It's All About States' Rights

"Every time you have an occasion to take something from the federal government and send it back to the states, that’s the right direction."
- Republican front runner Mitt Romney, GOP New Hampshire Debate, June 13, 2011

If the recent Republican debate in New Hampshire was any indicator, we suspect that you're going to hear the phrase "States' Rights" quite often between now and next year's election.  During the debate, all 7 of the candidates on stage echoed similar statements like the one from Romney quoted above.  And this probably comes at no surprise since conservative candidates have been advocating for "States' Rights" for quite some time. There is a common belief among conservatives/Republicans that Federal government is inherently bad, but that State government is somehow inherently good.  But why is that?  Where did this notion come from?  Is it a valid argument?  What does this "States' Rights" phrase really mean and how has it affected our day to day lives over the years?  We take a more in depth look at these questions after the jump:


The Law:
In the United States of America, our government is split between two sovereigns: one at the Federal level and one at the State level.  The Federal government represents the unified interest of the entire country, whereas each State government, of course, represents only itself.  The Constitution dictates that our Federal government is a government of limited powers, meaning that each action that it takes or law that it writes must be tied to a specific provision in the Constitution; if it's not spelled out in the Constitution, then it cannot act.  The States, on the other hand, are governments of almost unlimited powers, meaning that they can take whatever actions they want and write whatever laws they want, so long as those actions or laws are not specifically reserved for the Federal government in the Constitution or prohibited by the Constitution itself.  This concept is embodied in the 10th Amendment to the Constitution and forms the basis for the common phrase "States' Rights." As a final point on the law, the Founding Fathers, in their infinite wisdom, foresaw that there may come a time when the two governments may bump heads.  In such an event, the 2 governments need to know which of them has the last word.  Thanks to the Founding Fathers, we have an answer to that question: The Supremacy Clause.  It is a clause in the Constitution that basically says that whenever there's a conflict between the two governments, Federal law trumps State law every day of the week and twice on Sunday.

The History:
Knowing the basic legal framework of our 2 governments is all fine and dandy, but this doesn't tell us how the issue of States' Rights has played out in real life.  What many Republican Presidential Candidates conveniently gloss over is that the States' Rights issue first became controversial during slavery.  Many school kids are taught every year that the United States fought the Civil War because some people in our great nation recognized (and rightfully so) that slavery was immoral.   While there were some White citizens who did feel that way back in the 1800's, the majority of them actually did not care about Black people having equal rights.  Even Abraham Lincoln, who is celebrated as the man who "freed the slaves," drew a fine line in the sand between (A) freeing slaves and (B) actually accepting Black people as equals.

The true reason that we fought the civil war was far less noble than what many of our middle-school history books commonly report.  The full story is that we fought the civil war in part because (1) the U.S. acknowledged the tremendous loss of revenue that would be realized if the Southern States seceded from the U.S., but (2) the main issue that pushed everything over the edge and into war was the Rights of the States to do whatever they wanted to do (in this case - allow slavery) within their own borders WITHOUT the pesky Federal government telling them that they couldn't do it.  In other words, it was a battle over States' Rights.

Some States, primarily in the South, felt that their citizens should be able to own slaves.  The Federal government disagreed.  As a result, a war ensued and, after the Southern States were defeated, the Federal government crafted the 13th, 14th and 15th Amendments to the Constitution (known as the Reconstruction Amendments) in order to force the States to shape up and fly right from that day forward.  This sentiment is plainly evidenced in the language of the Amendments themselves, which are framed in the negative against the States (eg. "No State Shall...").  And this worked...for a while.

Shortly after the Civil War, however, the Southern States began to enact what would later become known as "Jim Crow" laws.  These were laws which basically separated the White citizens from the Non-White citizens in all public aspects of life: separate restaurants, separate drinking fountains, separate entrances to public establishments, etc.  These were STATE laws (not to be confused with Federal laws) that basically made Blacks and other minorities second-class citizens.

