From: PA146008@utkvm1.utk.edu (David Veal)
Subject: Re: State's Rights
Organization: The University of Tennessee, Knoxville
Date: Sat, 23 Jan 1993 16:13:05 GMT

[This is getting both silly and nowhere.  This reply is pruned mercilessly.]

In article <1993Jan23.005519.24752@cbfsb.cb.att.com>
colten@cbnewsb.cb.att.com (marc.colten) writes:

>>>In article <PA146008.645.727558693@utkvm1.utk.edu>, PA146008@utkvm1.utk.edu (avid Veal) writes:
>>>> In article <1993Jan20.134855.12694@cbfsb.cb.att.com> colten@cbnewsb.cb.att.om (marc.colten) writes:
>>>>        Then why not let the state population do it, and leave the nation
>>>> out of it?  (Setting aside the fact you don't have to convince the nation
>>>> of something, only Congress and the President.  That's the way a Republic
>>>> works.)
>>>>
>>>
>>>To what extent do you "let the state population do it"?
>>
>>       Where the State's have authority, they get to decide to what extent.
>>Self-government is a really cool thing, you know.
>>
>
>It's cool if you are in the majority and can get to do anything  you
>want.

        Do one of two things:  Either show me where I advocated pure
democracy at the *any* level of government or please quit accusing me
of it.

>It's not that cool if the majority decides that the "extent"
>of their power costs you your liberty.

        Fine, you don't like democracy.  All well and good.  But how do
you protect these liberties you're concerned about in a democracy?

        Answer:  You can't.  That's why we have a written Constitution,
a Federalist system, and written rules regarding those liberties.  And
why we should follow those rules.

>>       Are you seriously suggesting that Bob Smith, my next door neighbor
>>and city councilman is more likely to oppress me than Sen. Congresscritter
>>who'se never met me, and may never have even been in my city in his life?
>>
>Yes, that is exactly what I'm saying.
>[..]
>To your "congresscritter"
>you are just another citizen, no more or less important than any
>other.  You assume the Senator hates you without cause, and your
>councilman loves all his constituents.  I think the reverse is
>more likely.

       I don't suggest my senator (the new one, anyway, I had my doubts
about Gore) hates me, simply that my position is pretty much irrelevent to
him.  In Tennessee, the more populous Democratic Western end of the state
(Nashville and Memphis) elects the Senators.   As a result, the less
populous Republican Eastern end of the state usually gets screwed *and
ignored*.   Essentially, because this end of the state consistantly votes
against our Reps, our opinions are pretty much irrelevant to them.
        This is good?

>>       Tennessee should not be allowed to enact laws without national
>>approval because the people in New England and and out West don't consider
>>it *important*?
>
>I'm saying that they can pass laws until they trample on the rights
>of other citizens.

       See the Federal Constitution and the Bill of Rights and other
amendments.  You have advocated discarding the entire Federalist system.
Please describe a "trampling" that can't be dealth with within that system.
As near as I can tell what bothers you is that a simple national majority
isn't enough to violate the Constitution.

>>       And again you bring up repression.  Is it your opinion State's *can't*
>>enact laws that aren't repressive?
>
>Of course they can.  They do it all the time.  but if they do
>pass an oppressive law, who will stop them if they are subject to
>no other authority.

       I think this is about as far as this dicussion is likely to go.
Please indicate where I have suggested states not be subject to the
Federal Constitution or stop using that as an arguing point.

>>       Fine, then propose giving powers to deal with that to the Federal
>>government.  Don't simply throw the rules out the window every time they
>>don't do exactly what you want.  If you do, you'll find people wanting to
>>throw *your* rules out the window.  And you'll have little basis for
>>opposing them.
>
>If the states have total authority in these areas, how would we give
>the Fed this power?  Would a minority religion have any recourse
>at all?

       Spelled out:  States have agreed to abide by the Federal Constitution.
States have total authority where not overruled by the Federal Constitution.
Thus, changes in the Federal Constitution can alter what the States have total
authority.
       If you want to protect a minority religion, fix the Constitution
so that they are protected.  It's a difficult beastie to change back.
       And I fail to see you point about a minority religion.  If there's
not enough interest at the Federal Level in protecting it to get Federal
Constitution protections, then why do you think there's enough interest
there to interefere with the states?  Of is it simply that the Federal
Government can't simply bang it's gavel and make it's will so?
       Though you obviously don't believe it, the limits on the Federal
Government are there to protect rights, and they are a good idea.


