My little rant on State's Rights

[cpawfan]

On its face, I support the concept of a smaller federal government; however, as someone that has lived and paid taxes in four very different states, I can't support the concept of a smaller federal government for the purposes of letting states make their own decisions.

I can't say that I trust anyone elected to a position in the US congress or even to the Presendency, but I do believe the variety of interests opinions there protect the general population more than the people running state governments. Yes, in theory, the state government is closer to the people and should have a better idea of what the people need, but then I look at the laws they pass.

It is much easier for the political loons (a term I use very loosely) to gain voting blocks in state governments because the general public doesn't care as much about the state elections. I live in Ohio currently and the state now is no different from 10 years ago even though the bufoons running the state government have changed. I need the federal government to protect me from the idiots that won the title of state representative.

I expect to have the same general rights no matter what state I'm visiting or living and I see no way for that to be possible in this day and age with a significantly smaller federal government.

 

[Big Frame]

Didnt we fight a war over this?

 

[AEM]

A little bit

 

[Denny Crane]

Problem is that govt. is generally corrupt. The bigger the govt., the more corruption.

At the local level, you get zoning commissioners rezoning the curb outside your store as no-parking if you don't pay the bribe.

At the federal level, the thieves get $billions on the take, overthrow governments to help our big companies, and generally buy votes nationwide with handouts.

In between that you have a state like California which is like the 6th largest economy in the world. It could easily be run as most of the government the people there need.

 

[cpawfan]

<div class='quotetop'>QUOTE (Denny Crane @ Jan 11 2008, 10:12 PM) <{POST_SNAPBACK}></div><div class='quotemain'>Problem is that govt. is generally corrupt. The bigger the govt., the more corruption.

At the local level, you get zoning commissioners rezoning the curb outside your store as no-parking if you don't pay the bribe.

At the federal level, the thieves get $billions on the take, overthrow governments to help our big companies, and generally buy votes nationwide with handouts.

In between that you have a state like California which is like the 6th largest economy in the world. It could easily be run as most of the government the people there need.</div>

You may have more corruption the higher up the government chain, but your also get far more incompetence when you go down the government chain. The people in local government are there because they are too incompetent to be in state government and the people is state government are too incompetent to be in the federal government.

The incompetence is the far greater problem. Plus at the state level, it is far easier for special interests (i.e. people that want to limit personal freedoms and want to deny rights to the people they don't like) to get bad legislation approved. As an example, without federal protection, most state would have laws that permit hate crimes against homosexuals and transgender people.

 

[Denny Crane]

There's something on the order of 80,000 cities and towns in the USA. I don't believe that many of them, outside of Louisiana, are run that incompetently.

NYC is bigger than a lot of entire states, and yet it was nearly run into the ground (bad debt ratings and all that) before Rudy took over.

Whether we have a small and weak central government or something like what we have now, the constitution would always trump state laws.

Interestingly, I've lived in Chicago when Richard J. Daley was mayor, California, Hawaii, and now Nevada. The city of Chicago was terribly corrupt and dominated by Democratic Party Machine politics. California was no better, but on the whole state level. Hawaii, pretty much the same thing, though the governor now is a republican. Nevada is pretty libertarian, and the corruption these days is inconsequential.

For most of my life, the federal government was dominated by Democrats. From 1960 to 1980, we had 8 years of republican presidents and 12 of democrats, with both houses controlled by democrats and even the SCOTUS justices mostly appointed by democrats. Similarly, two years of Clinton were single party rule.

If government were merely so small that there was no personal profit to be had by serving, then we'd all win. Unfortunately, it isn't so, and as they say, "power corrupts and absolute power corrupts absolutely."

The best case for states rights is that people in Washington cannot possibly enact all the laws for Nebraska in a fair and appropriate manner. Few of the people who serve in Washington have ever been there, and one size does not fit all.

 

[cpawfan]

<div class='quotetop'>QUOTE (Denny Crane @ Jan 11 2008, 10:44 PM) <{POST_SNAPBACK}></div><div class='quotemain'>There's something on the order of 80,000 cities and towns in the USA. I don't believe that many of them, outside of Louisiana, are run that incompetently.