At some point during the 1950's and 60's (aka, the "Civil Rights Era") America, as a nation, came to the general consensus that racial segregation was no longer acceptable within a society that claimed to be civilized.  This consensus was sparked by the Federal Supreme Court decisions against segregation (Brown v. Board of Education) that were handed down by the Warren Court in the 1950's, and it culminated with Dr. Martin Luther King Jr.'s march on Washington and the Civil Rights Act of 1964.  Despite this national consensus at the Federal level, some of the Southern States argued that it would be a violation of States' Rights to force racial integration in their schools and public establishments.   George Wallace, the Governor of the State of Alabama, famously delivered the message "segregation now, segregation tomorrow, segregation forever" during his inaugural address in 1963. Governor Wallace and other State governors and elected State officials consistently framed the issue of segregation as a "States' Rights" issue, arguing that the Federal government had no right to force its policy of racial equality onto the States even though the 14th Amendment clearly stated then, as it does today, that:

"No State shall make or enforce any law which shall...deny to any person within its jurisdiction the equal protection of the laws."

States' Rights Today
Returning full circle to Romney's quote above, we can see that the Republicans continue to embrace the notion that more powers should be stripped from the Federal government and given to the States.  This may sound like a great idea for conservatives because most conservatives tend to be in the majority (aka White) and would likely stand to benefit from such measures.  However, for those people who happen to be minorities in this country, history has shown us time and time again that minority interests are not served by allowing elected officials at the State level of government to rule as they see fit without regard for the Constitutional rights of all people and not just those in the majority.  The Constitutional rights of the people must be enforced and protected by the Federal government, despite State interests to the contrary.

By way of example, abortion is legal in this country because the Supreme Court (aka the Federal government) has ruled that the States are not allowed to infringe upon a woman's 14th Amendment right to privacy; no State is allowed to make a law that would bring back Jim Crow lunch counters because the Federal government has declared such an act would be illegal under the Civil Rights Act of '64; and States are not allowed to refuse the right to vote to certain minorities because the 15th Amendment strictly prohibits the States from taking such action.  These are but a few examples of how States' Rights must yield to Federal interests.

When people like Mitt Romney talk about increasing States' Rights, they are pandering to a crowd that would like to see less Federal government regulation.  In theory, limited Federal government is a good idea because it allows the States to govern themselves at the local level and solve their own problems.  In practice, limited Federal government allows the States to get away with whatever it is their respective leaders feel like getting away with, which blindly assumes that State officials will do what is in the best interest of all people, and not just those who look as they do or agree with their particular ideology.  As history has taught us, such assumptions are often misplaced.

TSA Pats Down Six Year Old Girl

I was going to write out a very long essay explaining why I think these TSA searches are demeaning, illegal and unconstitutional. Many of the TSA's processes need to be stopped for good.  But honestly I  (a) don't have the time, (b) am far too angry having watched that smirking saurian Napolitano defend the practice on MSNBC's Morning Joe and (c) think that this video and the parent's statements tell the truth of what all this is about far more than I ever could hope to do.

“Nobody likes to see those kinds of things, in we doing that even though it was done professionally according to the protocols,” Napolitano said. “But, what TSA is doing is reexamining those protocols all the time. It’s all in relation to threat – what is the threat? And one of the things we do see is if you categorically remove a group from any type of screening, well those who seek to do us harm will then exploit that group. So you have to be very careful on how you do it.”

BS!!!! This is a big heaping pile of BS. And it stinks.

The whole issue with the 9-11 attacks and attempted attacks since then is that they have fundamentally and perhaps permanently altered our ideas about guilt and innocence and which is more important to find. Additionally they have tragically reduced people's interest in freedom and increased their interest in so-called security. This goes far beyond left and right. It's about who has interest in freedom and who does not.
To live anywhere is to accept risk. This week, somewhere in this country a mother is abusing her children. Some young man is going to shoot some other young man. A woman will be raped. Someone will drive drunk. Someone will get into a fist fight at a bar. Someone is abusing their spouse or planning to have them bumped off for the insurance money. As I am writing this some nut could come shoot up the place. Someone is turning a blind eye to worker safety in favor of profit. Someone is planning what she thinks will be the perfect embezzlement. Someone is robbing a liquor store and shooting the owners. And so on.

Generally speaking, we don't allow the police to fan out and break into people's homes they THINK will commit those crimes and search for evidence. With a few exceptions, we don't allow police to search people walking down the street just because. And we certainly don't base our justice system or everyday rules in society on the theory that it is better that 10,000 innocent people have their rights violated than let one guilty man go free. The government can not provide 100% security. But it can strip you of your rights.

