts state regulations of unionizing (within a range specified by the law, e.g. banning voluntary recognition of unions is forbidden to the states, as (presumably) is card check recognition).
The Federal government can also very effectively control state rules through the use of funding restrictions. Medicaid is administered by the states, but the Hyde amendment could easily be amended to disallow medicaid funding to states that provide separate state funding to cover abortions (as it has disallowed federal highway funds to states that had speed limits greater than 55 in the past). While that control is less overt than a direct law saying that states can’t provide funding for abortions, it would be no less effective.
And, on abortion, we have a federal law forbidding a poorly defined category of late-term abortions, and states are not allowed to preempt that (that it is hard to see how a ban on an abortion procedure falls within a narrow reading of the commerce clause, and yet the ban was upheld by all of the SC justices who generally support a narrow reading of the commerce clause, even Thomas, who argued in Lopez that the commerce clause covered only interstate buying and selling, shows exactly how unprincipled adherence to state’s rights is).
The degree of expansiveness of the Federal government is a political question, not a constitutional one.
“The best you could say is that state sovereignty would prevent some bad things from happening, at the expense of preventing some good things from happening. We’d then need a cost-benefit analysis to determine if state sovereignty is really worth the cost. Just saying “bad things might happen without state sovereignty” isn’t convincing.”
The flip side never seems to be addressed though. We never have to justify the cost benefit analysis of the federal government having a horrible marijuana policy rather than letting states deal with it. We don’t have to justify the enormous corrosion in police/citizen interactions caused by not letting states deal with their own drug policies instead of ramming down drug warriors on everyone. The assumption is just that the federal government is the appropriate arbiter of those things, because it is the biggest dog on the block.
Robert @20: SCOTUS did indeed decide Roe v Wade incorrectly, but not in the way you’re thinking.
Stentor @8: You, actually. The issue is full faith and credit, not “states’ rights”.
I think once upon a time I wrote a post that basically mimicked this one (too lazy to find it), but upon reflection, I think it’s a bit much to say we should never care about state’s rights (though I agree that it’s almost invariably deployed opportunistically).
Put simply, I think we prefer federal control to state control when either (a) we have a strong desire for uniformity (e.g., a national currency system) and/or (b) we feel a particular solution is so normatively compelling so as to trump any desire for local variance (e.g., national legalization of gay marriage). We should prefer state (or local) control to federal control when there isn’t any particular need for uniformity, and we’re either willing to tolerate or affirmatively desire local pluralism (local tax policy, or traffic laws, or perhaps educational curricula to some extent).
We can debate what goes into what category, but the point is there are at least some structural benefits to both decentralized and centralized governments that go beyond simply who happens to be enacting the best policy at the moment.
In principle, I agree. I don’t like the term “states’ rights,” because states don’t have rights. However, I do believe that devolving power from the federal government to state governments would lead to better policy outcomes for at least some states. And then people can choose the states with the policies they like. No, moving to another state isn’t always easy, but it’s a hell of a lot easier than moving to another country.
Which, really, is why leftists aren’t so big on federalism. The left-wing program can’t work without the ability to bleed high-yield taxpayers. And if said taxpayers are free to just pack up and move to another state, that throws a spanner in the works.
That’s why the left wing of the Supreme Court threw cancer and AIDS patients under the bus in Raich. Better they suffer than risk having to scale back the federal government’s ability to exceed the powers delegated to it by the Constitution.
While you disclaim this, it is something that’s brought up a lot in an attempt to discredit States’ rights. But there’s plenty of good things that people have tried to use to justify evil. That doesn’t discredit the good things (which people tend to try to do a lot when talking about States’ rights, Christianity or religion in general, etc.), it discredits the people who have misused them.
Or when Republicans try to whittle away abortion rights nationwide?
and
Has the federal ban on partial-birth abortion been overturned in the name of state sovereignty, for instance?
Tit for tat, there. It was an overturn of State sovereignty that created a “right to abortion” in the first place.
Or when they try to stomp on state’s medical marijuana laws?
The Feds have long claimed regulatory rights over drugs, so I don’t see this as inconsistent. Do the Feds permit States to set their own rules for the use of any other drugs’ medical use? Note that I’m no warrior in the War On (Some) Drugs, BTW.
