The Ironic Current Importance
of State’s Rights
by Jonathan A. Weiss Esq.
The United States Constitutional text does not explicitly incorporate “States’ Rights.” The first ten Amendments passed (out of twelve proposed) comprise the Bill of Rights which refer to rights remaining intrinsic to the people and the States, not governed by the Constitutional accord made by “We, the people”. Such a general recognition of both echos the Enlightenment recital of the “rights” invoked (as violated) by the Declaration of Independence. Other guarantees in the Constitution and the Bill of rights: e.g. privileges and immunities, due process, sanctity of homes (which Justice Douglas referenced with his “penumbra” and better described as implicit in a unified reading of all rights specified and/or directly inferable from them) refer to individual rights leaving the cognitive content of rights left with the States vague and arguably weak.
The Articles for Confederation failed. The Constitution, then required, clearly was not an accord between States but a Federal unified system founded by “We, the people” in an explicit Contract for specific powers to the government granted by the people with basic rights remaining with them.
Prescient though they were, neither the authors of the Federalist Papers or the Constitution allowed for the almost four fold expansion of the number of States accompanied with the extensive expansion of territory. The original thirteen States (former “British colonies”) were on one side of the Allegheny Mountains and did not extend the length of the Atlantic Coast. Then the barriers were breached. The “Americans” moved westward, with genocidal conquest and displacement of the Native Americans, an enormous land grab from Mexico, and the Louisiana purchase (Alaska, was purchased too, as a territory not to become a State until 1958.) An essential contention during this expansion concerned the legality and morality of slavery- “burning Kansas”.
The original thirteen States contained similar numbers of inhabitants. The new annexed areas did not. (Montana has less residents than Jerry Nadler’s district in New York City.) Some States have only one Congressman and two Senators. The anachronistic Electoral College has created Presidents who lost the national popular vote. This imbalance has led to legislative complications coupled with “seniority” which create laws and policies not favored by the majority in the total country, giving some small States and the entrenched South disproportionate power (with military bases and other government projects established preferentially there.)
States’ Rights, however, for States was a concept which became increasingly urged and developed as slavery came under increasing attack. Some historians consider the Civil War, not primarily based on the abolition of slavery, but rather on the assertion by States of Rights. Southern resistors called the horrifically bloody war “The War Between the States” which the victory of the Union clearly proved it was not (and accepted as not by the States with their recognition of Reconstruction Amendments) but a civil war with the rebellion, arguably treasonous. The Emancipation Proclamation, the statement of complete freedom from slavery (Juneteenth so known because of uncertain day and the title of a great Ralph Ellison novel) and the 13, 14, and 15 Amendments to the Constitution both abolished slavery country wide and established the further foundations of individual rights (implemented by enforcement statutes 42 USC 1983 et seq,)
Bad ideas often do not die. After the disastrous Hays-Tilden compromise, Jim Crow included the fraud of “separate but equal” (intrinsically incompatible) while the invocation of the phrase “States’s Rights” accompanied and justified the rise in oppression, deprivation, degradation , torture and murder in the sharply segregated South where individual rights were extinguished if a person had a “drop” of African blood (well before DNA was discovered – leading to recent startling genetic discoveries by those who are tested, some voluntarily).
When Rights Clash with Cultures
The history and atrocities are well known and documented, illustrated in big public settings by the “Dixiecrats” walking out of the 1948 Democratic convention (which echoed later in a refusal to seat the Mississippi Freedom Party). The very culture of the South was claimed to be protected by States’ Rights. (Compare the problems presented by a clash of cultural values accepted by a unified group, rather than urged by an oppressor class in that group, with individual rights – see my article Clash .
The myth of the glories of the ante-bellum South was enshrined in popular culture in books and movies (Powerful originators Birth of A Nation; Gone With the Wind) with poor rebel soldiers returning to ruins caused by “carpetbaggers and scallywags”, suffering aristocrats struggling to keep noble and glorious ceremonies and institutions alive, etc. which then continued into television shows with different narratives now increasingly emerging.
The assertion of “States Rights” became a fig leaf attempt (with occasional utopian nuances of Brandeis’s claim of States being laboratories for democratic experiments) for racism in all its evil manifestations. Very few accounts in history are so well documented. The Civil Rights movement ran afoul of what it meant in violence, injury, and death. It is still invoked and justifiably decried.
These are now special times with reactionaries in power (see my Hitler-Trump article on this website). Much necessary resistance of disgusting abuses of Federal Power are now resisted by States asserting their own independent powers.
This misuse of the Presidential power to pardon (Trump has reportedly asked if he could pardon himself.) starts our list with a minor example. But he can not pardon any one for State crimes. New York is currently passing a bill to prevent double jeopardy (frequently ignored in the past – quite troubling) from preventing such prosecutions with a direct eye on the Administration.
The doctrine that a sitting President can not be indicted (based on an off hand line in an internal memorandum in the Justice Department allowing for the impeachment of Nixon’s Vice President Spiro Agnew, later internally memorialized) has no basis in the Constitution (Indeed the reference to high “crimes” as a basis for impeachment implies the opposite and Presidents have been Judiciary ruled to be liable in current civil actions – see Clinton).
The question might still arise whether a prosecution based on a related set of facts to the Federal crime might preclude would automatically extend the time for State or Federal prosecution – in any event, the Statute of Limitations can be legislatively extended. Many of those in the web of corruption (a few lightly sentenced in Federal Court) can be prosecuted in States depending on where their activities or corporations are located or have sufficient ties.
