States' Rights

~Made by request of Ágnes and Rhian~

I'm not particularly sure how to get it rolling, so I guess I'll begin with a definition.

States' rights in U.S. politics refers to political powers reserved for the U.S. state governments rather than the federal government.

Generally, in the American experience any power that is not explicitly granted to the federal government in the constitution devolves to the states. As such, the United States exists in a state of flux, where some activities are legal in some parts of the country and illegal in others, but also where concepts and contracts are divided in legality, such as gay marriage.

Now, the argument can be made that the restriction on the ability of the central government to dictate to the states prevents a tyranny wherein a faction of one part of the country may be able to enforce on other parts of the country views and laws counter-current to the desires of the local populace.

The argument can also be made, however, that by censuring the authority of the central government, abuses and atrocities can be condoned. In the decades leading up to the Civil War, for instance, the legality of slavery depended on the decision of the state, not the federal government. Or it can simply be argued that it allows the states to block or delay important federal decisions.

Therefore, what is your opinion on the current state of affairs in regards to State's Rights in The Union?

Federal Powers

Express powers: Powers that the Constitution explicitly grants the federal government. These include the powers to:

Collect taxes

Regulate interstate commerce

Coin money, regulate currency, set standards of weights and measures

Declare war

Raise and maintain an army and navy

Implied powers: Based on the elastic clause (Art. I, § 8, cl. 5), powers considered “necessary and proper” for carrying out the enumerated (or express) powers

For example, in 1791, Federalists in Congress argued that the creation of a national bank was “necessary and proper” for Congress to execute its enumerated powers to coin and borrow money and regulate currency. McCulloch v. Maryland (1819) confirmed Congress’s right to found this national bank.

Denied powers: Powers that the Constitution explicitly denies to the federal government. These include:

The writ of habeas corpus cannot be suspended unless in cases of rebellion or invasion, when deemed necessary to national safety.

No bill of attainder or ex post facto law can be passed.

“Supreme law of the land”: the Constitution and federal laws take precedence over state laws (Art. 6)



State Powers

Powers reserved for the states: “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” (Tenth Amendment in the Bill of Rights)

Overlapping powers: Powers allotted to both state governments and the federal government. These include:

The power to levy taxes

The power to borrow money

The power to charter corporations

State-to-state relations:

Full faith and credit clause: Each state must honor other states’ public acts and records (Art. 4, § 1).

A citizen of one state is a citizen of every state and is entitled to all the privileges and immunities of those states (Art. 4, § 2, cl. 1).

Anyone who is charged with a crime in one state and escapes to another state must be returned to the state where the crime was committed (Art. 4, § 2, cl. 2).

Congress may admit new states to the Union, but no new states can be created within the boundaries of existing states without the approval of Congress and the state legislatures concerned (Art. 4, § 3).

One of the major, inherent, and potentially unavoidable problems of the United States is that it is far too large a country encompassing far too wide a demographic. Americans are far too disjointed, diverse, and different from each other to assume that they can all agree civilly on any one issue and get things done, and I think I have not heard only once that the United States would be better off as several different countries as opposed to one.

If only in theory (I'll address why this is in italics later), the political (as opposed to social and financial) aspect of U.S. bipartisan politics essentially revolves around addressing this issue. Liberals hope for a stronger central government to promote greater unity through standardization, that everyone basically still sings the same tune consistently. Conservatives, meanwhile, look at a model not dissimilar from the European Union: They all fly a flag that represents them as a group, but are otherwise geopolitical entities that mostly do their own thing save legislation meetings, reducing friction by ensuring everyone does what they're comfortable with. They're both highly different - and highly incompatible - answers to the same problem.

Or so it seems. Remember where I italicized "if only in theory"? There exists the view that Republicans only support state rights not because they actually want greater state rights, but because liberalism is on the rise, because they cannot win on social issues nationally, so they intend to make isolated states the last bastions of their conservative lifestyle. It was a viewpoint I did not take very seriously until I started looking at Republicans trying to push for national legislation on banning gay marriage, national legislation on destroying birth prevention, national legislation on allowing for discrimination against women. If Republicans were really about state rights, why are they trying so hard to push their agendas on the national level?

I think both systems have ridiculously easy ways to abuse the system, and I do not think that either or is the perfect solution on a permanent basis. However, if we were to look at things as they stand now...

liberalism is on the rise, because they cannot win on social issues nationally, so they intend to make isolated states the last bastions of their conservative lifestyle.

I know it's very off topic, and someone can move it elsewhere if they want, but I read an interesting article that predicts a future of well, exactly the opposite. The death of Liberal America, as it were, lies in birth rates that are still extremely high and are likely to remain so among the conservative religious fundamentalists while it is in a decline very similar to the rest of the West in the liberal parts of the country.

Originally Posted by The most rabid Democrat I ever did see

According to another set of data, for the past 30 years or so, conservatives -- particularly those of the right-wing red-state Christian strain -- have been out-breeding liberals by a margin of at least 20 percent, if not far more...

... Apparently, according to the research, four out of five kids actually stick with the political affiliation of their parents, generation after generation...