Eventually, some determined terrorist will hide a bomb in his or her body cavities. What then?
Does this mean every other citizen, regardless of age, gender, or personal beliefs about privacy must then submit to public cavity searches?  Free prostate exam/pap smear with every 5000 miles flown??
This is ridiculous. The TSA should be severely limited in these sorts of searches. I would much rather see a honest debate about current immigration policies- i.e. is it really a good idea to allow immigration from countries we are currently bombing? The example of Faisal Shahzad would seem to indicate that maybe, just maybe it might not be. You can not invade the world and then invite the people you've invaded to come to your country. Some might hold grudges. Some hail from places where grudge holding is damn near a statutory requirement of citizenship.
If that girl in the video had been my kin I don't think I could have tolerated that.
The TSA needs to be forced to stop these searches. I don't care about the possibility of attack. There are some rights which are simply fundamental. If we are putting our hands down the pants of six year olds, it is WAY PAST time to reject this entire paradigm.

What do you think? Is the TSA doing the best it can, or is this a power grab by the exact sort of people who shouldn't have this sort of power? Should children be exempt from these searches? Are you okay with strangers feeling on you in public? How do we tell children don't let anyone touch you in certain places...except for the TSA agents, their police backups, etc.

Illegal Immigration Backlash-Coming Soon to your state?

This will be a very short post (by my standards) because I have tons more to say on this issue and want to organize my thoughts better for later discussions. But in case you missed it, there is another immigration enforcement law controversy brewing in a US state. This time it's Georgia, not Arizona. However the law is very close to what Arizona tried to do. Basically the state intends to, via its police powers, make life rather unpleasant for illegal immigrants. If someone is suspected of committing a crime the police may verify immigration status. Georgia also intends to make it more difficult for illegal immigrants to get hired.

I can't speak authoritatively on the constitutional issues although some of my blog partners certainly could and likely will. I am more interested in the political and social implications. The new Census data shows that the Hispanic population in Georgia grew 96% in the last decade while nationwide a full 22% of all children were Hispanic . Hispanics now outnumber Blacks in most metro areas.

Overall the Hispanic population grew four times faster than the US population.

In short this country's demographics are changing rather dramatically and there is a growing number of people across the board who are more than a little peeved at this. They are also convinced that it's been done via illegitimate means (i.e. illegal immigration) Of course it's not just Hispanics who are illegal immigrants but it's safe to say that's the group most partisans on this issue have in mind.

(Reuters) - An Arizona-style immigration bill cleared the Georgia legislature late Thursday and needs only the governor's signature to become law. The legislation would give police authority to question suspects about their immigration status. It would also require many private employers to check the immigration status of newly hired workers on a federal database called E-Verify. After extended debate, both the state Senate and House of Representatives passed the legislation in the final hours of their 40-day session.
Georgia Governor Nathan Deal has not said whether he would sign it. Deal supported E-Verify as a member of the U.S. Congress, said Phil Kent, spokesman for the Virginia-based nonprofit Americans for Immigration Control.

Read more here

The interesting thing to me is that even though presumably the Georgia Legislators saw the mixed results and negative blowback that Arizona received from its mostly aborted law, they went ahead and passed the bill anyway. And if you are in the US and don't live in California or New York, check around, there's a chance your legislature might be preparing some law on illegal immigrants even as we speak. People are getting very heated around this topic. Also the more states that pass laws like this, the less vulnerable any individual state will be to boycotts.

My take is that I don't think people should be racially demonized as anyone can theoretically become an American. That's different from Europe, which is also something I will write on later this month. However I also don't think it's too much to ask that people wait in line and do it the right way. I also believe that the level and amount of immigration should be up to the US, not to the would be immigrants. The US takes in more than 1 million legal immigrants each year and I think that's more than enough.

What's your take? Why do you think anti-immigration laws and feelings are spreading? Do you think the US should have open borders? Will Georgia's law face the same fate as Arizona's? Will immigration reform become a hot issue for the 2012 election? Would you boycott any state that passed legislation like this? Is this the last gasp of a dying white electorate?