>>       If we were talking about 1840 you'd have a point.  They are there
>>today and neither my political opinions or yours will have the slightest
>>effect on what happened then.  They are there today.  The Constitution was
>>written so concerns such as yours could be address, through the amendment
>>process.  It was designed to be difficult, but not impossible.
>
>This is a dodge I see all the time.  You fight change and then say
>you agree with what been done.

       *I* fought change?  That is both absurdly untrue and personally
insulting.

>It does not good to say "The
>amendments are there."  If the US had followed your political
>philosophy all this time, the amendments would *not* have been
>put there and the evils would never have been eliminated.

       My political philosophy is not to never over-rule the states.
It is only to over-rule the states *within the rules*.  Sometimes there
may be a good reason, sometimes not.
       Why do you assume I wouldn't have thought those amendments a good
idea?  Becuase I favor following the Constitution?  A Constitution which
*allows* over-ruling the states?

>>       Do you believe the Federal government, which was created by the
>>Constitution, should be required to abide by the restrictions therein on
>>how it may and may not interefere in State business.  Or do you believe they
>>should be able to make up whatever rules are convenient (or poltically
>>possible) at the time?
>
>The idea of what power the fed is limited to is always subject to
>interpretation. Sometimes, I think, with sinister intent.

      I am beginning to get tired of insults and insinuations.

>Take
>Barry Goldwater, for example.  When black children were being denied
>a public school education he said that he was personally opposed to
>the practice.  However, he said, the fed could do nothing since
>the Constitution did not mention education as an area to be controlled
>by the fed.  I still think a man as supposedly intelligent as he
>was was deliberately trying to blow smoke in peoples eyes.  But lets
>take his example:

       There is a difference between "The Constitution does not allow
interference here," and "The Constitution should not allow interference
here," *and* "The Constitution can't be made to allow interference here."

>So I ask you - since the constitution does not mention medical care -
>can a state simply deny a particular (tax paying) group access to tax
>supported hospitals?

      Equal protection.  *AGAIN*.

>It does not mention airplanes - can they be denied
>access to airports?

       Private airports, yes, by the owners.  State airports, no.

>It does not mention driver's licenses - can they
>be denied them?

       It mentions that all citizens shall be provided equal protection
under the law.

>>
>>        Because the Federal government was *created* by the Constitution.
>>The rules for its functioning are there.  With that creation the Federal
>>government and the states agreed to abide by certain rules.  That is the
>>Rule of Law.  If the Federal government can simply ignore the rules that
>>gave it its power in the first place, the rule of law is gone and we have
>>nothing but rule by force.
>>        It would be like you and I making a contract that I will pay your
>>some money for a service, then later throwing contract aside and demanding
>>you do more for me for no more money.  We've agreed to abide by certain
>>rules and I am then breaking them because I think it's an OK thing to do.
>>Would you really accept my orders without question, or would you scream
>>bloody murder because that wasn't in the contract?
>>        The difference is that the State's agreed to abide by the Federal
>>constitution, not Federal whim.
>
>Amazing - all that talk and you didn't even *pretend* to answer my
>question.

        Your question was what the difference was.  I answered that.  The
difference is that if there is no granted power, one is legal and one
is illegal.

>Since you harp on the issue of constitutional amendments
>throught your message, I'm going to simply refer you to the footnote
>at the end in which I address your supposed agreement with the
>amendment process.

      *Sigh*

>>>In case you didn't see that in a previous message, I saw a Reagan White
>>>House official (Bruce Fein) advocate allowing states to declare on
>>>religion as the "official State religion".
>>
>>       So what?  Bruce Fein (under the Constitution at least, but I wonder
>>about your proposed system) has neither the power to make law nor even make
>>Executive policy.  Such a power would require that amendment process that's
>>so difficult to do.
>
>>>There are a number
>>>of other rights, many that do not affect me.  Restrictions on Gays,
>>>and other minority groups for example.
>>
>>       Equal protection, again.
>
>So explain all the states that choose to attempt just this. They
>obviously think that they have that right.

       Then the Federal Government should step in *when the Federal
Constitution is being violated*.  There seems to have been some problems
in that area, though.  It doesn't appear to want to.

>>       Read the Constitution, Marc.  It *reserves* power to the States.  It
>>neither lists them nor grants them.  See the tenth amendment.  It is the
>>Federal goovernment which is granted powers in the Federal Constitution.
>>State's are granted powers in their State Constitutions.
>>       And it is irrelevent whether things did not exist prior to the 18th
>>century.  That's what an amendment process is for.  To adjust the law.  The
>>law has been adjusted.
>>       Proper state functions are defined in State Constitutions.  The
>>Federal Constitution only grants power to the Federal government and forbids
>>powers to the States.
>>
>If "proper state functions" are defined in (50) State constitutions,
>then there is no limit to what they can do.