Well, in order to discuss federalism with any fairness one has to contextualize the creation of these United States. Recall that the United States was initially formed by individuals sharing a not unfounded concern of the potential abuses of strong, centralized governments. Add to that the historical tradition of each major colony-state governing as an autonomous unit—a trend that was unchanged during the first aborted attempt at union. Out of this maelstrom of mutual suspicion, governmental paranoia, and history of state autonomy and self- determination was born the United States Federal Government—outlined in a Constitution so deliberately immune to change that it was amended only twice between its ratification in 1789 and the beginning of the American Civil War.

I think the first observation I have on the subject is that if the United States were Switzerland, it would be more of a moot point. Switzerland, having a low international profile with an extremely diverse and heterogeneous cultural makeup seems like an ideal candidate for a devolved government, if government there must be. If we lived in Pat Buchannan’s America where we twiddled our thumbs blissfully behind our oceans and borders, then I think much of the rest of the world would look at us as a national oddity, but little else.

However, it’s not that simple, and much of the world looks at our system of federalism with frustration. When the President of the United States, the person almost unanimously selected as the world’s most powerful individual, is threatened and even embarrassed by a regional governor of what would in any other nation be an outlying province, then we have a problem. Add to this that the United States is, quite unlike Switzerland, the cornerstone of the international system and the world’s greatest economy and military power—for better or for worse. Thus, when the United States finds itself unable to take action that threatens the global economy or global security, the world gets rather frustrated—and justifiably so. Thus, I tend to think that a more devolved, confederal system is ideal if, and only if, 1) the devolved system has the consent of all polities involved and 2) the confederal state is still able to dispense with all its obligations. Obviously, throughout its history, the United States has failed to meet this standard.

I will say though, it is somewhat amazing that the federal government has the power that it does. Realistically, the vast majority of federal power comes from a few different things—the 14th Amendment and the exportation of the US Constitutional Amendments to the states, the Supremacy Clause, and Congress’ power to tax and regulate interstate commerce. The latter power especially deserves some note, because federalists on the Supreme Court, as well as Congress and the POTUS used the Commerce Clause to regulate various matters between states or within a particular state through making a generic argument that the matter involved something commerce related. Basically these powers make the modern federal government with a Constitution that remains pretty fundamentally unchanged in the grand scheme of things.

With this context, I would encourage some degree of consideration that devolved powers have played in history. When most people hear “state’s rights,” I’d venture to say that the involuntary association is Jim Crow and the Confederacy. This is not a unmerited association. However, consider the proponents of devolved powers prior to 1861—generally these were the anti-slavery states who objected to, among other things, fugitive slave laws and a federal government that seemed at best indifferent to slavery. From the beginning of the 19th century onward, it was state’s rights that gradually ended slavery in the north in the absence of any federal law that would have stopped the tyranny referenced in the OP. It was only when the Civil War began that the South became inveterately wedded to the cause of secession that state’s rights truthfully became important. Thus, state’s rights and devolved powers can open the door of a multitude of injustices and inequities. However, they also provide a mechanism to challenge the same. This isn’t a ringing endorsement of either the CSA or the Cato Institute, merely a statement that while devolved state autonomy has had a tragic history in the United States, it deserves a more thorough analysis than “State’s right, durr hurr lol rednecks.”

State’s rights are something that I can, at least academically, find myself supporting. At least in theory, powers devolved to the states would create a more democratic and more representative form of government. The question is whether the inefficiencies and occasional aberrations outweigh the benefit of that representation. Again, I’d say if it’s Switzerland, go ahead and have devolved governments. However, when you’re the most powerful country in the world and have responsibilities and obligations to other nation states, I’d say that the cost outweighs the benefit.




My apologies to any Swiss offended with this post.

Human rights supercede state's rights.

Originally Posted by minervyx

Human rights supercede state's rights.

The state is the collective of citizens dwelling therein.

As a firm believer in the Rule of Law I am unable to support the concept of state rights for one simple reason: It results in your legal rights being determined by arbitrary geographical borders.

One of the key elements of the Rule of Law is certainty - you need to know what the law is in relation to you in order to understand your rights and obligations. In order for this to be secured in the USA as it stands, you essentially need to educate yourself about the law of every state you intend to visit. This makes sense if you're going on holiday, but in a country like America where inter-state transactions can be the norm even for American citizens, this doesn't really work when one day you might be complying with what you're told is your duty, and the next you might be committing an offence without realising it, especially given that ignorance of the law is not an excuse. It's impractical to expect every person to re-educate themselves on the law whenever they wish to travel.

Far more people vote than they do express their intelligent opinion.

I am in favor of states rights and decentralization.

A one sizefits all system doesn't work well in a diverse society that values individualism and customized solutions in my opinion.

I want things tailored to how I like them. Governments should compete against one another. The states with the best policies will attract the most people and will variably be emulated to some extent by others. This would also limit the subsidization of poor developmental choices.

While I believe there to be a level of perfect balance between state and federal rights, I don't believe that level will ever be attained in America. Human corruption will always thwart such attempts, as will the diverse views each person in the country holds. Politicians will debate this for the rest of American history, but there is never going to be a solution without the complete loss of human rights first. So to look for one is a futile attempt.

I think the government can potentially be a lot more efficient if things wereore centralized. But at the end of the day, the federal government can get the states to do whatever they want with the promise of federal funds. States' rights became nearly irrelevant once every state began to rely on federal funds.