Or when they tried to amend the Federal constitution to stomp on same-sex marriage in Massachusetts?
By definition, the Constitution is the spot where the relative powers of the Feds, the States and individuals are settled. Given that an amendment needs the votes of both houses of Congress or a convention called by 2/3 of the States to be proposed and 3/4 of the State legislatures to pass I’m satisfied that if an amendment passes it’s the will of the people, which is the ultimate source of legitmacy in our Republic. It’s when such things are decided by courts alone that suspicion arises.
As far as changing the definition of marriage to include same-sex couples, the proponents of this should be glad that the concept of States’ rights exists. With it, the opponents need an amendment. Without it all they’d have to do is legislate against it, which is something that could have easily happened during the Bush Adminstration and which would have been highly unlikely to have gotten overturned since.
I’m not commenting on Terry Schaivo or national tort reform because I pretty much ignored the first and am ignorant of the second.
Which is perhaps the biggest end-run around Federalism. When the Constitution was written I don’t think the writers or the people who voted to adopt it figured that the Federal government would a) collect such huge amounts of money or b) send so much of it to support governmental functions in the States, to the point that they became dependent on it. These days there are functions nominally at the command of the States but practically dominated by the Feds. One example I’m personally familiar with is the schools. The States are nominally in charge of education. But when some localities started banning the Boy Scouts from using their schools to meet in the Feds responded by passing an amendment to the “No Child Left Behind” act that enabled people to sue to have Federal funds withheld from school districts that adopted such a policy (it actually encompasses the banning of any youth organization on the basis of it’s membership policies, so school districts that banned the Girl Scouts on the basis that they permit homosexual leaders would also be affected – but that’s not why the amendment was adopted …). If the tax money was never collected by the Feds and the States taxed it directly they’d be more free to do as they wished.
Perhaps it should be called “states’ powers”, then, since that’s what the 10th Amendments reads:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
I do myself tend to see “rights” as things that only individuals have, not States or the Feds. I’m not sure if the distinction is worth diving into or not in this context.
I think that perhaps the main reason for Federalism is being missed here. The idea was not to provide 50 (well, 13 at the time) laboratories for different ways of doing things. The idea was that people are best represented when their representatives are most responsive to them; representatives are most responsive to their constituency when the ratio of constituents/representatives is as low as possible and the representative is as close to the constitutents as possible; and thus as many functions as possible should be left to the governments made up by representatives who are as close to and as responsive to their constituients as possible. Which means limit the large, more distant and less responsive government to as few functions as possible.
The “50 labs” idea leads to the proposal that once we find out what the best ideas are they get passed into Federal law by Congress. But the “most responsive to the governed” idea leads to the concept that what works for Utah may not work for Massachusetts, that both may find that their disparate laws serve their interests best in their own situations, and the laws in Utah and the laws in Massachusetts stay the way they are and the Feds never legislate on the matter. Which I tend to think is a good thing.
The left-wing program can’t work without the ability to bleed high-yield taxpayers. And if said taxpayers are free to just pack up and move to another state, that throws a spanner in the works.
I’m told that this happened in California. Something like 200,000 people were paying 1/2 the taxes, so about 1/2 of them just packed up and left (or moved their money). I’m going strictly from memory here, so I imagine my numbers are off. I do believe that overall the latest Census has shown high-tax states are losing population share relative to low-tax states.
Mandolin, the application of “full faith and credit” to that issue will be interesting. If a contract or agreement that is outright illegal in State A is entered into in State B, is State A required to recognize it? Note that I don’t want to argue the issue with you here. Marriage isn’t exactly a contract, there’s all kinds of different issues surrounding it. A State could claim that two people getting together simply isn’t marriage, period, and that it’s way different than, say, a married couple with a girl who’s 17 moving to a State where the minimum age is 18. The proponents will say “Oh, no it’s not.” I bring it up because I’ve been waiting for a suit on this basis to come before the Court ever since the Commonwealth’s Supreme Court imposed it and I can’t figure out why it hasn’t happened yet.