       When not over-ruled by the Federal Constitution.

>>>Amounts to the same thing.
>>
>>       It does?  I advocate allowing a State to function where *the
>>agreement it signed off on* allows it autonomy.  You are suggesting that
>>that agreement by summarily dissolved in favor of some national "good
>>will" which will safeguard rights without any restrictions on government
>>whatsoever.
>
>No - you are allowing virtually unlimited state power within areas
>that are undefined (merely "reserved" to the states).  I am
>advocatings limits to that to preserve the rights of citizens.

       It is unlimited where undefined.  But there are plenty of
protective definitions in the Constition.

[Re: Japanese internments...]
>If the states are always as good as you
>think - why didn't they raise a peep?

      Neither did the national majority, on whom you hinge your hopes of
protections.  In fact, in the end it was the national mechanism not
the States which acted.  If one state had tried, they could simply have
moved elsewhere, if the Federal Government chose not to step in, which
it could have done in that instance.  When the Feds were involved, though,
there was nowhere to go.
       Finally, I've never suggested the States are "so good," merely that
I prefer power to be as close to home as possible, where the politicians
are more directly responsible to the people they affect.

>>       Yes, it's a bad example, because it was implemented by the
>>governmental body you want to be responsible for your rights without even
>>having a written agreement saying what your rights are.  They *had* that
>>agreement then, and it didn't help.  How do you figure things will be better
>>if the Constitution is thrown out the window?
>
>I just answered that one.

       Subjective definitions and powers aren't going to protect anyone.
We've had enough problems with the objective lists.

>>>As for Tennessee enacting stiffer standards - why would they do that?
>>
>>        Read up on Champion paper mill in North Carolina.  The question,
>>though, isn't why, but what if.
>
>Give me a reference and I'll look it up - year, who covered it?

       The trial was last year.  Champion claimed, successfuly,
that it was protected with the variances it was given by the EPA, and
thus was not liable for any damage it did.

>>        Yet a company in California and Arizona, not wanting to bother with
>>two State legislatures, lobbies successfully for a national law setting
>>safety standards which over-rides state laws.   They didn't care about
>>Tennessee, but Tennessee's laws get squashed any way.  That's the problem
>>with national laws.
>
>Reference again and I'll read up on it.

       The second was a "what if", much like your own "what if they outlawed
x religion?"


>>        That's why you *have* a Federal government, and why there are rules
>>governing its behavior.  I'm not advocating getting rid of it,  but making
>>it follow the rules it has agreed to abide by.
>>        And the argument that the Constitution is old doesn't wash.  *EVERY*
>>Congressperson and Executive and Judicial officer swear to uphold that
>>Constitution.
>
>And yet you only allow the federal authority if the offender is in
>one state and the victim in another.

       That's the the contract that was signed.  Within the boundry of
a state, for most injuries, the State has jurisdiction.  I get the impression
you want the Federal Government to be able to *take* jurisdiction whenever
it doesn't like the outcome.

>This allows a wide latitude
>for states to victimize minorities in their own state (who must
>develop a "thicker skin" as Judge Hand suggested).

       Minorities are in a bad position in any sort of democratic society.
Part of the Constitution is designed to protect minority rights from the
majority.  How do you expect to protect the minority rights from the
majority in a democratic system with no such written protections?

>>        Do you really not see the difference between limited Federal power
>>and unlimited Federal power?
>
>Yes I do.  do you see any difference between limited State power and
>unlimited State power?

       Yes, and if I was even advocating unlimited state power you might
have a point.  The states are always subject to the Federal Constitution.

>>>You many have "moral or ethical standards".  Your legislators may
>>>have them (I hope so).  But your "state" is a piece of real estate
>>>filled with people.  As such it does not have such human qualities.
>>
>>       You may pick-nits all you like, but the State legislature still makes
>>decisions with moral and ethical character to them.
>
>By what magic does your State Legislature fill up with moral and
>ethical character that is denied to Federal legislators?

        None, but there's more likelihood I can get my views across to them,
which makes things better from my point of view.  You seem not to object
so much to the system, but to the democratic aspect.  Any sort of democratic
system puts the minority at a disadvantage.  That's why you have written
protections and require the government to abide by them.

>>        And how does this change at the Federal level, except that you have
>>no higher authority to appeal to, especially if you are ignoring the
>>Constitution.  Essentially, the finally authority becomes the legislature.
>>That was a specific thing we got away from when we seperated from Britain.
>
>Yes there is no higher appeal from the Supreme Court - but that allows
>citizens several levels of appeal that you would deny them.