NYC is bigger than a lot of entire states, and yet it was nearly run into the ground (bad debt ratings and all that) before Rudy took over.

Whether we have a small and weak central government or something like what we have now, the constitution would always trump state laws.

Interestingly, I've lived in Chicago when Richard J. Daley was mayor, California, Hawaii, and now Nevada. The city of Chicago was terribly corrupt and dominated by Democratic Party Machine politics. California was no better, but on the whole state level. Hawaii, pretty much the same thing, though the governor now is a republican. Nevada is pretty libertarian, and the corruption these days is inconsequential.

For most of my life, the federal government was dominated by Democrats. From 1960 to 1980, we had 8 years of republican presidents and 12 of democrats, with both houses controlled by democrats and even the SCOTUS justices mostly appointed by democrats. Similarly, two years of Clinton were single party rule.

If government were merely so small that there was no personal profit to be had by serving, then we'd all win. Unfortunately, it isn't so, and as they say, "power corrupts and absolute power corrupts absolutely."

The best case for states rights is that people in Washington cannot possibly enact all the laws for Nebraska in a fair and appropriate manner. Few of the people who serve in Washington have ever been there, and one size does not fit all.</div>

You are focusing too much on the money. My number one concern is individual rights. The people in Nebraska shouldn't be able to take away rights of minorities and there are several of these rights that aren't currently protected by the constitution.

 

[AEM]

The Constitution was NEVER intended to affect the governance of the states.

 

[Denny Crane]

You have it backwards, cpaw.

The states in domino effect are one-by-one recognizing gay marriage or domestic partnerships. The feds are passing laws like the defense of marriage act, signed by Bill Clinton in 1996.

I don't think AEM is right either. The original constitution put all kinds of restrictions and made rules and laws for the states. All states are required to have a republican form of govt., for example, as well as paying taxes to the feds to cover its costs. The 14th amendment is a later addition.

 

[cpawfan]

<div class='quotetop'>QUOTE (Denny Crane @ Jan 11 2008, 11:49 PM) <{POST_SNAPBACK}></div><div class='quotemain'>You have it backwards, cpaw.

The states in domino effect are one-by-one recognizing gay marriage or domestic partnerships. The feds are passing laws like the defense of marriage act, signed by Bill Clinton in 1996.

I don't think AEM is right either. The original constitution put all kinds of restrictions and made rules and laws for the states. All states are required to have a republican form of govt., for example, as well as paying taxes to the feds to cover its costs. The 14th amendment is a later addition.</div>

Yes, the fed has the crappy defense of marriage act, but more states are eliminating gay rights than recognizing them. There are states that are attempting to make it illegal for private companies to be even able to offer domestic partner benefits.

 

[Denny Crane]

Unfortunately, homosexuals aren't considered a "protected group" with respect to the 14th amendment. The feds can't dictate to the states what their laws regarding marriage must be. Regardless of the leaning of SCOTUS, they wouldn't try to force it on the states either.

I don't see this as particularly a civil rights issue, in the sense that blacks were treated horribly unfairly/segregation/separate bathrooms/separate water fountains, etc. It has some of the characteristics of civil rights issues, no doubt.

Bans on same sex marriages apply to homosexuals and heterosexuals. If I had a roommate for 30 years, marriage might be a nice convenience even though I am a heterosexual. Especially when you consider tax benefits, inheritance, and spousal rights (e.g. to pull the plug if I'm brain dead and that kind of thing).

People are too hung up over the word "marriage" and that's the cause of all the problems, IMO. If the gay rights movement had pushed for civil unions, people wouldn't have seen it as an assault on a very old and established religious and civil institution.

As for the states that are banning same-sex marriage, many are not banning civil unions at the same time, and the whole movement was instigated at the federal level. You had people of both parties in the federal government upset by what the states were doing, they led with the defense of marriage act, and the states followed. In fact, half the states that voted to limiting marriage to heterosexual couples did so in 2004, when it was made a national issue.

As far as I'm concerned, there is common law marriage, which is what same-sex marriages are, regardless of the laws. The real issue is the rights that go along with "marriage" and it is unfortunate that there is this conflict due to the word.

