From: colten@cbnewsb.cb.att.com (marc.colten)
Newsgroups: talk.politics.misc
Subject: Re: State's Rights
Summary: state vs fed
Date: 27 Jan 93 05:43:11 GMT
Organization: AT&T

In article <16B61951.PA146008@utkvm1.utk.edu>, PA146008@utkvm1.utk.edu (David Veal) writes:

>In article <1993Jan25.013405.7357@cbfsb.cb.att.com>
>colten@cbnewsb.cb.att.com (marc.colten) writes:
>
>>You [PA146008@utkvm1.utk.edu (David Veal)] wrote:
>>
>>>>>>To what extent do you "let the state population do it"?
>>>        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.
>>>
>>You have advocated the majority of a State passing laws that it
>>wishes. That may not be pure democracy, but it is still leaving
>>the minority with no recourse.
>
>      I advocate allowing the majority of a State making laws
>within their Constitution and the Federal Constitution.  *All*
>I advocate is requiring the Federal government to abide by the
>rules it has agreed, to and all its offices swear to abide by.
>      Recourse may be found at any level, including the Federal
>level.
>

Which is all I care about.  As long as a state is running along
treating each person fairly.  If the majority of a state decides to
take away a citizen's rights - I advocate action - even if it
takes Federal action.  If they do not - why would I even care?

>>I have more respect for Democracy then the people who wrote the
>>Constitution - they were afraid of it.
>
>       You bet they were, and so am I.  Unrestrained democracy *is*
>rule by the majority with no recourse by the minority.  Which is
>why the rules and the law are so important.
>

Very true - but the entire "Republic vs. Democracy" with or
without a written constitution issue is mostly smoke.  You can't
believe that if 99% of the community decided to do something
they would be restrained by a law or Constitution. They could just
as easily ignore it or rewrite it.

>>You wanted a republic didn't you?  You get to vote for Senator the
>>same as the other guys.
>
>       Yes, I wanted a Republic, and yes that sometimes mean my voice
>is not heard.  But a Republic also runs by rules, and I want those
>rules followed.
>

We don't seem to disagree on that - only on what the rules are.

>>You must have representatives at your end of the state who
>>are elected solely by you.  If they get outvoted in congress, you
>>should get more of them elected. If you can't, maybe you should
>>look at why their position is so unpopular.
>
>       I have one Rep.  Tennessee in general has nine.  California
>has 52.  Without a doubt Californians look at things differently than
>even East Tennesseans.  Like that income tax, thing.

Which is not debated in the Federal Congress, only your State
Legislature.  You have nine reps because you have 4.9 million
(rank 17th) while California has 29 million (#1).  It was a compromise
at the time and it might seem unfair, but what can you do?  You
might feel outnumbered 52 to 9, but that is hardly the end of
it. There are party loyalties - conservative vs liberal wings.

>
>>Still you get the
>>same chance as the rest of us.  You vote and you take your chances.
>
>       So, basically, you're telling me that *poof* the legal system
>is changed and I might as well get used to it?  That *these* are
>the new rules, tough?
>

No - but the outcome is more or less the same.  The laws are not
written in stone and they get rewritten while reps get voted in
and out.  I have not been particularly thrilled at the government
for the last 12 years.  I could make complaints too, and I suppose,
I did.  Did any conservatives listen - not really.  what can I tell
you?

>>Look, I lived under Reagan for 12 years and Bush for 4.  I voted against
>>them and my guys lost.  When I mentioned that to Republicans - either
>>on the net or in person I got a lot of "Oh, boo hoo, tough luck."
>>So what can I tell you?  Exactly what system would you prefer
>>that would fix the problem you mentioned.
>
>      I prefer the system in the Constitution, which isn't the one we have.
>You got to live with Presidents who operated *far* outside their legal
>authority.
>      And don't throw other people's words at me as justification.  If
>you'd asked me then I'd have told you they had over-stepped their bounds.
>

Sorry you weren't involved in the debates then.  No one on the right
seemed to think they were acting outside the law.  There were many
articles written at the time saying that anything they did was
right and legal and constitutional.  Interpretation.

>
>      You appear to interpret it as the Federal government having final
>veto power over the states.  That is *not* a Federalist system.
>
>>I do not accept that violating my rights as an American is a valid
>>state function.
>
>       Fine, it isn't.  And can be dealt with within the current system.
>

If it could - the Fed would never get the chance to do anything about
it.

>>You talk like you think that the States should be subject to the
>>Federal Constitution but I haven't found an area that you think
>>is within it.  You had no problem with unequal education,
>>religious abuses or any other.
>
>       I beg your pardon.  This is a gross distortion of what I
>have said, and perhaps downright wrong.  I have replied to virtually
>every one of your examples of minorities being singled out as probably
>violating the equal protection clause of the *Federal* Constitution.

