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[Kad5]

This is the actual political theory supporting it.

http://en.wikipedia.org/wiki/Subsidiarity

Most states rightsers are fair-weather federalists though.

Switzerland might be a very good example of this principle in practice.

 

[GaimeGuy]

Two main reasons.

1: It's what the Constitution mandates. People can argue about specific applications and whether they fall under the federal enumerated powers, but the Constitution as written absolutely prioritizes states over the federal government. (And yes, I understand the government was made to be stronger than the Articles, but it was still made to be fairly weak and decentralized and was until the 1910s and then 1930s). This may no longer make sense, and maybe should be formally eliminated, but for those who still take the Constitution seriously as a legal document and therefore oaths to protect and defend it as it stands, this matters.

States' rights is bullshit. The 10th amendment has traditionally been interpreted as a useless amendment, one that neither grants nor restricts power to any level of government.

The 9th amendment has been interpreted to mean that individuals have rights as persons and as a collective that are not spelled out within the constitution. Rights which can be recognized through legislative matters or as a constitutional question presented to the courts. And thanks to the 14th amendment, these individual rights that are established and recognized by the federal government, can not be infringed upon by any government (local, state, or federal). IE: The right to privacy of one's body when it comes to abortion.

Basically, the 9th and the 14th amendements mean the federal government has the ultimate say on social policy. The states can't restrict the people in ways the federal government says it can't.

The commerce clause allows the federal government to regulate economic activity within US territories... which is a basic concept of government.

To elaborate on the power of congress to regulate...

There has not been a court ban on congress achieving regulatory goals through taxation (and that IS what the fine is) since Bailey vs Drexel Furniture in 1922, which invalidated a 10% tax on the annual profits of companies which knowingly employed child labor. But the only reason the court ruled that way is because the court viewed the law as an attempt by congress to circumvent the court overturn of another child-labor-related law from a year or so earlier.

The court even upheld a regulatory tax designed to completely eliminate bookmaking operations in 1953, and a tax that compelled states to create unemployment benefits systems for their residents in 1937.

The health insurance mandate is a regulatory excise, which congress is given power in article 1, section 8

No part of the constitution makes a distinction between congress's regulatory authority over private or public commerce. Furthermore, the companies which provide health insurance are all government-created corporations, chartered by the state governments. Though the concept of a corporation did not exist when the constitution was written, the idea that the government can regulate activity between persons within its jurisdiction has been a prevailing idea for millenia, and the same concept applies to non-personal entities.

Whether they're fining you for not purchasing private insurance or taxing you for a government-run health insurance program that you 1. Are not allowed to use until a certain age. 2. May never be allowed to use in your lifetime and/or 3. Are not required to use when you are permitted to, they are regulatory measures by congress over the territories it holds jurisdiction.

Please tell me what is unconstitutional about any of this. Please.

So basically, saying the constitution does/doesn't allow something is bullshit in 99% of cases

The constitution is a framework for governing. The laws of society dictate what is or isn't permissible. For the most part. We end up putting things like "No slavery" or "no alcohol" or, more recently, attempts at defining marriage in our constitution when they really shouldn't be addressed as such.

 

[Gotchaye]

This is the actual political theory supporting it.

http://en.wikipedia.org/wiki/Subsidiarity

Most states rightsers are fair-weather federalists though.

"Effectively" is doing a lot of work in making subsidiarity sound like an appealing thing.

A major issue with subsidiarity as practiced is that city and state governments are often horribly incompetent or corrupt. The sort of government we have only really works if voters provide appropriate incentives to politicians. However, voters have a limited amount of attention. Most people think much more carefully about their vote for president than their vote for mayor, if they vote for mayor at all. On a national level, party identification is most of what one needs to know about a politician, because the national party organizations have a great deal of influence over national politics. Most major media that people consume is national, so national politicians are always under much more scrutiny.

By contrast, no one knows anything about the members of their own city council. Smaller elections are dominated by particularly motivated groups of voters and donors, resulting in all sorts of horrible policies. Party identification is a much less reliable tool for figuring out what a politician is likely to do, and campaign promises are much less binding. Local media lacks the resources to really investigate political wrongdoing or the reach to even let people know what laws are being considered.

 

[Karsticles]

Because America is large and what may be effective legislation in Idaho may not be in Florida.

Exactly. For example, gun acquisition procedures in Chicago are not the same as gun acquisition procedures in Texas, and for good reason.

