States' Rights Hypocrisy

Dear Auntie Pinko,

Just recently the (still Republican-led) Senate declined to pre-empt states’ legislative powers regarding health insurance by defeating a bill offered by Senator Mike Enzi (R-HMO Execs’ Pockets). This is, if I recall correctly, only the latest attempt of many by the Bushies to keep states from kicking over the GOP corporate contributors’ butterchurns, like pre-empting states’ regulatory efforts on food safety for the benefit of ADM and other agribusiness cartels.

Excuse me if I’m way off base here, but weren’t the Republicans the “States’ Rights” party? Wasn’t that the reason they won the Southern vote in the wake of the Democrats’ imposition of forced school desegregation, voting rights, and other ‘meddling with states’ rights?’ Are the Democrats now going to pick up the “States Rights” mantle and drape themselves in it? Doesn’t that seem a little hypocritical? What makes the two parties any different if they’re willing to assert or abandon states’ rights whenever it suits their political message?

Please don’t think I support Bush and his cronies, but as an old-school conservative and independent voter I’m trying to puzzle out just which party blows the most smoke through their hats on this issue. Help me out, here.

Warren
Wilmington, DE


Dear Warren,

Auntie isn’t going to argue with your assertion that both parties have been opportunistic in their interpretation and support of the Tenth Amendment; politicians are opportunists, and opportunism is the nature of politics. In the United States, we the people hold ALL governmental powers in our sovereign selves, but we delegate them by necessity to professional politicians. Theoretically, the Constitution and laws provide checks on the human nature of those politicians, but of late we the people seem content to have them ignored in the interests of partisanship. If you believe in an afterlife, it isn’t too hard to imagine the Founders flinging up their hands in frustration and disgust at our subversion of their best efforts to protect us from the evils of partisanship.

Thus it is hardly surprising that ‘States Rights’ is frequently chosen as the ball in the football game of partisanship, with one party or the other attempting to gain yardage based on their manipulation of issues thus framed. In the end, it comes down to a matter of Constitutional interpretation, meaning that it will be up to the Supreme Court, which has until recently been the least partisan of the three branches of government. In theory, stare decisis keeps partisan influence on the court to a minimum; in practice it, too, has been a casualty of the recent Partisanship Wars. (Stare decisis is, roughly, the principle that the Court must not contradict or overrule its own past decisions in handing down current decisions, unless the Constitution itself has been changed.)

To present a simplified overview, the United States Constitution defines the form of our Federal Government and how it is, well… constituted, and limits the powers of the Federal Government to a few specific areas. Beyond that, all the powers of day-to-day government that affect the lives of our citizens are left to the individual states. That makes it sound as though the Federal Government isn’t very powerful, and indeed, that was the intent of the Founders when the original document was written.

It helps to understand this if we remember that when the Constitution was written, its purpose was to reconcile thirteen distinct states with very different economic, social, and cultural patterns. While Americans tend to see the primary definition of the term “state” as a unit subordinate to a larger government, when the “United States” was formed, the definition of “State” was an independent, self-governing political unit, synonymous with “country” or “nation,” a definition which is still true and remains the primary one for much of the world today. The Founders were, in essence, trying to unite thirteen units that perceived themselves as potential nations or countries.

None of the states wanted to commit themselves to abiding by the day-to-day rules of another state. Their main interest, at that time, in forming a “union” was to ensure that they’d be able to fight off Britain or any other power that tried to assert sovereignty over them. They knew full well that no one of them could do so alone.

At that point in history, with the ink still damp on the Treaty of Paris, and the future of the former colonies a fluid and tenuous thing, the Founders asked a critical question that had been made vivid by the Revolutionary experience: How can differing states be welded together to form an entity strong enough to maintain its independence forever? In the face of the massive disparity of power between that Union and the European superpowers of the day? The answer transcended mere military alliance. Military alliances shift too easily in the face of states’ perceptions of economic and political self-interest. Thus, the document constituting the new Union had to form economic and political bonds between the states.

Faced with the dilemma of forging such bonds in the face of the states’ prickly insistence on self-government, the framers of the Constitution had to choose strategically which powers could be reserved to the new national government, powers that would pass muster with the newly-independent states. They settled for three groups of powers: External relations, intrastate relations, and the political maintenance of the Union itself, and the operations of the Federal government itself. That’s all that was in the original Constitution.

Once the Union was actually consummated, however, the efforts to define and strengthen what it stood for began immediately in the form of the Bill of Rights, the first ten Amendments to the Constitution. Nine of them specified citizen rights that could not be abrogated by legislation, defining for the first time what it meant to be a citizen, not of a particular state, but of the United States. The Tenth Amendment specified yet another limit on the Federal Government, explicitly vesting powers not delegated to the United States government in the States and the people.

We have actually done pretty well with regards to maintaining our Constitution. With only one glaring exception (the XVIII Amendment, which was repealed by the XXI Amendment less than 15 years later) all of our subsequent tinkering with the Constitution has been appropriately directed at changing or clarifying matters related to the mechanics of citizen sovereignty and voting powers, or the powers of the Federal government. We have largely resisted the temptation to use Constitutional amendment as a legislative tool to advance ideological or political interests, although some fool is always trying.

So if its powers are limited to external relations, intrastate relations, and operational matters, how did the Federal Government evolve into the 900-lb. gorilla that it is today? Well, partly because it’s easier to pass one law than fifty laws, people started looking for ways to shoehorn legislation into one of the Constitutionally-delegated federal categories. The regulation of interstate commerce, for example, covers a huge territory that includes everything from workers’ rights to rural electrification, how the stock market should work, food safety, banking, protection of the environment, and a hundred other matters that affect everyone, every day, regardless of whether you live in Anchorage or Miami.

And the responsibility of the Federal Government to manage external relations resulted eventually in the creation of a vast reservoir of spending power as the United States fought wars and eventually built up the world’s largest military. With that much spending power concentrated in one governmental entity, it was inevitable that the Federal government would become a powerful behemoth, with interest groups struggling for control.

Hopefully this clarifies a lot about how federal legislation became the preferred “end run” play for powerful partisan groups trying to control and/or direct change, and how states’ rights has become the last ditch for resistance to such change. What we as citizens need in each case is not a reflexive deference to states’ rights or federal powers, but a careful examination of how appropriately the issue at hand is being handled with regards to the Constitution. Is it really a matter that requires Federal intervention to assure that all Americans’ Constitutional rights as citizens are protected, or to deal with the Republic’s external relations, or to regulate differences between states? Everyone with an agenda to advance will try to frame their issue that way—do your homework, check the facts, and decide if you agree, and thanks for asking Auntie Pinko, Warren!

That's the question you need to ask whenever anybody throws up the scarecrow of States' rights.

Have they used "States' rights" to justify the right of States to provide better education for their citizens? Never. Have they used it to justify the right of States to open their process of voting and citizen participation? Puh-leez! No, whenever that phrase has issued from conservatives' mouths and pens, it's been used to justify the alleged right of States to provide a poor education for its minority citizens and to erect barriers to the participation of its minority citizens in the political and economic life of the State.

Just ask the question: "the right of States to do what?" and you'll see what people who use it are really up to.