The point I am making is YOU say it violates the equal protection
clause, *I* say it violates it and the fed says it violates it.
But if a state says it doesn't - they will act as if anything they
do is their business alone. The question is - who make the final
determination?  Does the Fed stand back and honor the states decision
or does it overrule?

>       As for unequal education, this *is* a state function until it
>is made a Federal one.  Currently, the people in *my* state have
>found recourse in the State courts.
>
Why is unequal education a state function?  What about the other
things I mentioned - unequal hospitals, white only water fountains,
bus seats?  None of these things are mentioned in the constitution
and could be said to be reserved to the states.  I'm glad the 
people in *your* state have found recourse in States courts - but
have they always?  What about other states?


>>Give me an example of a State
>>action that you feel the Federal Government was justified in
>>taking action on - or should have if it didn't.
>
>       The Federal Government was probably within its rights when
>it forced integration of the schools.  It was also within its powers
>(via an amendment) when it outlawed poll taxes.
>

But you just said that unequal education was a valid state function.


>> As I said before, I find it
>>hard to believe that you are sincere in advocating this position.  You
>>are so worried about a lose of State power.
>
>     You may find it hard to believe however much you like.  States did
>not agree to only abide by the amendments they ratify, they agreed to
>abide by the Constitution, of which amendments are a part whether or
>not a particular state voted for it.
>

Then how is that different from "a majority of the states" overruling
your state?

>>>       If you want to protect a minority religion, fix the Constitution
>>>so that they are protected.  It's a difficult beastie to change back.
>>
>>No more difficult than changing it forward.  About this change, though.
>>Do we write one Amendment per religion - as they are denied their
>>rights - or one who encompassing religion amendment?
>
>        Something like "No person shall be denied their rights or equal
>protection under the law for any reason based upon their religion, religous
>teachings, morals, or religous leanings," much like other amendments
>

I'd vote for it.  Why is this so outside of the current system, though,
merely as an interpretation of the rights we all assume we share,
regardless of our religion or other issues.

>>Corporate "you" - although I feel that you would be sympathetic to
>>them.
>
>       I do not appreciate the insinuation that I am either a racist
>or a bigot, thank you very much.
>

I apologize.  I usually don't insinuate without evidence.

>>Still - as I said - your idea of "change" would have left things
>>pretty much as they were 200 years ago.
>
>       I have repeatedly said I support some ideas being incorporated
>into the Federal Constitution.  I do not oppose changes *simply*
>because they are changes.  In fact, if I had my way the rights listed
>in the Constitution would be much broaded and damn near absolute.
>

I really don't think that civil rights were incorporated into the
constitution simply for changes sake - it was in answer to some
real evils.  I'd like to see our rights broadened as well, although
damn near absolute leaves a lot of things unsettled.

>>The
>>constitution was to restrict the federal government while they
>>did just about anything they wanted.  This kind of opposition
>>continues today.
>
>       That description is more accurate of the Articles of
>Confederation.  The Constitution has considerably more teeth, but
>teeth for only certain things.
>

It seems to have been inadequate.

>>What it really boils down to is "The Constitution was not meant to
>>allow changes in areas I [Goldwater] don't care about."
>
>        The Constitution can be changed.  Opinions on whether it
>should be were varied and put aside to get something done.  The
>point is that it can be done.  That's the law.
>

That's true.  I simply find Goldwater's attitude pretty frightening.
What else would he simply have allowed?

>>Segregated schools, again.
>
>       I can't help you if the Federal Courts failed to enforce what was
>written in the rules.  They don't generally agree with me either.  What
>*do* you want?  *I* don't agree with segregated schools.  The Federal
>government, which you want to be your avanue of recourse, *did*.  Yet
>you lay it at my feet.

The point I am making is that without the Fed, we'd still have it.
Do you really believe that the state governments would have given it
up and changed a system that they thought was the law of the universe?

>       That a protection was not enforced does not mean the system
>was incapable of enforcing it.  It means the system chose not to.  And
>all the Federal power in the universe wouldn't have changed that.
>

All that was required was the will.

>>>       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.
>>
>>Which is what they have done - and you seemed to have a problem with
>>that.
>
>       I have a problem where they take state powers from the states.
>The Federal Government has done an adequete job (with notable acceptions)
>of stepping in when rights are violated.  But they have, at the same
>time, over stepped their bounds as far as powers go.  While there may
>be a legitimate Federal interest in integrating schools, funding and
>other regulations are not.
>

This is the part where we keep going back and forth, endlessly.
You have trouble with them taking State functions, yet agree,
sometimes that they needed to step in.  It's a matter of
interpretation, and it's not getting us anywhere.