The irony is that, aside from Texas (and even that is suspected), just about every state that makes a big deal about State right are heavily dependent on Federal Government for funding.

That's because the federal government has made sure that every state needs its funding. It's not ironic at all.

 

[Evlar]

States don't have rights. They have powers. If we wish to discuss the legal extents and constraints on those powers we should call them "the legal extents of state power" or "the legal constraints of state power" rather than borrow a word- rights- that is otherwise integral to discussion of human dignity and justice.

 

[DS-61-5]

I'm getting everyone so far in one go as a last post because any time I spend writing about states rights and federalism is better spent in writing about states' rights and federalism for my dissertation on the topic. Appreciate the good conversation though.

No, just no, and it's much much simpler than you're making it.
The Civil War was the strongest federal action against state rights in the history of this country, in The Civil War there was one side that was for slavery and one side that was for state rights, it was the same side.

And come on, you read Alexander Stephens and Tocqueville but didn't bother to look at the first fucking line in the South Carolina Declaration of Secession?
Let me help you here -


Now again, I'm not saying that because in this particular case the state rights argument was used to promote something monstrous that it's always used to push bad things, in fact, I said the exact opposite of that in this very thread, but if you want to make the case the state rights is always a good thing, the best that you can do is to not mention slavery and hope no one notice.

I didn't say that the southern states didn't throw a bone at states rights, but simply that the bulk of their secession documents were about a defense of slavery, throwing whatever possible at it even if contradicting. That would include a nod to states rights as you noted....and then a complaint that northern states' rights claims were interfering in pro-southern federal power (remember the Democrats had all but frozen the Republicans and preceding Whigs out of power for decades. The South seceded before Lincoln was even inaugurated, when all he had said he would do is regulate slavery in the territories)

I don't think this is accurate. Yes, the Civil War was about slavery. But the intellectual justification for secession was not "slavery good!" The legal arguments rested on the idea that if a state wanted slavery, it had a right to it.

Also, "EXCEPT race" is a pretty big carve-out. It is absolutely bizarre to exclude racist southerners from the group of "devotees of states' rights".

Southern legal arguments were all over the map. As I said, I will concede that Virginia, Texas, and North Carolina were arguably seceding in defense of states rights, but the larger first wave/ deep south secession was rooted in a defense of slavery, with complaints that were extremely inconsistently federalist.

I agree that "except race" is a big carve out. That's why a: I said it is a case where normal rules of politics and subsidiarity may not apply, hence the specific amendment to give Congress power here but b: why I think it's not a particularly useful cudgel to illegitimate federalism, since failing the hardest test in American politics--trying to sort through the country's original sin of race and slavery-- seems an unfair and unrealistic standard that pretty much all American institutions failed. I could argue that we should enact a parliamentary system because congressional government and committees resulted in building a racial supremacist Social Security system designed to exclude black workers (see Katznelson 2005), but I don't; race in America is the faultline that breaks all of its institutions, and always has. It's also why we have made THREE constitutional amendments to empower the federal government, precisely because we acknowledge how anomalous it is.

If you're curious about what Lincoln thought of the issue (which seem to be much more relevant than trying to ascertain the opinion of a state, whatever that even mean), his message to congress in special session in 1861 is a great place to start -

True, and I'm glad you brought this up. However, read this very carefully. Lincoln is NOT arguing against states rights/enumerated powers but secession. Whether one agrees with the Lincolnian (and before that, Webster) position of states not preceding the union or not has no bearing on the enforcement of the allocation of powers as agreed to in ratifying the Constitution, only whether one can pull out once the ink is dry. As Lincoln says, "Our States have neither more nor less power than that reserved to them in the Union by the Constitution". Consider that Lincoln promised as president not to touch slavery in the south precisely because he said he had no power to do so, and hence endorsed the redundant Corwin Amendment;

"I understand a proposed amendment to the Constitution—which amendment, however, I have not seen—has passed Congress, to the effect that the Federal Government shall never interfere with the domestic institutions of the States, including that of persons held to service....[H]olding such a provision to now be implied constitutional law, I have no objection to its being made express and irrevocable."

Moreover, he and his allies then insisted on a specific 13th amendment to have that power. Why bother with that (or the later 18th Amendment on prohibition) if the Republicans could have just said, "Hey, we don't like slavery (or alcohol). It's gone." Just so Spielberg could make a movie about it?