Ampersand,
In response to the questions in your post:
Yes, I think that was a bad idea. Congress obviously thought that, because they have power, they could, and should, weigh in on whatever issue they like. They need to get that notion out of their heads. And, if I recall corrrectly, Republicans suffered a bit for it.
This is a Roe v. Wade issue, obviously. I think Roe v. Wade should be reversed on 10th Amendment grounds. At the same time, I know that, in my state, if Roe is overturned tomorrow, absolutely NOTHING will change in my state. My state’s Supreme Court has already said that the State Constitution provides greater protection for abortion than the Federal Constitution. If I do not like it, I could move. While that attitude is derided, it does answer your point: if the boot on your neck is a state boot, it is easier to escape than if the boot is a federal one.
This is difficult, I admit. The Feds have a perogative in addressing things that cross state lines (or come in from foreign countries). That is a legitimate federal role. However, the feds have no business dictating what I grow on my property (unless I am going to try to export it), or buy within my state. Furthermore, the feds should not be involved in the medical practice; that is something that was typically reserved to states (but, we see the examples of Roe and Schiavo, above). I am all for California telling the feds that, if the feds want to enforce federal law in Ca., they can have at it, but California is not going to help them. That is the kind of resolve federalists should have (much the way Arizonans did with immigration and the states have done with the ACA lawsuit).
This, again, is a difficult issue. The Full Faith and Credit Clause of the Constitution may be implicated here (some scholars suggest that it is not, but the argument can be made). My understanding of this is that those against same-sex marriage want an Amendment not to stomp on the Ma. law, but to say that the full faith and credit clause does not apply to same-sex marriage. In that sense, it is consistent. Ma. can do whatever it wants; it just cannot, in essence, legislate to everyone else by way of full faith and credit. So, there is a federal issue there, but I think your example actually shows the attempts to abide by a federalist course of action. (DOMA is a bit different, because it has to do with how the feds treat those who marry under state law.)
Agreed. There should be no national tort law reform. it only becomes a problem if the medical syatem becomes “national.” My undetrstanding is that the feds put a law into place that says insurance companies would be subject to state rules, so policies would not be sold across state lines. There is a bit of cognitive dissonance there because, on the one hand, they want to eliminate that barrier to competition on a national level, and on the other hand, want to limit state laws. I think they could do the former without doing the latter. By arguing for national tort reform, they are making the mistake of essentially buying into the notion that they have any business getting involved in the first place.
These questions are difficult, because they touch on very different areas of federalism. But, I think federalism can answer them. At the very least, it is a discussion worth having. Unfortunately, the people with the power no longer want to argue about it (and it is not clear that they have thought much about it). They just want to use the power they have, whether or not they have the “right.”
-Jut
Amp, Jut raises a good point. Are you talking about a Constitutional amendment that says that “marriage is exclusively between a man and a woman” or one that says “no State shall be required to recognize a marriage entered into in another State that would violate it’s laws”? Because I have heard many a time that people think that the Commonwealth should not be able to legislate what marriage is in their State. It’s a major objection.
I bring it up because I’ve been waiting for a suit on this basis to come before the Court ever since the Commonwealth’s Supreme Court imposed it and I can’t figure out why it hasn’t happened yet.
I haven’t the foggiest interest in researching this myself, but I do know that there are multiple states where first cousins are categorically forbidden to marry each other. There are also multiple states where first cousins may marry each other without restriction.
Should you care to look into it, that might be a good place to start. I assume that the marriage-recognition thing must have been raised at some point or another, when folks crossed into a less permissive state.
Denial of “full faith and credit” based on “public policy” has, when approved, historically been used to allow states to refuse to recognize interracial marriage. Not first-cousin marriage, not May-December marriage, not marriage by pedophiles.
RonF: c’mon. The whole point of Amp’s post is that people who defended repugnant policies as “states’ rights” discard that defense when it might be applied to policies they dislike.
In a national system, when 51% of the people think abortion is wrong, 100% of the people lose choice. In a national system, when 51% of the people think welfare recipients are lazy bums, 100% of the people lose the social safety net. In a national system, when 51% of the people think racial discrimination is something in history books, 100% of the people lose affirmative action protection.
