"states rights"

[The Wrath]

This is something I've been thinking about for a while. Right-wingers (to include the people on this board) tend to advocate more government at the state and local level. I agree that things like traffic laws and crime sentencing should be handled by state/local government 99% of the time, but I still believe that a strong federal government should impose a high degree of regulation on state governments.

Here is my reasoning:

The purpose of the government, everyone will agree, is to protect its citizens from the initiation of force. "Initiation of force" is not something that is subject to popular opinion. It will be the same in every state. Many libertarians (small "L") want the federal government to quit regulating things like abortion and drugs and, instead, let the states decide. How can an advocate of limited government justify allowing states to ban abortion and drugs, while not giving the federal government that same authority? It seems to me that that's just sweeping the problem under the rug. I fully support the idea of the federal government overriding state governments in instances such as these.

I love Thomas Jefferson, but I think that I would have to count myself among the Federalists, if I had lived during the Revolutionary era. I'm assuming that most of you will agree with my second paragraph, but that you still will advocate the idea of most government taking place at the state/local level. Am I wrong or have I just overlooked some other issues?

[Seeker]

I tend to think that what government regulates matters more than which level of government regulates it. If people were perfectly objective, then there would be little to argue with your premise. But people are not perfect (which is why government is needed), and this fact implies a whole host of checks and balances. A meaningful federalism that permits individuals to escape from the tyranny of one state to other less hostile jurisdictions is among these. The federal goverment's main justification is military. To avoid aggregating too much additional power at that level suggests that it is proper to reserve other powers to the states.

Also, the 14th Amendment equal protection and due process clauses already do place meaningful federal restraints on the exercise of state power.

[The Wrath]

A meaningful federalism that permits individuals to escape from the tyranny of one state to other less hostile jurisdictions is among these.

I remember GreedyCapitalist using this argument when he said he believed the South should have been allowed to secede, even if they were going to keep slavery legal. I disagree for the following reason: If someone has built a happy life in one state, the government is not protecting them from the initiation of force just by "protecting their right to move to another state."

If you advocate that, you are essentially giving them two options: stay and have your rights violated, or uproot your entire life and move to an unfamiliar place. Most people would not like either option and would just rather that the government do what it's designed for and protect them from having their rights violated.

[Seeker]

Yet once we accept that a government is capable of violating rights given the power to legislate on a given subject, the alternative to having a state government do it is having the federal government do it. Which is harder to escape from then?

We cannot assume that vesting more legislative powers in the federal government at the expense of the states will always result in an expansion of individual liberty. It may be - and often is - the exact opposite. On the other hand, you seem to be suggesting a broader federal limit on state and federal powers generally, to eliminate those that are not objectively justified - a wider 14th amendment, if you will. That seems okay, but it doesn't imply a wholesale transfer of those legislative powers that are justified to the federal government, because of the danger of aggregating too much power in the hands of too few people.

Edited January 11, 2007 by Seeker

[The Wrath]

Okay, I can accept that. You'd rather the "rights-violating potential" be vested in small areas, rather than the whole country. But I'm talking ideally...if we could reform the government in a way that violation of rights becomes extremely difficult (by removing ambiguities in the Constitution, for instance), I would much rather have that kind of power centralized, rather than delegating to the states.

[Seeker]

Okay, I can accept that. You'd rather the "rights-violating potential" be vested in small areas, rather than the whole country.

... or the whole world, which is the next logical step. I think it is quite impossible to design a government incapable of violating rights. Removing ambiguities in the constitution is not a sufficient answer. How many totalitarian dictatorships guarantee individual rights on paper? Ideally, we would not need government because all persons would be perfectly rational. The need for checks and balances to divide power, not allowing too much to be centralized in too few hands, vanishes with the need for government itself. To the extent that government is needed, its power must not be overly centralized, and dividing power is necessary.

Edited January 11, 2007 by Seeker

[The Wrath]

... or the whole world, which is the next logical step.

Well, no, because that would require that we go out and conquer it. I'm not suggesting that we conquer anyone...just that we protect the rights within the borders that we already have.