 

[AEM]

<div class='quotetop'>QUOTE (Denny Crane @ Jan 11 2008, 11:49 PM) <{POST_SNAPBACK}></div><div class='quotemain'>You have it backwards, cpaw.

The states in domino effect are one-by-one recognizing gay marriage or domestic partnerships. The feds are passing laws like the defense of marriage act, signed by Bill Clinton in 1996.

I don't think AEM is right either. The original constitution put all kinds of restrictions and made rules and laws for the states. All states are required to have a republican form of govt., for example, as well as paying taxes to the feds to cover its costs. The 14th amendment is a later addition.</div>

The Constitution placed certain obligations on states, but not restrictions - all the restrictions in the Constitution and the Bill of Rights were meant to restrict the power of the federal government.

For example, the Constitution doesn't require states to have a republican government, it guarantees it. Art. IV, sec. 4, and Federalist No. 39 (Madison).

 

[Denny Crane]

The 10th amendment reserves rights not stated in the constitution to the states and then the people. However, it grants congress the power to pass laws, and those certainly trump state laws. The language is pretty clear throughout the constitution and bill of rights, when it says "congress shall pass no law" - it's anticipated that the federal govt./congress or the states' congress' might otherwise pass such laws.

We did try out a decentralized and toothless central govt. in the days of the Articles of Confederation, but they obviously felt they needed a stronger central govt. with authority over the states to make a go of it.

 

[AEM]

Many commentators on the Framing period hold that the Tenth Amendment was not only unnecessary, but the product of complete misunderstanding by the anti-Federalists. But when the Constitution/Bill of Rights says that Congress may pass no ___ it was only intended to restrict Congress. What you're talking about has come progressively later on. For example, the non-establishment clause of the First Amendment was never supposed to have any bearing on the states themselves - it was a strict limitation on the federal government to prevent an Anglican-style Church. It didn't affect the individual states and their religious practices.

 

[Denny Crane]

If the establishment (and free exercise) clause didn't apply to the states, then they're both meaningless... The states could simply pass laws restricting religious expression or all of them pass laws forcing one religion upon the people.

In fact, there'd be no need to amend the constitution if the states could override any parts of it at will.

 

[AEM]

You're coming at it all wrong. The point of the Bill of the Rights was to restrict the power of the Federal government - period. The states had their own constitutions that remained unchanged by the Constitution. For example, the NY Constitution of April 20, 1777 had its own religion clauses:

<div class='quotetop'>QUOTE </div><div class='quotemain'>XXXVIII. And whereas we are required, by the benevolent principles of rational liberty, not only to expel civil tyranny, but also to guard against that spiritual oppression and intolerance wherewith the bigotry and ambition of weak and wicked priests and princes have scourged mankind, this convention doth further, in the name and by the authority of the good people of this State, ordain, determine, and declare, that the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind: Provided, That the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.

XXXIX. And whereas the ministers of the gospel are, by their profession, dedicated to the service of God and the care of souls, and ought not to be diverted from the great duties of their function; therefore, no minister of the gospel, or priest of any denomination whatsoever, shall, at any time hereafter, under any presence or description whatever, be eligible to, or capable of holding, any civil or military office or place within this State.</div>

Again, the Bill of Rights was created to assuage states rightists who feared that the federal government would abrogate the rights retained by the states, and otherwise style itself according to Britain's customs. The point of the Free Exercise Clause wasn't an affirmative grant to anyone, it was merely a limitation on the federal government. As such, it was never intended to have any bearing on the rights of the states one way or another.

 

[Denny Crane]

It's called the "Bill of Rights" and not the "Amendements that restrict the power of the federal government" for a reason.

 

[AEM]

I'll go further. The Framers not only disagreed with the 'necessity' of a Bill of Rights, they believed it to be counterproductive, as it would not only be later (mis)understood to 'create' a higher class of rights, but it would also mislead people into believing that rights were created by the text, rather than their conception of natural rights.

Regardless, to understand the original purpose of the Constitution and Bill of Rights, one must demarcate between the two. The Constitution was created in order to form a federal government, derived from the authority of the People, with certain areas of control, as delineated in the text. The Bill of Rights was it's antithesis - a number of further restrictions on the newly formed federal government. At that time, the thought that the Bill of Rights could be applied to the states would have been anathema to the proponents of the Amendments, and directly antithetical to their purpose.