States' rights is bullshit. The 10th amendment has traditionally been interpreted as a useless amendment, one that neither grants nor restricts power to any level of government.

If by "traditionally" you mean since Harlan Stone wrote it in dicta in Darby in 1942, sure. If you mean throughout American history, then no. It is redundant insofar as it reiterates the implicit assumption of Article I, Section 8's listing of powers: by listing the powers we agree to grant to Congress, we agree that it does NOT have every other power not listed. But saying the Tenth Amendment only reiterates a principle does say that the principle is there.

The 9th amendment has been interpreted to mean that individuals have rights as persons and as a collective that are not spelled out within the constitution. Rights which can be recognized through legislative matters or as a constitutional question presented to the courts. And thanks to the 14th amendment, these individual rights that are established and recognized by the federal government, can not be infringed upon by any government (local, state, or federal). IE: The right to privacy of one's body when it comes to abortion.

Basically, the 9th and the 14th amendements mean the federal government has the ultimate say on social policy. The states can't restrict the people in ways the federal government says it can't.

The Ninth Amendment has almost never been adjudicated, in spite of the wishes of Goldberg in the Griswold concurrence or uber libertarians like Randy Barnett. That's correct, because it is a redundant rule of construction reiterating, along with the Tenth Amendment, the doctrine of federal enumerated powers. It makes absolutely no sense to see the Ninth Amendment as incorporated against the states when it is, quite clearly, intimately attached to enumerated powers doctrine.

The commerce clause allows the federal government to regulate economic activity within US territories... which is a basic concept of government.
To elaborate on the power of congress to regulate...

Suffice to say, I don't agree with the interpretation of the commerce clause you elaborate in the rest of your post, nor the history you use to back it, but this is at least the right sort of discussion: how are the powers allocated, not whether they are (e.g. whether states rights/the Tenth Amendment has teeth)

States don't have rights. They have powers. If we wish to discuss the legal extents and constraints on those powers we should call them "the legal extents of state power" or "the legal constraints of state power" rather than borrow a word- rights- that is otherwise integral to discussion of human dignity and justice.

This is actually a helpful correction. The question is about the allocation of powers within a constitutional system. The theory is that the states have plenary/police powers to do whatever they want unless explicitly forbidden by their state constitutions, by a textual provision of the federal constitution, or by legislation enacted pursuant to one of the enumerated powers of the federal Congress via the Article VI supremacy clause. Congress, by way of contrast, has the specific powers given, and whatever is necessary to implement those specific powers. (In effect, states are seas of powers with islands of rights, and the federal government is an island of powers in a sea of rights, to use the classic formulation.) Unfortunately, Americans have largely reformulated discourse as all about competing sets of rights, instead of questioning where such powers lay; yours is a useful correction.

It's unfortunate, as the Dude Abides, observes, that many states rights people are fair weather, although as I noted in the thread on marijuana, conservatives seem to be becoming more honest on that and accepting marijuana on states rights grounds even if they oppose it on substantive grounds [http://www.neogaf.com/forum/showthread.php?p=47928224&highlight=#post47928224] Nonetheless, simply because a principle, in this case subsidiarity/localism/etc is often poorly or inconsistently enforced does not negate whether we continue to support it; we still like virtues of charity, sexual fidelity, free speech, honest elections, judicial review, etc. even if not always implemented well or without hypocrisy.

 

[Chichikov]

I'm getting everyone so far in one go as a last post because any time I spend writing about states rights and federalism is better spent in writing about states' rights and federalism for my dissertation on the topic. Appreciate the good conversation though.



I didn't say that the southern states didn't throw a bone at states rights, but simply that the bulk of their secession documents were about a defense of slavery, throwing whatever possible at it even if contradicting. That would include a nod to states rights as you noted....and then a complaint that northern states' rights claims were interfering in pro-southern federal power (remember the Democrats had all but frozen the Republicans and preceding Whigs out of power for decades. The South seceded before Lincoln was even inaugurated, when all he had said he would do is regulate slavery in the territories)



Southern legal arguments were all over the map. As I said, I will concede that Virginia, Texas, and North Carolina were arguably seceding in defense of states rights, but the larger first wave/ deep south secession was rooted in a defense of slavery, with complaints that were extremely inconsistently federalist.