I think it is quite impossible to design a government incapable of violating rights. Removing ambiguities in the constitution is not a sufficient answer. How many totalitarian dictatorships guarantee individual rights on paper? Ideally, we would not need government because all persons would be perfectly rational. The need for checks and balances to divide power, not allowing too much to be centralized in too few hands, vanishes with the need for government itself. To the extent that government is needed, its power must not be overly centralized, and dividing power is necessary.

You can't make it impossible to violate rights, but you can make it much harder. I think it would be possible, for instance, to make it hard enough to violate rights that federal control (with the only escape being to a new country) would be preferable to state control (with the choice of escaping to a new state).

[Seeker]

Such a perfect government might be possible to achieve. The question is whether it could be sustained. I think it is tremendously significant that the United States has a federal, not national, government. Citizenship itself is divided between state and federal. The balance of national and provincial tendencies and attachments, it seems to me, quite useful in preventing either from running out of control. With one exception, we haven't devolved into civil war, nor have we allowed nationalism to run totally rampant (as happened in Nazi Germany, for instance). It is easy to see the vices of provincialism and lose sight of its practical benefit. It is not hard to imagine a national government invested with undiluted legislative power soon finding an excuse for expanding that power, and for a fervent nationalism supporting that expansion unchecked. Basically I am arguing that local attachments and jealousies have the virtue of balancing national ones. Ideally, neither would exist, but once again it is man's capacity for unreason that makes government necessary, and a divided power along with it. For all its flaws I must say that the United States' federalism works pretty well - at least, it has prevented something much worse from coming along, and that's pretty significant.

I think our fundamental disagreement may be one of relative optimism versus pessimism. Optimism says that a better government is possible; pessimism tells us that certain limits are required if it is to be sustained. I am pessimistic enough about the potential for the abuse of power growing over time to want a balance of state and federal power, other changes notwithstanding.

[The Wrath]

I think our fundamental disagreement may be one of relative optimism versus pessimism. Optimism says that a better government is possible; pessimism tells us that certain limits are required if it is to be sustained. I am pessimistic enough about the potential for the abuse of power growing over time to want a balance of state and federal power, other changes notwithstanding.

This is definitely true. I am optimistic that such a government could be formed, but pessimistic about it occurring in my lifetime. In the meantime, since the federal government has refused to ban abortion, I would prefer that the states not be allowed to do so. Furthermore, if the federal government ever lifts its ban on drugs, I would prefer that it not be an issue left up to the states. These are just two examples, but I see little reason to think that the country would be any freer, if all issues were left up to the states.

[Seeker]

Some states would undoubtedly be less free, but others would have more freedom, maybe much more. One justification for federalism is that it allows group of persons to live together under public policies that best reflect their distinct philosophies. There could even be a state for Objectivists! Federalism would certainly allow that to come to fruition much more easily than if a majority of the entire country had to be persuaded.

[The Wrath]

See, my problem is that I don't think there would be a single state that would be more free than the country at large would be under a national government. The northeast and west coast wouldn't have a lot of influence from religion, but good luck trying to pay the bills under oppressive taxation...in other words, they'd be pretty much the same as they are now. The south might be relatively economically free, but you'd have cameras watching you to make sure you're on your knees with your hands clasped at least 3 times a day.

When it comes down to it, since the states already do what they want economically, I'd be too afraid of the states limiting civil freedoms. For all the crap we give the federal government on this board, it does a pretty good job at not limiting our freedom to speak and act as we wish. Many of the states would not do the same. The Lawrence v. Texas case is a perfect example of what I'm talking about.

[kufa]

Can a state or county law be declared unconstitutional? And how would one go about it?

[realitycheck44]

Can a state or county law be declared unconstitutional? And how would one go about it?

Yes. Well, kind of. It can be declared unconstitutional based on the Fourteenth Amendment. Until the 14th Amendment, state laws did not even have to comply with the Bill of Rights. And they didn't, as evidenced by the Supreme Court case Barron v. Baltimore (1833). It wasn't until 1925, in the Supreme Court case Gitlow v. New York that the S.C. ruled a state government must protect some First Amendment rights. As of now, to get a law changed, you must bring it to the Supreme Court and argue that it violates the 14th Amendment. In my understanding, you must do this every time you think a law violates your rights (as defined by the Bill of Rights).

[Edit: A rather long discussion of this topic can be found here.]

Edited January 11, 2007 by realitycheck44