Tuesday, July 28, 2009
Sunday, July 26, 2009
States' Rights, Federalism, and the Constitution
Last week was a bit of a wild right for states' rights. Most of the people generally opposed to the concept were suddenly very supportive, and accused those who usually support states' rights of voting against the idea. The cause: a gun vote. Specifically, the US Senate considered a Thune amendment to the defense bill that would have mandated nation-wide reciprocity for concealed-carry permits. In other words, when you visited other states, they'd be accepted and valid, just like your driver's license is now. I happen to think the idea is a good one, but more importantly than that, it is the perfect point to launch into an explanation of what we conseratives mean when we say "states' rights."
Despite Senator Barbara Boxer's insistence that the conservatives were betraying the principle of states' rights, I think she's wrong (as usual). When we talk about states' rights, I don't think that's the best label for the principle being referred to. I actually like the word "federalism" more. The Miriam-Webster's Dictionary of Law defines federalism as follows:
That's a great way of explaining what we conservatives mean when we use the more-common phrase "states' rights." I'll be sticking with my preferred label from here on out, but remember that whenever I say "federalism," I'm referring to the same Constitutional principle that the "states' rights" crowd does. I call it a Constitutional principle because I believe that it's a concept enshrined in our Constition by the Founding Fathers. There are probably a whole host of people better at explaining this than I am, but here it goes:
My first question for you is simply, "Can the federal government do anything it wants, or are there limits placed on it's authority?" I hope that your answer involves some recognition of the fact that we have, or at least are supposed to have, a limited federal government. If you don't understand that, please, I beg you, go read the Constitution.
Ok, assuming you got that one right, my next question is, "Where are those limits found?" The answer is simply our Constitution. Again, if you didn't know this, please go read it.
In outline format, it looks essentially like this:
Preamble
Article 1: 'Congress has power to do a, b, c, d, and e.'
Article 2: 'The President has power to do f, g, and h.'
Article 3: 'The Judiciary has power to do i and j'
Article 4: more on this later
Article 5: amendment process
Article 6: debts, treaties, oaths
Article 7: ratification process
From this, we can see that our federal government is one of enumerated powers. In other words, we've given various parts of the federal government power to do a through j and if it's k through z, or anything not in that list ....... the federal government CAN'T do it! That's what we call federalism. When the government tries to do k through z, we say that it is "unconstitutional" which is a short way of basically saying, "hey, you don't have power to do that."
Unfortunately we've been pretty lax about calling them on that lately (like since FDR took over) and now the federal government gets away with doing boat-loads of crap (like super-tankers, filled to the gunwales) that it shouldn't be doing.
The Founding Fathers were a little worried about something like this happening, so they wrote an amendment in the Bill of Rights specifically to make sure that we (and the federal government) got the point about limits on their authority. It goes like this:
Wow! Could they have been any more clear?!? Still, we managed to create plenty of Constitutional abominations like the Department of Education or Housing and Urban Development (HUD) and .. (the list could go on for a very long time, but I don't want to get sidetracked. If you're curious - and have a lot of time on your hands - read the Constitution and then compare it to our current federal budget, and try to reconcile those two with the 10th Amendment.)
Nowadays, people who actually believe in (that means that they think we ought to have, not that we actually do have - no one could be that foolish) a limited federal government of enumerated powers use the shorthand of "states' rights" or my preference, "federalism." These people are overwhelmingly conservative or libertarian. Liberals generally don't want a limited federal government. Things like the Constitution cramp their style.
During the debate on the Thune Amendment, liberals were complaining that conservatives were abandoning their states' rights principles. I think they were wrong, and here's why: Remember that "states' rights" is just an abbreviated way of saying "follow the Constitution." For example, no states'-righter would argue that the states have a right to infringe on free speech, or declare war, or print their own money. See, the Constitution grants those powers to the federal government. But they would argue that the federal government shouldn't be managing education, or health care. Why? Because the Constitution doesn't grant them that power. There is a power granted to Congress that is relevant to the Thune amendment and explains why it is Constitutional:
See, the Thune amendment wasn't trying to strip power from the states and usurp it for the federal government in violation of the Constitution. It was asking Congress to fulfill its Constitutional role to "prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." The amendment had the added benefit of ensuring that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." Far from violating the Constitution as their liberal accusers claimed, the supporters of the Thune amendment were showing fidelity to it.
I can't think of a better way to demonstrate how conservatives honor and follow the Constitution while liberals ignore it (and don't even know what it has to say on the matter of federalism).