I agree that "except race" is a big carve out. That's why a: I said it is a case where normal rules of politics and subsidiarity may not apply, hence the specific amendment to give Congress power here but b: why I think it's not a particularly useful cudgel to illegitimate federalism, since failing the hardest test in American politics--trying to sort through the country's original sin of race and slavery-- seems an unfair and unrealistic standard that pretty much all American institutions failed. I could argue that we should enact a parliamentary system because congressional government and committees resulted in building a racial supremacist Social Security system designed to exclude black workers (see Katznelson 2005), but I don't; race in America is the faultline that breaks all of its institutions, and always has. It's also why we have made THREE constitutional amendments to empower the federal government, precisely because we acknowledge how anomalous it is.



True, and I'm glad you brought this up. However, read this very carefully. Lincoln is NOT arguing against states rights/enumerated powers but secession. Whether one agrees with the Lincolnian (and before that, Webster) position of states not preceding the union or not has no bearing on the enforcement of the allocation of powers as agreed to in ratifying the Constitution, only whether one can pull out once the ink is dry. As Lincoln says, "Our States have neither more nor less power than that reserved to them in the Union by the Constitution". Consider that Lincoln promised as president not to touch slavery in the south precisely because he said he had no power to do so, and hence endorsed the redundant Corwin Amendment;

"I understand a proposed amendment to the Constitution—which amendment, however, I have not seen—has passed Congress, to the effect that the Federal Government shall never interfere with the domestic institutions of the States, including that of persons held to service....[H]olding such a provision to now be implied constitutional law, I have no objection to its being made express and irrevocable."

Moreover, he and his allies then insisted on a specific 13th amendment to have that power. Why bother with that (or the later 18th Amendment on prohibition) if the Republicans could have just said, "Hey, we don't like slavery (or alcohol). It's gone." Just so Spielberg could make a movie about it?



If by "traditionally" you mean since Harlan Stone wrote it in dicta in Darby in 1942, sure. If you mean throughout American history, then no. It is redundant insofar as it reiterates the implicit assumption of Article I, Section 8's listing of powers: by listing the powers we agree to grant to Congress, we agree that it does NOT have every other power not listed. But saying the Tenth Amendment only reiterates a principle does say that the principle is there.



The Ninth Amendment has almost never been adjudicated, in spite of the wishes of Goldberg in the Griswold concurrence or uber libertarians like Randy Barnett. That's correct, because it is a redundant rule of construction reiterating, along with the Tenth Amendment, the doctrine of federal enumerated powers. It makes absolutely no sense to see the Ninth Amendment as incorporated against the states when it is, quite clearly, intimately attached to enumerated powers doctrine.




Suffice to say, I don't agree with the interpretation of the commerce clause you elaborate in the rest of your post, nor the history you use to back it, but this is at least the right sort of discussion: how are the powers allocated, not whether they are (e.g. whether states rights/the Tenth Amendment has teeth)




This is actually a helpful correction. The question is about the allocation of powers within a constitutional system. The theory is that the states have plenary/police powers to do whatever they want unless explicitly forbidden by their state constitutions, by a textual provision of the federal constitution, or by legislation enacted pursuant to one of the enumerated powers of the federal Congress via the Article VI supremacy clause. Congress, by way of contrast, has the specific powers given, and whatever is necessary to implement those specific powers. (In effect, states are seas of powers with islands of rights, and the federal government is an island of powers in a sea of rights, to use the classic formulation.) Unfortunately, Americans have largely reformulated discourse as all about competing sets of rights, instead of questioning where such powers lay; yours is a useful correction.

It's unfortunate, as the Dude Abides, observes, that many states rights people are fair weather, although as I noted in the thread on marijuana, conservatives seem to be becoming more honest on that and accepting marijuana on states rights grounds even if they oppose it on substantive grounds [http://www.neogaf.com/forum/showthread.php?p=47928224&highlight=#post47928224] Nonetheless, simply because a principle, in this case subsidiarity/localism/etc is often poorly or inconsistently enforced does not negate whether we continue to support it; we still like virtues of charity, sexual fidelity, free speech, honest elections, judicial review, etc. even if not always implemented well or without hypocrisy.

Ummm what?
I read what you wrote (at least the part directed at me) a few times and I'm sorry, I have on idea what you're trying to say anymore.
You keep jumping all over the place, you go from Tocqueville to Webster to Harlan Stone to Ira fucking Katznelson, I mean shit, it's quite a simple question, I'm sure you can articulate why you think that slavery is a good example as to why state rights are a good thing in under 500 words.