The Radical Center
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The Radical Center

The States’ Rights Fraud and Liberty

Republican’s are principled advocates of “states’ right” except when they aren’t. Of course, when they are and when they aren’t has no consistency to it. If they can use the law to hurt the people they dislike they will and they really don’t care at which level it happens — just as long as it serves their agenda to punish sinners as much as possible.

That’s the problem of a theocratic party running the government. More bizarrely these Christian Jihadists are the ones who panic the most over the non-existent threat of “Sharia law” in America. In fact, some of the worst theocrats, such as Roy Moore of Alabama, says Sharia law is already in effect somewhere up North, just don’t ask him to be specific. He’s also the Republican Senatorial candidate who regularly appeared on a radio show where the host calls for killing all gays. Moore refused to answer whether he himself favors killing off gay people. Of course, he had Trump’s support.

Three years ago Congress added a clause to a bill, which said the federal government couldn’t spend any money to interfere with the legal sale of marijuana in those states that chose to legalize it.

The previous Grand Ayatollah from ‘Bama, Grand Mufti Jeff Sessions, imposed as Attorney General by Trump is now pushing to get God’s Own Party (GOP) to use their control of Congress to overturn that amendment so they can start smashing down the doors of sinners who smoke pot and punishing them the way Jesus wants.

Three years ago the measure passed when the Obama Administration said they would respect the right of states to go their own way in regards to pot laws. All the Trump officials can see are sinners getting away with evil and needing to the wrath of God inflicted upon them by his servants in the GOP.

Sessions has no respect for constitutional restraints on power. He goes so far as to claim separation of church and state is unconstitutional. His successor, Moore, says religious freedom only applies to Christians, no one else. That ought to worry other Christians since fundamentalist sectarians such as Moore don’t think Catholics, Mormon and “liberals” are really Christians.

Now, there is nothing wrong with States’ rights when properly understood, but conservatives tend to be woefully ignorant about the constitutional principles involved. We saw that in action when bigot Strom Thurmond started the States’ Rights Party — which Murray Rothbard supported — and then later bigots like George Wallace misused the principle to support segregation.

Ayn Rand got it, even if the alt-Right that now runs the country doesn’t. She said

The constitutional concept of ‘state’s rights’ pertains to the division of power between local and national authorities, and serves to protect the states from the Federal government: it does not grant to a state government an unlimited, arbitrary power over its citizens or the privilege of abrogating the citizens’ individual rights.”

She saw through the rhetoric of George Wallace — Trump without the Narcissism — and warned her readers about supporting him. Rand said Wallace was not “a defender of individual rights, but merely of state’s rights — which is far, far from being the same thing. When he denounces ‘Big Government,’ it is not the unlimited, arbitrary power of the state that he is denouncing — and he seeks to place the same unlimited, arbitrary power in the hands of many little governments. The break-up of a big gang into a number of warring small gangs is not a return to a constitutional system nor to individual rights, nor to law and order.”

In pre-Civil War America the issue of the Bill of Rights, and how it applied to the States, was unsettled. The trend was toward saying the Constitution is the supreme law of the land and restrictions on government powers outlined in the Bill of Rights applied to government at all levels. Some gun rights cases had already been decided on that basis, restricting the rights of states to limit Second Amendment rights.

Of course, the separation of church and state deeply offends theocrats running God’s Own Party and they want it scuttled. So, they argue states’ rights mean states can impose Christian values on people because separation of church and states doesn’t apply to the states. Conservatives argued “states’ rights” when it came to laws making blacks second class citizens, but only a few years later, as states started allowing same-sex marriage the same conservatives demanded federal laws to strip states of any right to regulate aspects of marriage.

While states have a lot of latitude on issues belong to the states they don’t have, as conservatives seem to think, unlimited Rights.

During the period right after the Civil War Congress made explicit what was only just starting to be found in court cases — states have broad rights in legislative areas under state authority, but they don’t have the right to treat one group of citizens as if they are inferior citizens with lesser rights.

Since 1868, the Constitution explicitly said, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

A state, for instance, has control over the use of local roads and thus licenses drivers. It may say that one must be 16 to drive, or 17 or 18. But, that power doesn’t mean they can forbid women from driving, or limit driving rights to born-again Baptists only. The first set of rules don’t deny an entire class of people “equal protection of the laws” or equality of rights before the law. Anyone who is 15 will have the right to drive in a year, or whenever the local law says. If it forbade all women from driving it would be going well beyond the sort of rights states have and become an explicit attack on “equal protection.”

Similarly, as the Supreme Court ruled, it is one thing to say you must be 18 to marry and quite another thing to say only heterosexual couple may marry. The states can control local marriage laws provided they don’t overreach to the extent so they violate equal protection before the law. For instance, stating that only marriages performed in a Christian Church are valid would be a gross violation of the Constitution. Of course, states can play around at the margins of the law and, if they go too far a court case would arise and it would go through the court system to settle the matter. For instance, if Mississippi wanted to set the marriage age at 45, this attacks such a wide number of people the court is likely to step in and say marriage rights once granted can not be denied, which is effectively what the ruling on California’s Proposition 8 did. Laws set principles and courts have to look at the cases that fall in the margins.

In truth, the 14th Amendment is one of the most stellar examples of libertarian thinking in the Constitution — even if it upsets the fellow travelers of the alt-Right centered around Auburn. Libertarian legal scholar Richard Epstein — who is a genuine intellectual unlike most the Auburn ideologues — argued: “The key point here is that the state exercises a monopoly power in the use of the criminal law and in the granting of marriage licenses or tax deductions. …the situation is that the state, as a monopolist, cannot discriminate among individuals that are otherwise equal before it in all relevant respects.”

The 14th Amendment, properly understood is one of the great limitations on government power in the Constitution.

Many advocates of excessive government control argued for these controls provided they were done at the local level. A consistent libertarian, however, would argue any violation of rights is still a violation of rights regardless of the level at which it is done. If the people of Alabama decided to start executing Quakers — as the Puritans did — the Quakers in question are just as dead as they would be if the federal government did it.

The 14th Amendment doesn’t take away states’ rights, but it does limit the power of the states to violate the rights of entire classes of people. Libertarians who cherish individual rights should applaud it. Of course, faux libertarians—those who are more conservative than libertarian—want active government that hurts the people they hate — a desire they share with the alt-Right. Unfortunately they tarnish the libertarian brand when they pretend their bigotry and prejudicial view of law is “real libertarianism.”

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James Peron

James Peron

James Peron is the president of the Moorfield Storey Institute, was the founding editor of Esteem a LGBT publication in South Africa under apartheid.