Happily, federalism is making a bit of a comeback lately. There's the Patrick Henry Caucus here in Utah, and hopefully Montana or Tennessee will get a gun case to the Supreme Court that has real potential to put some teeth back in the 10th amendment.
In a nutshell, I think we'd all be a lot better off if the federal government got back to following the Constitution and respecting the principles of federalism that it embodies.
Despite Senator Barbara Boxer's insistence that the conservatives were betraying the principle of states' rights, I think she's wrong (as usual). When we talk about states' rights, I don't think that's the best label for the principle being referred to. I actually like the word "federalism" more. The Miriam-Webster's Dictionary of Law defines federalism as follows:
distribution of power in a federation between the central authority and the constituent units (as states) involving esp. the allocation of significant lawmaking powers to those constituent units
That's a great way of explaining what we conservatives mean when we use the more-common phrase "states' rights." I'll be sticking with my preferred label from here on out, but remember that whenever I say "federalism," I'm referring to the same Constitutional principle that the "states' rights" crowd does. I call it a Constitutional principle because I believe that it's a concept enshrined in our Constition by the Founding Fathers. There are probably a whole host of people better at explaining this than I am, but here it goes:
My first question for you is simply, "Can the federal government do anything it wants, or are there limits placed on it's authority?" I hope that your answer involves some recognition of the fact that we have, or at least are supposed to have, a limited federal government. If you don't understand that, please, I beg you, go read the Constitution.
Ok, assuming you got that one right, my next question is, "Where are those limits found?" The answer is simply our Constitution. Again, if you didn't know this, please go read it.
In outline format, it looks essentially like this:
Preamble
Article 1: 'Congress has power to do a, b, c, d, and e.'
Article 2: 'The President has power to do f, g, and h.'
Article 3: 'The Judiciary has power to do i and j'
Article 4: more on this later
Article 5: amendment process
Article 6: debts, treaties, oaths
Article 7: ratification process
From this, we can see that our federal government is one of enumerated powers. In other words, we've given various parts of the federal government power to do a through j and if it's k through z, or anything not in that list ....
Unfortunately we've been pretty lax about calling them on that lately (like since FDR took over) and now the federal government gets away with doing boat-loads of crap (like super-tankers, filled to the gunwales) that it shouldn't be doing.The Founding Fathers were a little worried about something like this happening, so they wrote an amendment in the Bill of Rights specifically to make sure that we (and the federal government) got the point about limits on their authority. It goes like this:
Amendment X: 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.
Wow! Could they have been any more clear?!? Still, we managed to create plenty of Constitutional abominations like the Department of Education or Housing and Urban Development (HUD) and .. (the list could go on for a very long time, but I don't want to get sidetracked. If you're curious - and have a lot of time on your hands - read the Constitution and then compare it to our current federal budget, and try to reconcile those two with the 10th Amendment.)
Nowadays, people who actually believe in (that means that they think we ought to have, not that we actually do have - no one could be that foolish) a limited federal government of enumerated powers use the shorthand of "states' rights" or my preference, "federalism." These people are overwhelmingly conservative or libertarian. Liberals generally don't want a limited federal government. Things like the Constitution cramp their style.
During the debate on the Thune Amendment, liberals were complaining that conservatives were abandoning their states' rights principles. I think they were wrong, and here's why: Remember that "states' rights" is just an abbreviated way of saying "follow the Constitution." For example, no states'-righter would argue that the states have a right to infringe on free speech, or declare war, or print their own money. See, the Constitution grants those powers to the federal government. But they would argue that the federal government shouldn't be managing education, or health care. Why? Because the Constitution doesn't grant them that power. There is a power granted to Congress that is relevant to the Thune amendment and explains why it is Constitutional:
Article IV
Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Section 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
See, the Thune amendment wasn't trying to strip power from the states and usurp it for the federal government in violation of the Constitution. It was asking Congress to fulfill its Constitutional role to "prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." The amendment had the added benefit of ensuring that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." Far from violating the Constitution as their liberal accusers claimed, the supporters of the Thune amendment were showing fidelity to it.
I can't think of a better way to demonstrate how conservatives honor and follow the Constitution while liberals ignore it (and don't even know what it has to say on the matter of federalism).
Happily, federalism is making a bit of a comeback lately. There's the Patrick Henry Caucus here in Utah, and hopefully Montana or Tennessee will get a gun case to the Supreme Court that has real potential to put some teeth back in the 10th amendment.
In a nutshell, I think we'd all be a lot better off if the federal government got back to following the Constitution and respecting the principles of federalism that it embodies.
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