Preemption and exceptions are legal issues primarily beyond the technical scope of this survey. The rights of States can play an important role in these areas. California has strict emission policies, recognized as an exception in Federal law, to limit local and general pollution. Agent Orange and his acolytes want to remove that – could we not argue for a State’s right for local self protection?
New York State is working towards the releasing of Trump’s State Tax returns which would reflect the Federal Statement whose production, whose refusal, originally based on a lie of an audit which prevented (false) their disclosure, is now being litigated in Federal Courts. New York State is currently investigating charitable frauds by Trump organizations and improper family tax deductions. Across the Country’s Court dockets, groups of States are suing the Federal Government for rescinding many regulations and implementing policies that damage large groups: – consumers, workers, and the environment and health of individuals living there, etc. – often irreversibly (e.g. oil spills where there were specific safety restrictions enacted after the Deep Horizon bill) – the list for such evil acts challenged is very long, almost a new one every day, particularly if promulgated during the demonized (half African) previous President Obama. Local laws, City, and State may mitigate some of the damage if not “preempted.”
Various States have strict banking laws. These can be enforced against all the foreign illegal investment and money laundering regardless of Federal actions. Perjury in State Courts may be prosecuted there.
The United States is disgraced in front of the World for its immigration policies and inhumane treatment of those who cross the Southern Border. (Of course, the vast majority of those here without legal status have outstayed their visa time while some do essential (and mainly) agricultural work). We know, of course, that Trump has knowingly employed and mistreated “illegal aliens” who have built or maintain various enterprises associated with his name. Governors have pulled back National Guards Trump had at the border. Some cities offer sanctuary, official identification cards, even apparently driver’s licenses, housing, food, etc.) Trump has threatened, and may have partially executed, a movement of the detained (in terrible conditions) to “sanctuary cities” to punish them by sudden large arrivals of those desperately needy.
Not only has the current Administration cut back on medical assistance (and now proposing the same for food stamps) but also is trying to destroy Obamacare so as to cast about 20 million off insurance rolls. The States can and have extended Medicaid and other assistance to make up the lack – a few that is – the South rises again over poor, Black, and indigenous people.
Joint funding. by Federal and State budgets, of high speed rail in California and a desperately needed tunnel in New York’s rail system was committed. Trump (who presently forecloses “infrastructure” discussion without cessation of all the investigations which point to impeachment) has withdrawn from his share. Only the States can fund, which may prove impossible, to make up the difference.
HUD, headed by a total incompetent (whose ignorance of relevant terns led him to say “oreo” to a question about REO, thereby self-identifying), among all such in the cabinet, neglects maintenance and developments (budget cuts proposed by Trump). The leadership and funding must come from States and Cities. The prior examples suggest terrible tax burdens for the States, already targeted in the new Tax code, in retaliation for the large number of votes which led to Hillary Clinton winning the popular vote by about three million. The Education Department’s attack on public education (and even school lunches) requires State opposition and adequate funding. Consumer and environmental protections (some essential or people will die suffering) under law and regulations, have been gutted (often with relevant personnel positions left unfilled and inadequate funding). Some have been and will be challenged in Courts by the States and rectified, if at all, by allocation of resources to them in the individual States. Besides the bloated Defense Department budget, this analysis covers all the government agencies adjudicatory (e.g. NLRB) and regulatory agencies. The extent of damage is almost inestimable and will require immediate remediation by a new improved administration and more besides. (See my article on Selective Inflation on this website.)
The States (compare the Senate) are acting on their prerogatives and advancing their rights to form a major resistance to the destruction wrought and the assistance now required. States rights, once used for oppression, offers an opportunity for citizens and governmental organization to resist and persist – as we citizens must.
Dare we suggest the Department of Justice (with secret powers and files similar to the CIA – see my article on this website about abolishing that agency) and the FBI (with its Hoover history, attempts to undermine civil rights leaders and movements, invasion of privacy, dossiers, etc. coupled with the arguable great failure to act efficiently either on Russian “meddling” in 2016 election or 9/11 attacks – see my article on 9/11 crimes criminals on this website ) are being attacked by the right wing for all the wrong reasons while the “neutral” journalists defend their integrity and prosecutors praise them publicly. Recall how Barr, properly known as “cover up Barr” for his role in Irangate under George H. W. Bush’s protection of Regan, announced his friendship with Mueller of the timid report, inadequate investigation, uncalled relevant witnesses, few American defendants indicted, convicted or sentenced to the lengthy jail time implicated. failure to make proper recommendations which allowed Barr to produce a lying, Trump protecting, public description of what is damning in detail – when not redacted. (Mueller is publicly praised as one of the best embodiments of Prosecutorial methods and action in the Department of Justice.) Barr, in turn. was praised as an “institutionalist” – even as he applied and received an appointment based on a fantasy (in his application letter), that the far right wing is trying to make a reality, that the President could do anything he wanted under the Constitution. Maybe properly staffed local law enforcement would be enough in these crime areas…consider the failure of referenced “National Intelligence” before 9/11 and New York’s apparently effective security since then (in spite of idiotic Muslim surveillance.)
One wonders what would happen if the lazy self-important journalists stopped covering anything the Liar in Chief says on Twitter, and perhaps purely partisan rallies, and instead, covered just official statements and acts then to spend the time saved by reporting the universal local problems now created and exacerbated (perhaps replacing too the repetitive presentation of disasters, including weather, crimes, fires, explosions, etc.).
Perhaps, then, there would be some value and less stigma attached to States Rights functioning to make the lives of “We, the People” better.