Which is why we have a Constitution and a Supreme Court that can interpret the Constitution so that the majority can’t vote away the rights of the minority.
Except if they’re gays trying to get married, of course.
Which is why we have a Constitution and a Supreme Court that can interpret the Constitution so that the majority can’t vote away the rights of the minority.
Japanese internment, anyone?
The Supreme Court is subject to the vagaries of the democratic process, albeit more slowly than the other branches, and particularly so in the modern era where the Court is regularly asked to rule on questions which the Constitution is simply silent on. Abortion ain’t in there. Health care ain’t in there. Gay people ain’t in there. So there is little textual guidance and effectively infinite room for a politicized court to rule in accord with the changing mores of the day, rather than in accord with some underlying principle. There simply isn’t any Constitutional principle that creates an abortion right, and there simply isn’t any Constitutional principle that makes abortion unacceptable. It’s political.
Prospectively, we get fifty years of an increasingly anti-abortion populace, and Roe v. Wade goes away. We get fifty years of an increasingly pro-gay-rights populace, and gay marriage gets enshrined by the Supremes. Regardless of the rights and wrongs of these issues, the point of a federalist system which pushes the decision down in the hierarchy remains.
mythago says:
February 16, 2011 at 3:15 pm
The whole point of Amp’s post is that people who defended repugnant policies as “states’ rights” discard that defense when it might be applied to policies they dislike.
Isn’t that true for most people, whether they’re defending policies you find repugnant or supporting policies you find marvelous?
Sure, right wingers are hypocritical. So are left wingers. So are moderates.
You’ll see people argue state’s rights when it is good for their side, and federal rights when it’s good for their side. You’ll see people argue that things should be politically controlled when they think they have a political majority, and that courts should be respected when they need the courts’ help.
I’m not supporting right wing hypocrisy. But it seems pretty universal to me.
Robert @33: As you’d know if you’d bothered to read Roe v. Wade, there’s no “abortion right”. As you’d also know if you understood equal-protection analysis, same-sex marriage is not about a “gay marriage right”.
Note to self: repost ABA’s call for greater civics education in our schools, as even intelligent people with degrees have no fucking clue how the courts work.
gin-and-whiskey @34: So is this “everybody does it, big deal” or “two wrongs make a right”? Should we not call out those who extoll principles in which they have no belief?
More of a “big deal,” really.
I suppose what I’d like to see is more acknowledgment that these systems are imperfect. They’re designed to be imperfect, because of the tradeoffs required to obtain perfection.
IMO If we had more tolerance for imperfection then perhaps we’d spend less time calling each other hypocrites and more time trying to devise better working systems.
Any system which apportions rights is going to, on occasion, screw someone over. State-focused systems have costs and benefits; so do federally-focused systems; so does Amp’s “just look at the policy” system.
Can we devise a system which more accurately apportions rights? Sure… but that will be a system which is more complex or costly; has more layers and/or less finality; provides less general predictability; etc: those are costs, too.
So when Amp says:
Well…. no. It’s not better on one side or another. My argument is that some political “bad acts” are acceptable collateral damage given that we’re talking about a political process for 300 million people.
gin-and-whiskey @36: Of course the systems are imperfect. That’s not really what Amp is talking about.
“States’ rights, when they’re right” is not a principle. Pulling a sorrowful face and saying yes, policy X is terrible but it’s the state’s right to implement policy X if it wants to, is using “states’ rights” as a principle. Turning around and then saying that the state has no such right in implementing policy Y, because policy Y is terrible, makes it crystal clear that (like “judicial activism”) the argument all along was “I like policy X.”
mythago:
As you’d know if you’d bothered to read Roe v. Wade, there’s no “abortion right”.
I’m not clear on this. It seems to me that Roe v. Wade did in fact establish a right to abortion. While the states may regulate it to a certain extent, they cannot generally ban women from getting abortions.
Now, Roe v. Wade did not establish an abortion entitlement; a State is not required to tax me to pay for someone’s abortion if they can’t afford it. But that’s different from a right to an abortion – which it seems to have established, and led to the striking down of abortion statutes that were to the contrary in a great many States.