>>And yet they are not defined, just reserved.  Where in those undefined
>>unreserved areas - like education, health care and such are the
>>protections?
>
>        There are definitions, such as voting rights.  As far as the
>Federal government is concerned, education and health care are not
>addressed.  The Federal Government can't order the states to provide
>for your health care of education.  Such things are for the State
>and it's population to decide.
>

And (back to the main question, again), what if your state decides
that "education" covers segregated schools, and "health care"
covers white only medical care - then what?

>>As I pointed out (more then a few times) this does not fit with your
>>view of federalism.
>
>       I beg your pardon?  Are you actually *telling* me what my
>view of Federalism is?  I think perhaps you are taking what others
>have said and generalizing it to me.
>

Might be true - and yet in this message alone you have allowed
that certain areas are valid state functions even if minorities
are discriminated against.  Is that your idea of federalism?

>>That is really the problem.  The opinions of the local majority is
>>life and death to them.  How would I feel living in an area where
>>we were .000000000002% of the population. That equals zero
>>representation where emotions could, and have, run high.
>
>       Basically, you are hoping that others, elsewhere, will be
>concerned for your welfare as an abstract concept.  I'm sorry, but
>that doesn't fit what I know about human nature.
>
When it comes down to that, like in Germany, it's all you can do
to hope that someone will help.  If not - you die.  And your
rather jaundiced view of human nature - you have a point. But
when people choose to do something - it's nice to have the tools.
 
>>I want the federal government to protect the rights of the individual
>>whether they are being oppressed by someone in their state or another.
>
>       All well and good, I suppose, but you've just opened the door
>to incredible government abuse.  (And the government *is* capable
>of abuse.)  Essentially, for it to do this, it must have power
>*everywhere* with no restrictions.

Considering the level of State government abuse, I have to tell you 
I've never lain awake nights worrying about the Fed.  It's true
that there are people who do that - but I grew up seeing the State
abuses.  I really don't think that you need a 100% dictatorship
at the Federal level, just the authority to protect the individual
when they are set apart from the other state citizens. 

>>>       There is always a final level of appeal to the Feds, through the
>>>amendment process.
>>
>>Again with the Amendment process?  That's not much of an appeal, at
>>least not in the victims lifetime.
>
>       Amendments do take years, but not lifetimes.  Two or three is
>generally the average.  But you can always propose an amendment now
>to change the amendment process while there's time.
>

Some take 200 years, look at that one that just passed!  If that
had been about abolishing slavery we'd still have it.  Some never
make it, like the ERA.


>>As I have said many times before (and yes this *is* getting monotonous)
>>The degree of union is subject to interpretation.
>
>       I don't know how you can possibly "interpret" the tenth amendment
>any other way but reserving unmentioned power to the states.  Explain this
>logic to me.
>

It reserves "unmentioned" power to the states - but we keep getting
into the same areas.  It doesn't mention television - can the state
pass a law forbidding black people to own them?  Is a state
law forbidding black people to own TV's a "reserved television
power" or a discriminatory law actionable under "equal protection"?
I don't see how it could be both.
  

>>I disagree.  It is the minority close by that is usually oppressed.
>>As I said in the section you deleted, they are the ones who seem
>>like the great threat to your "way of life".
>
>       Tell me, Marc, what exactly *is* my "way of life" that I would
>grind others under my heel to protect?
>

I have no idea what your "way of life" is, I don't know you.  But
to some people it is white supremacy.  To others it is male 
supremacy.  To many it is straight supremacy.  In any case - it is
these issues, the day to day way we live our lives and who we wind
up sitting next to on the bus that really hits home.  To give you
an idea of how people think about their "way of life", let me
tell you about the most incredible photo I've ever seen.  It was
in an old LIFE magazine and if made into a roadside billboard would
have done more to end segregation than anything else. It was a photo
taken in a hospital of a rack holding three thermometers. They 
were marked "WHITE", "NEGRO", and "RECTAL".  Somehow not using the
same oral thermometers as a black person was very important to
them.  I'll leave the logic of the rectal one to greater minds
than mine. 


>>What if the election was a state election -
>>does the federal government have the right to ensure local voting
>>rights.
>
>       Yes, under the 15th, 19th, and 26th amendments in the cases of
>race, gender, and age.
>

I guess gays, redheads and southpaws are out of luck until they get
three more amendments passed.

>>The people at the State Level thought that federal protections assured
>>them to do whatever they wanted.  They took that very seriously.
>
>       In some cases they were wrong.  Just like the Federal government
>is often wrong about granted powers.  Which is why we must be prepared
>to tell them both when they are wrong.
>

And who will tell them?  the States think they are right, the fed
thinks they are right.  Stalemate?