       There is always a final level of appeal to the Feds, through the
amendment process.

>And what is the "specific thing we got away from when we
>separated from Britain"?  That the legislature is the final authority?
>Are you for or against legislatures making laws?

      To a great extent, Britain has basically an unlimited legislature.
I am perfectly willing to let the legislature make laws, but a *limited*
legislature.  A legislature which has no power in an area can't violate
rights in that area.

>I'm not ready to dissolve the Republic yet.
>>
>Aren't you?  The Republic was born with the constitution.  You are
>advocating a looser confederation in which I, as a minority citizen,
>would be helpless, subject to the whim of my state government.

        The Republic is defined by the Constitution.  You are not helpless.
You may vote.  You may advocate for your position.  You may take your state
to court.  Finally, you may petition the Congress to propose an amendment,
which if enough states agree with you can stop your states in they're
tracks.  I *am* advocating a looser union than we have no, but *not*
a looser one that the Constitution provides for.

>I've
>often wondered about the Democracy vs. Republic ideal in any case.
>Conservatives almost always bring up the fact that we have a republic
>and not a democracy - but it still comes down to who gets the most
>votes, your representative (who is pitching principles you find
>attractive) and mine.  We also have never settled one issue - are
>they supposed to think for themselves and make decisions - or are
>they supposed to find out what we think on any particular issue
>and then vote that may - no matter what they feel?

       Personally, I expect them to listen to the reasonings of their
Constituents, and then make their own decisions.  Otherwise theirs not
a whole lot "deliberative" in that particular body.

>>>If your plants are poisoning
>>>rivers that flow into other peoples water, that's no ones business.
>>
>>       If others are poisoning your land, take 'em to court.  If they're in
>>another state, take them to Federal court.  All of which can be accomplished
>>without removing all restrictions on Federal power.
>>
>Yet, under your ideal system, how can a federal court tell one state
>what to do?

       My ideal system is the following the Constitution.  The Supreme Court
has original jurisdiction over matters between states and between citizens
of different states.

>Pollution is not mentioned in the Constitution, and
>neither is waste management - sounds like issues reserved to the
>states.

        Bingo.  Although I wouldn't scream too much if the Feds wanted
to pass an amendment giving them some power in that area.

>>>It would be a shame if they forced you to have an income tax.
>>
>>       Awww.  It would be a "shame."  But that's ok.  That's the National
>>Majority, which apparenlty is magically better than the Local Majority.
>
>Awwww - are we using sarcasm instead of argument.   I used the word
>"shame" since you are so worried about changes that might cost you
>money, and I'm worried about people losing their rights and their
>lives.

       You mean I *don't* have a right to consent to taxation?  You mean
I *don't* have a right to have a say in my government?

>And here is the point at which I begin to watch for a 180
>degree turn in your arguments.

[Admonitions to read "the footnote."]

>>       If someone is doing something wrong in another state, at least
>>exhaust your options within the system before you advocate throwing the
>>system away.
>
>My options include Federal appeal - which takes place after state
>appeals have been exhausted.

       And currently may happen under the Constitution.

>>>But women couldn't
>>>vote until much later and black people found that even after they
>>>got the vote they had a lot of trouble exercising it.  So why didn't
>>>those protections work for 200 years?
>>
>>       Because (and this is important) the national majority didn't consider
>>it important enough.  They had their avanue open, and failed to use it.  The
>>protection you are asking for is there. and your national majority failed
>>you.
>
>And here's the turn around - I thought you felt the "national majority"
>was a big ugly beast picking on your poor state.

       The national majority is not an evil beast any more than the State
majority is.  However people are more likely to pass onerous laws on people
they have no contact with.  There must be a check and a limit on what the
national majority may do, just like there must be a limit on what the
local majority may do.  Which is what we have a Constitution.

>If they had
>exercised their majority over a single state would you have approved?
>I doubt it.

       Don't make my decisions for me and then condemn me for them.  The
Congress has every right to over-rule state voting criteria (within the
Constitution) and I would not suggest that their use of power was out of
line depending on what they actually did I might object, if for instance,
the decided to make it illegal for one group to vote or another to be
placed on the ballot.

>YOu might have found the federal government telling
>your state poll watchers to let people use their right to vote.

      This I would not object to.  It is both legal and a good idea.

>>      Don't be absurd.  Democratic systems have nothing to do with rights.
>>Democracy means rules by the majority, regardless of what they want to do.
>>Which is the whole point behind being a Republic, to provide a check on the
>>absolute will of the majority.  Don't confuse democracy with protections of
>>rights, because by itself it doesn't.
>>      Anything decided by majority will is by definition democratic.
>>
>This is true - so the murders committed by the nazis were democratic,
>and legal and no one's business but theirs.