Well, but I’m not seeing as many examples of such as people seem to think there are (again, I didn’t follow the Schaivo case or the national tort reform issue as much as a lot of other people apparently did). So I don’t think that this has been muddied that much as others do, although I’ll agree that there are examples, especially with application of the Commerce Clause to intrastate commerce (which includes medical marijuana grown within a State) and Roe v. Wade.
In fact, I’d argue that a Constitutional amendment to say “‘SSM’ cannot be enforced across State lines” as a pro-States’ rights position. That keeps one State from legislating a change in another. Now, a “‘SSM’ can’t exist” amendment would take away from States’ rights – but it would at least place a somewhat high barrier in doing so that would establish that it was clearly the will of the people that this NOT be a State’s right. “States’ rights” means that States have rights/powers under the Constitution that the Federal government cannot override. It doesn’t mean that the States have unlimited rights. If you change the Constitution then the people have decided what limits there should be, and that in the final analysis is what democracy and the Constitution is all about.
My guess is that once two people who are first cousins marry in a permitting State and then move to another, the authorities in the second State have absolutely no clue that these two were first cousins before they were husband and wife, there’s no repercussions, and Fred and Ginger have no particular interest in bringing it up.
OTOH, when Fred and Bruce or Ginger and Sally show up in a non-permissive State and claim to be married it’s pretty obvious.
RonF @38: Roe didn’t find that there is an ‘abortion right’ in the Constitution. What it found is that abortion implicates the privacy rights SCOTUS had already said existed (in the Eisenstadt v. Baird and Griswold v. Connecticut) decisions, and balanced those rights against the State’s interest in preserving fetal life (not the “right to life”).
As for “gay marriage”, the decisions permitting SSM were really decisions striking down opposite-sex-only marriage laws when those laws raised Constitutional issues; that is, they conflicted with a state’s equal-protection mandate and the state in question was unable to show that the laws properly enunciated a state interest. No court has said “The US Constitution really says gay marriage is OK.”
Might it not also be that Liberals have been just as opportunistic in their preference for a nationalist interpretation of the Constitution over the last 80 or so years? The Democrats have had reliable majorities in Congress for most of that time, but seldom had reliable majorities in over half of the state legislatures at any given time.
This is a great conversation. I’m obviously way too late to it, but just wanted to add that, anyway. And also, in case anyone is still reading this, I’m a pretty left-leaning person, but am growing more supportive of states’ powers. It’s become apparent that the larger the federal government is, the less meaningful our engagement in the political process is– and the less effective our participation is. This may not be a universal feeling, but until the protests in Wisconsin started in February, I never gave much thought to our state governments and the power they had, and the power that the people of the states had. I fully agree with the notion that escaping the state’s boot is easier than escaping a federal boot. And to add to the earlier argument that it’s still difficult for poor folks to move from one state to another, it’s obviously much more difficult to move from one country to another. If those are our two options when our respective governments institute policies that harm us or that we don’t agree with, obviously, the state boot is preferable to the federal.
@Robert
That is probably the best argument for states rights that I have heard.
On a more philosophical level, I believe Jefferson and other “founding fathers” were highly influenced by Rousseau, whose arguments for states rights had to do with local people with a common heritage and tradition being more in tune to their needs and desires.
The one problem with Rousseau’s ideas is that America has become so fractured and dislocated that I don’t think there is really any credence to the notion of local community “cultures”, except perhaps in rural areas. Cities in all states are occupied by people from all corners of the country. Everybody is from somewhere else. I’ve moved several times myself.
And your suggestion to just move to a state you politically agree with sounds great but is really not practical. People generally move or not based on family and work commitments, not ideology.
It seems like the philosophy behind states rights is a bit of a throw back to some romantic past. No state in America is like 18th century Geneva, and Rousseau was pretty clear than a Republic wouldn’t work on a scale much larger than that.
And, I must point out, the laboratories of democracy idea sounds great too, but what is the point of experimenting if not to find out more about the social world and try and apply that knowledge? I suppose other states could follow suit on their own, but that assumes they are run by people with the public’s interest at heart, and not those just trying to protect their own power and interests.
I guess that last statement would apply to all of government.
Anyway, it is an interesting issue.