It has only been with the accrual of power to the federal government (read: Congress, despite many hysterical commentators to the contrary) that the original purpose has been transmuted into something completely different - and more conducive to complete confederation, rather than federation.

 

[AEM]

I'll add further that the Bill of Rights was patterned on similar sections of state constitutions, and meant to apply similar 'protections' to people from action by the federal government. The egg (state bills of 'rights') came before the federal chicken.

 

[AEM]

"... a declaration of rights; which under our constitutions must be intended to limit the power of the government itself." Federalist No. 84 (Hamilton)

In the same article, he discussed the reasons for NOT including a Bill of Rights in the then-proposed Constitution. Again, the thought that the prohibitions on the federal government could somehow be applied to the states was completely out of thought.

Indeed, Hamilton went on to cite Rutherford's Institutes et al for the proposition that "...states never lose any of their rights, nor are discharged from any of their obligations, by a change in the form of government." [Italics in the original]

 

[AEM]

Also bear in mind that the Bill of Rights was actually pushed by the states themselves, as further restriction on the government - something they would never have wished if it had been intended to affect their own powers negatively.

 

[AEM]

With due embarrassment for failing to recall the matter before this point, four of the Amendments proposed by Madison were vetoed by the states before the remaining twelve even went before Congress for a vote - chief among them one that would have applied the First Amendment's protections against state action.

 

[Denny Crane]

There were two main issues that caused people to argue against the Bill of Rights. First, it made the constitution sans these amendments appear to give the govt. too much power. Those who know better, can see that it did. Second, the enumeration of some rights might be misconstrued to only include those rights thus other rights would be fair game.

The Bill of Rights clearly enumerates rights.

The reason states wanted a Bill of Rights is that some states were mostly episcopalian and others were of other Christian denominations. Without the 1st amendment, some states could gang up on the others and force a national religion. While I talk about the 1st here, similar issues are true for the remaining ones as well.

 

[AEM]

But that was still in relation to action by the federal government. It had no bearing on intrastate practices.

 

[Denny Crane]

Ah, but the nature of ratification of the constitution was a series of compromises. A not so well popularized one is the compromise over slavery - no new slaves imported after ~20 years and the 3/5ths that gave slaves representation and gave incentive to slave states to free the slaves to get the whole 5/5ths.

Similarly, it is well known that Virginia had a clear separation of church and state in its constitution. Many other states indeed did have official state religions. These provisions were phased out within 30 years in all those states.

 

[AEM]

True on both counts. Another interesting thing to note is the fact that Madison, called the Father of the Constitution, found many of his theories set aside in favor of others. (See, generally, Richard B. Morris, <u>Witnesses at the Creation: Hamilton, Madison, Jay and the Constitution</u>) In fact, much of the language of the text itself is markedly similar to the prose of Gouverneur Morris.

Of course, Viriginia's religion clause had much to do with two of it's native sons, one of whom was Madison.

 

[Denny Crane]

Madison is called the father of the constitution because he had the only blueprint for a government when the constitutional convention met.

Virginia would naturally carry the most sway because it was the most populous and its territory covered most of the south and went all the way to the west coast

 

[AEM]

Madison wasn't the only one with a blueprint. There were a number of plans at the time; his was characterized as being the most open to compromise - for which reason it was (somewhat) adopted. The term itself is something of a misnomer, actually.

 

[Denny Crane]

From what I've read, there were no other blueprints for a government until after the Virginia Plan was offered. The New Jersey Plan was to bring back the Articles of Confederation, which they had voted to do away with already. And that, at best, was just a way of the smaller states negotiating for power in the new govt.

 

[AEM]

It's true that the initial plan, also known as the Randolph Plan, was the only one created prior to the Convention. However, it was met by the New Jersey Plan a mere few weeks later. (May 25-June 15) While generally identical in effect to the Articles of Confederation, it differed markedly in that it granted Congress the right to tax and to regulate interstate commerce, as well as binding the states (including state courts) to the laws and treaties of Congress.