       I am not a big supporter of unlimited democracy.  Nazi Germany
was primarily a fascist system in which the minority was given no
protections against the majority.

>Would you have agreed
>with view (widely held in the 1930's and 1940's)?

       No, but Germany was not, nor is it, subject to the United States
Constitution.  The Federal Government and the States are.

>And as I mentioned
>above - how does a Republic (with representatives elected by a majority
>of the people) offer any more protection?

       It offers less and less the less seriusly people take the Constitution.
A list of protections that is ignored provides no protection.

>It doesn't - unless the
>rights of the individual are protected by a higher authority than
>the local one.

       The Federal Government is that authority.  I have not once advocated
dissolving it.

>>       The national majority is still predominately Christian.  Even with
>>such a disastrous term Bush got 37% of the vote.  The majority does not
>>become flawless at the National level.  Our past two Presidents have both
>>wanted "prayer in schools."
>
>I wondered how long it would take to get to your private agenda.

       My private agenda?

>So
>let me state it for the record - so what?  I dont' care if the majority
>is Christian.  I don't care if everyone in the country is Christian
>but me.  I am a citizen and entitled to my rights.

      Things have gotten bad with a written list of protections.  You have
advocated the only protections being those the national government
feels like enforcing.  Yes, you are entitled to your rights.  But what
exactly *are* your rights, and how do you convince the Federal Government
to agree with you?

>What has your
>statments got to do with the rights of all citizens - christian or
>not?  As for the fact that the last two presidents (Reagan and Bush)
>supported prayer in schools - so what?  So they spent 12 years pandering
>to a special interest group they thought would carry them.  If
>Clinton does not support prayer in schools, you'll say "2 of the last
>3 presidents supported prayer in schools".  A president's stand on
>prayer in schools is only important to you if they agree with your
>position.

      Ok, since you need an explanation:

        A substantial portion of the national majority is Christian.
What, exactly, are you going to do if they decide to protect your right
to go to church on sunday morning - whether you like it or not?

>Footnote 1 - Constitutional Amendments
>
>Here is my question again.  You disagree with federal power over the
>states.

      No, I don't.  I disagree with the Federal Government assuming power
outside what it is granted.  I don't disagree in theory that the Feds should
always stay out of state business.

>You claim that the constitution covers all the rules to
>which the states and the fed have agreed (even in areas that did not
>exist at the time).

       All states have agreed to abide by the Constitution, including the
amendment process.  When they agree to the Constitution, they are agreeing
to abide by that.  Whether something existed at the time is not important.

> So let me ask you this - do you think that
>constitutional amendments are valid ways to change the law - and
>would you support them  - or are you simply trying to sidetrack the
>civil rights process into a long drawn out and uncertain procedure
>that would allow generations of people to be enslaved and killed?

       Depending on the amendment I would support an amendment.  While
 think the Feds have gotten out of have, I think there are some valid
things they are doing now which they should continue to do, and would
support amendments to that effect.  I won't support their powers in
those areas until then, though, no matter how good an idea it is.  If
we are going to operate under the Rule of Law, we must obey that law,
and demand those who have sworn to obey that law do so.

>From your point of view - is there any difference between the fed
>interpreting the existing constitution to allow people to appeal
>rights violations, and passing a new constitutional amendment to
>offer relief?

       I can't answer that without knowing what they are interpreting and
what their logic is.  As a general I don't support new "interpretations"
out of whole cloth, because they have a tendency to reverse themselves.

>For example:
>
>	a)  A Constitutional amendment may increase federal power.
>
>	b)  A constitutional amendment is ratified by 3/4 of the
>	    states - but is binding on all of them, even those that
>	    did not ratify it.  Isn't this the same as the "majority
>	    of states" ganging up on your lone state that you worry
>	    worry so much about?

       There's a difference between the Congress (one form of majority)
passing a law outside the Constitutional powers it has, which is not
something that States have agreed to, and passing a federal amendment, which
is something they have agreed to abide by.

>	c)  A new amendment to the constitution "changes the rules"
>	    under which a state joined the union - for example
>	    eliminating slavery.

        The amendment process is part of the Constitution, and part of the
agreement the States have made.  They have agreed to abide by the decision
of the other 3/4 states under those circumstances.

--------------------------------------------------------------------------
David Veal    Div. of Cont. Ed. Information Services Group  UT, Knoxville
PA146008@utkvm1.utk.edu   "Of course the government and the newspapers
                          lie.  But in a democracy they're different lies."
Newsgroups: talk.politics.misc,alt.politics.clinton