>>>>I wondered how long it would take to get to your private agenda.
>>>
>>>       My private agenda?
>>>
>>	1) The national majority is predominantly Christian
>
>       Factually correct.
>
Yet completely irrelevant - so why even mention it?

>>	2) Past two presidents wanted prayer in schools
>
>       Also factually correct.
>
Even more irrelevant.

>>	3) Your sneering at the laws that pushed Christianity
>>	   at the expense of non-christians
>
>       I have "sneered" at no such laws.  That was another poster,
>the one with the username zygote@.
>
This is what happens when you have to save a
600 line message, download it to a PC, load into a word processor,
delete obsolete lines, add new information, dump it to ascii,
upload it to the server and get it in as a feedback to the correct
message.  It is entirely possible that I mixed the messages.  If
you are not the one who said that Sunday Blue Laws which were a
burden on non-christians only meant that "so you can't buy hardware
on Sunday - so what?" - I apologize. 

>>	4) Your insistence that your State legislators have a
>>	   lock on "ethical and moral" behavior
>
>       You have interpreted incorrectly what I said.  I suggested that
>they make ethical and moral decisions, not that they had a monopoly on
>the subject.
>
And yet, are they 100%?


>>Are things all that bad?  I really think all your doom and gloom
>>is misplaced.
>
>        My state has what is an effectivelly federally mandated
>speed limit.  I can have my home confiscated under federal law if
>someone brings a controlled substance into my home and leaves with
>it, all without my knowledge.  I am required by the IRS to give
>testimony against myself or risk summary confiscation of my property
>and a prison term.  My right to self protection is under constant
>attack at the Federal level.  I can be arrested and detained for fitting
>a "profile" which includes both carrying large amounts of cash and
>not carrying large amounts of cash.  (In fact, a federal court has
>said just *having* a large amount of case was probable cause to have
>it seized.)
>

My mistake - we're doomed.  On the other hand, Rodney King didn't
do too well at the city level.  And the millions of people who
were slaves and were later denied basic rights didn't do too well
at the state level.  I have no problem fighting abuses at any
level - but let's not ignore the contribution the fed has made
in rights cases and could continue to make.

>>As for my rights. I don't have to convince the
>>Federal Government to agree with me.  All I have to convince them
>>of is that I am no being given the same rights as my fellow
>>citizens.
>
>       You must convince them to do something about it.
>
Only if I am being abused by my state.  No state abuse - no 
federal appeal.  If they help, you can be saved.  If not,
- and a very conservative court shows little inclination to overrule
the states (they just decided that being innocent is not enough to
stop an execution if the state has already decided you should die) - 
you are no worse off than you were before.

>>As I've said - I don't care if the majority is Christian. I do
>>not need the right to go to church on Sunday morning.
>
>       You should care, because the majority influences Congress, and you
>might not like what Congress may do in the absence of concrete limits
>on its powers.
>

Yet those concrete limits would effectively let my state (majority
Christian) decide I didn't have the right to go to Synagogue on
Saturday.  

>>As a Jew I would not be going to church on Sunday morning.  I need the
>>right to practice my religion, or none, without having another
>>pushed on me.
>
>       True, but only if the Congress decides that is your right.  With
>unrestricted powers, who *knows* what they'll do?
>
And with no powers - who can say what the state might do. After all,
they've done it time after 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.
>>
>>Yet you can't expect an amendment when the radio was invented and
>>the car and the plane.
>
>       Sure I can.  Or they are state issues.  That's the law.  If
>it is inconvenient, we must change it.  A law mutable based solely
>on the current convenience isn't worth the paper it is printed on.
>

As my example before showed - if television was invented and a state
decided that Black people shouldn't own one (they might get ideas),
the state could ban their ownership since Television is not 
mentioned in the Constitution.   So by some process (opposed by
the states banning the sales) they pass an amendment. Then color
TV comes in.  The states bans color tv sales - says it's different,
and if anyone says the old amendment covers it - well that's just wrong
because it's an interpretation they dont' share.  I know, way off,
right - but I see it as a process that would stall time and again
and leave many people without rights. And please don't keep typing
"14th amendment" and "equal protection".  Either they cover
everything (even discriminatory laws on TV sales) or they are
worth nothing and and amendment is needed on each new issue.


>>I don't see them out of "whole cloth".  To me the entire civil
>>rights movement comes out of interpreting "All men ..." as black
>>as well as white, women as well as men.  The rights were very
>>clear but were restricted to the majority.
>
>       By the majority.
>

Very true - a majority of the state.  Did that make it right,
legal and constitutional?


marc colten


PS:  This is taking up more and more of my time (it's 12:30 am now)
     and is getting us nowhere.  If you agree to disagree, fine,
     and we can let it go.  If you want to answer what I've said 
     above, for whoever else is reading this, please do.  I'll read
     it, but probably let it go.
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