From: colten@cbnewsb.cb.att.com (marc.colten)
Subject: Re: State's Rights
Summary: state vs. fed
Organization: AT&T
Date: Mon, 25 Jan 1993 01:34:05 GMT



You wrote:

>>[This is getting both silly and nowhere.  This reply is pruned mercilessly.]
>
Perhaps you meant pruned "mercifully".  Very true though - and the 
messages are getting longer.  I've done my own pruning but I think we
have reached the "is! ... is not! ... is!" stage.  Have you also
noticed that this is just the two of us.  We don't seem to inspiring
anyone to comment on what we've said.

>>>>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:

>>>>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.
>
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.

>>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?

I have more respect for Democracy then the people who wrote the
Constitution - they were afraid of it.  I'm realistic about people
and about government.  If a 98% of the people in the US
decided tomorrow that all Jews had to be expelled from the country
or killed - we'd have no protection at all.  They could take a
direct vote on it in a democracy. They could elect representatives
who advocated that position in a Republic. They could rewrite
the Constitution if they wished.  But, it's my belief that most people
are good - or at worst indifferent to the kinds of things that
a local majority deems essential for it's survival.  That is why
the constitution protects minorities - because the further afield
rights are taken, the more likely they are to be protected.

>        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.

As I said above - no system will protect you from the Majority if
they turn evil. Since they can rewrite the rules or just ignore them.

>
>>>       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.
>>[..]

You deleted my best stuff.

>>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?

You wanted a republic didn't you?  You get to vote for Senator the
same as the other guys.  If everyone goes to the voting booth like
a robot and votes for the same guy as their neighbor, I can't help
that.  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.  Still you get the
same chance as the rest of us.  You vote and you take your chances.
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.

>>>       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.

Not at all.  Once again you are implying that I hold positions that
I do not.  I accept the federalist system - but I interpret it 
differently than you.  I do not accept that violating my rights as
an American is a valid state function.  As for the crack about
"a simply national majority isn't enough to violate the Constitution"
since I am writing from the position of a minority - where would you
get that idea?

>>>       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.
>

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. 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.

>>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.

Even if they don't vote to ratify it?  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.

>       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?  

>       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?

There are already Federal Constitutional protections.  I see it as
a protection of my rights.  You see it as something that is "reserved"
to the states.  I do not need "enough interest at the Federal Level"
to take years to change the constitution to get my rights back -
if such a thing is possible.

>       Though you obviously don't believe it, the limits on the Federal
>Government are there to protect rights, and they are a good idea.
>

Unless they remove the Federal Government so far back that the
State I'm living in can do the same.

>>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.
>

Corporate "you" - although I feel that you would be sympathetic to
them.  Still - as I said - your idea of "change" would have left things
pretty much as they were 200 years ago.

>>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.

Since those rules could be twisted to allow "state religions" at the
expense of minority religions, and keeping minority children out of
public schools - under what circumstances *can* the states be
overruled.

>       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?
>

Because generations of conservatives said exactly that.  The
constitution was to restrict the federal government while they
did just about anything they wanted.  This kind of opposition
continues today.

>>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.
>
If I were insulting you, or insinuating then you might have a case -
especially if you were nothing but polite towards me.  Perhaps
you should also read the rest of the paragraph first and see that
I am refering to Goldwater.

>>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."
>

What it really boils down to is "The Constitution was not meant to
allow changes in areas I [Goldwater] don't care about."

>>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*.
>

Segregated schools, again.

>>It does not mention airplanes - can they be denied access to airports?
>
>       Private airports, yes, by the owners.  State airports, no.
>

They were denied access to state schools.

>>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.

And yet for 200 years the state's claimed that they could give
unequal protection under the law.

>>>       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.
>

Which is what they have done - and you seemed to have a problem with
that.  We haven't really answered the based question.  We have
a written constitution. The Fed uses it to step in because they
think the offense is covered.  The state thinks not.  You may think
it is or isn't.  So how do we make that determination - when the
constitution is interpreted in several ways?

>>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.
>

And yet they are not defined, just reserved.  Where in those undefined
unreserved areas - like education, health care and such are the
protections?

>>[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.

As I pointed out (more then a few times) this does not fit with your
view of federalism. The fed did not initiate this particular hysteria
and while this crime was great - it is nothing compared to the
generation of importing, buying and selling slaves, and the years
of rights abuse following emancipation.  The Fed has come a long
way to right these wrongs.  The idea is, you should not have to run
for your life to secure your rights.

>       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.
>

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.  

>>>>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.
>

I'll look it up.  Then I'll respond.


>>>        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 hardly a "reference"  - I was talking about names, dates,
etc.

>
>>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.
>

I want the federal government to protect the rights of the individual
whether they are being oppressed by someone in their state or another.

>>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?
>

I don't. I want the written rules used to protect the individual
not hamstring the only power that can help them.

>>>        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.
>

Do you agree that they had the right to force integrated schools -
despite what Goldwater said?

>>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.
>

Better from your point of view - as long as you are in the majority.
Exactly how will those written protections work - if they are not
allowed to.


>>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.
>

Again with the Amendment process?  That's not much of an appeal, at
least not in the victims lifetime.

>>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.
>
Unfortunately, according to your scheme of things, this kind of
restriction only applies to the Federal legislature.  We've almost
agreed that the states seem to make their own limitations.

>        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.
>

As I have said many times before (and yes this *is* getting monotonous)
The degree of union is subject to interpretation.  The looser union
you suggest was full of slavery and religious discrimination - not
much of an advertisement.

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

Leaving individuals to the tender mercies of their own state
government.

>>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.
>

How long would it take to pass a specific amendment allowing the
federal government power to stop the poisoning of your water table?

>>>>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?
>

You have the same right as anyone else.  I vote for politicians and
wind up as taxed as you do.  But my concerns are for people who
have, and could again, lose their rights.  Why do you have no
concern in that area?

>>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.
>

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".

>>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.
>

And yet you have yet to find a situtation where you have agreed
with federal action.  What if the election was a state election -
does the federal government have the right to ensure local voting
rights.

>>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.
>

They were wildly popular changes at the time.  They had enough
support to do what ever they wanted, including re-writing any
written protections.  What would have saved the minorities in
Germany was a social system that stressed that minorities had
rights.  I'm afraid that your system of States Rights has 
historically encouraged local groups to pursue private agendas
with a hostility to any protections.
 
>>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.
>
I'm not concerned with the German law. I as speaking of the
United States which, at that time, was nativistic and had
a lot of people who more or less agreed with the German program.

>>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.
>

The people at the State Level thought that federal protections assured
them to do whatever they wanted.  They took that very seriously.

>>>       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?
>
	1) The national majority is predominantly Christian
	2) Past two presidents wanted prayer in schools
	3) Your sneering at the laws that pushed Christianity
	   at the expense of non-christians
	4) Your insistence that your State legislators have a
	   lock on "ethical and moral" behavior

>>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?
>

Are things all that bad?  I really think all your doom and gloom
is misplaced.  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.

>        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?
>

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. 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.

>>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.
>

And what is state business - segregated schools?  White only hospitals?

>>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.
>

Yet you can't expect an amendment when the radio was invented and
the car and the plane.

>>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.
>

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.

>>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.
>

And yet - you worry about the majority picking on your states.  So how
I am to accept that you wouldn't reject a constitutional amendment
if your state did not ratify it.


marc colten



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