Sunday, February 01, 2009

States rights post-civil war, one reason why they aren't so scary

It's actually somewhat perverse that the notion of local democracy has a bad name in the United States, but it turns out that there's a significant reason why the arguments against States' Rights are mostly wrongheaded, and that reason is called the 14th Amendment. The 14th Amendment modifies Due Process from being a concept that dealt with the relationship between Federal and State government to one that also dealt with the relation of individuals to State government. Due Process says that a person can't be deprived of life, liberty, or property without due process of the law. When applied to the Federal government it's meaning deals with the validity of federal legislation, but with respect to the States it deals with whether or not basic rights of individuals are being respected. Even if a statue on the Federal level is defeated as encroaching too much on States' rights the States still are obligated in turn not to encroach on the basic civil rights of their citizens. And those civil rights can be established by statute as well by case law or legal tradition, meaning that the basic scope of rights on the State level can be expanded significantly. What this means is that there is in fact a fail safe measure in place to protect people from abuse by States who decide to object to and to defeat Federal statutes and decisions that may enlarge the scope of civil liberties.

In fact, as Wikipedia notes, segregation was defeated on the basis of the 14th amendment. What right did the Federal Government have to send people down into Mississippi and to Alabama? They were acting to prevent a gross violation of State level due process rights, under which one law has to be applicable to all people.

So the argument that if we just let local democracy decide everything, at least in the U.S. system, people will automatically destroy other folks' rights by passing oppressive legislation isn't quite accurate. They might try, but there are mechanisms in place to defeat that. On the other hand, I'm curious about why it is that folks feel that an extended federal government guaranteeing extended rights on a federal level, and enforcing them, is a good thing? By taking away power from the States and putting it instead in a centralized Federal bureaucracy, with a single congress instead of fifty, and a single executive on top of all of it instead of fifty, you create the conditions for a sort of Orwellian total state. Our experience in the Bush years should tell us that giving power to a federal bureaucracy, whether in the name of 'security' or otherwise is a dangerous enterprise. The Department of Homeland Security and the Transportation Safety Administration are examples of what happens when you trust and entrust too much in and too the Federal government. People who feel that because of some presumed enlightened sensibility they would be exempt from persecution by such an entity are completely mistaken. If you create the apparatus it will eventually be used against you, no matter who 'you' are.

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