From: colten@cbnewsb.cb.att.com (marc.colten)
Subject: Re: State's Rights
Summary: State vs. Federal,  Amendments
Organization: AT&T
Date: Sat, 23 Jan 1993 00:55:19 GMT



>>In article <PA146008.645.727558693@utkvm1.utk.edu>, PA146008@utkvm1.utk.edu (David Veal) writes:
>>> In article <1993Jan20.134855.12694@cbfsb.cb.att.com> colten@cbnewsb.cb.att.com (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.  It's not that cool if the majority decides that the "extent"
of their power costs you your liberty.

>>The closer the authority the more likely the abuse.  
>
>       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.  I'ts your barking dog that
is keeping him awake at night.  It's your tree that is dropping 
leaves in his yard.  You are the guy who runs the bar that he thinks
is the 4th sign of the Apocalypse.  It's your kid who wouldn't stand
for the pledge to the flag.  It's you who objected to a clergyman
(of a faith that claims to have superseded yours) preaching to your
clild in a school you helped pay for.  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've seen many instances
>>of local authorities regarding some issue as life and death and
>>the last bation of society, when - viewed from a national 
>>perspective - it was an issue hardly worth the repression involved.
>
>       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.  A state may consider that trampling unimportant
in it's attempt to reach a goal.  If so, federal appeal may help.

>       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.

>
>>Issues such as Sunday blue laws that discriminated against Jews and
>>other non-christrians, and laws against inter-racial marriage.
>
>       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?

>
>>>        Slavery, women's votes, and freedom of religion are all addressed
>>> in the federal Constitution.  The only way the State's can have the "right"
>>> to do those would be to repeal those amendments, which I don't particularly
>>> see happening.
>>
>>They are addressed in later amendments to the federal constitution.
>>At the time it was written they were not as they are today.  
>
>       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.  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.

>>Many people at the time took it as a fact of life that people could be
>>slaves, that women could not vote and that some religions were more
>>equal than others.  There were people a hundred years later who
>>felt the same way and people today who argue that it should not have
>>been changed.  According the the states rights idea - they would not
>>have been changed. 
>
>       All I ask is that state's not have their autonomy within the Federal 
>Constitution violated.  Do you disagree with that?  Don't quote some 
>position I have neither expressed nor support at me.  Answer what I say, not 
>what somebody else has.
>       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.  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:

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?  It does not mention airplanes - can they be denied
access to airports?  It does not mention driver's licenses - can they
be denied them?  

There is a lot of room in "state business" for rights abuses, simply
by calling them "education" rather then discrimination.  I feel
that if a citizen is denied the rights allowed to others, it is not
"education" or "transportion" (items not mentioned in the Constitution)
but a violation of their rights as US citizens - a valid federal
area.

>
>>After all, what is the difference between the
>>Fed telling a state what to do, and a new constitutional amendment
>>changing the rules?
>
>        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.  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.
>
>>>        Which particular right *are* you worried about the state's infringing
>>> on that isn't already addressed?
>> 
>>My right to practice any religion that I choose, or none at all.  
>
>       Amendment one, wasn't it?  And the fourteenth probably applies.

A great many religious groups and politicians at all levels have
publically stated that the constitution was written *by* christians
*for* christians and the most it means is that no christian 
denomination may be supreme.  Or as Reagan so charmingly put it
"Other religions have always been tolerated in our society". When
I was growing up in New York City - you had to close your store on
Sunday.  This was a special hardship on Jewish merchants who had
to close their stores on Saturday for their religion and on 
Sunday for the law.  The law was fought for many years and I remember
the things people wrote in the newspaper about it.  When people said
that this was forcing the Christian religion on those who did not
wish to practice it - they said oh, no, it's to protect people who
would be forced to work 7 days.  Okay - they answer - then lets
change the law to say "one day each week".  You can imagine the
outcry - it had to be Sunday - not because it was the Christian
Holy day they said  - just ... because. All this happened 200 years
after the 1st amendment - and 100 after the 14th.  So freedom of
religion in American is not intuitively obvious to everyone, and often
needs a greater appeal than simple state authority would allow.
>
>>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.
 
Not at all.  He was arguing your position that if a state passed such
a law the fed had no power to interfere.  In Chutzpah (Alan 
Dershowitz) he says the following:

	One federal judge, W. Brevard Hand of Alabama, recently
	ruled that each state may establish it's own particular
	religion, just as it may pick it's own state bird, flower,
	flag and song.  He added that "a member of a religious
	minority will have to develop a thicker skin if state
	establishment offends him."  The very concept of 
	thick-skinned religious minorities is a manifestation
	of toleration, as distinguished from equality.

>
>>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.

>>You have only suggested allowing a state to carry out what YOU feel
>>are it's proper functions (many of which are not mentioned in the
>>Constitution and some which did not even exist in the 18th century)
>>without Federal interference.  
>
>       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.  See above what I said
about Goldwater.  They can simply say it isn't discrimination - it's
education - reserved to the state.

>>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.

>>>        *WHO* rounded up and incarcerated Americans of Japenese ancestry 
>>> during WWII?  I don't think you can make a case either level of government
>>> has a sparkling record.  The question is, whose mistakes hurt more people?
>>> Tenneseee's, or the Federal Government's?
>>
>>The internment of Japanese Americans did not come out of the blue sky.       
>>It was not opposed by the state - although that might have gone a long
>>way to vindicate States Rights.  
>
>       The Federal government did it, but it's the State's fault because 
>they didn't oppose it?  (I have no clue what objections the states might 
>have had.)

As always you choose to mis-read what I said.  The internment of
the Japanes Americans was prompted by the states - partly out of
war hysteria, partly out of bigotry, partly out of greed.  Were
the people in New York and New England and the South and even the
midwest so concerned about the Japanese Americans?  If they were
that worried why weren't German and Italian Americans rounded up.
The federal government went along, and that implicates it in
the crime - but the state was not innocent.  As for what objections
they might have had - how about the big bad Federal Government
from far off Washington DC coming into their state, and against the
wishes of the state government rounding up decent law abiding,
tax paying, citizens?  If the states as always as good as you
think - why didn't they raise a peep? 

>       You seem to be suggesting when the States do something and the Feds 
>agree, it's the states fault, but when the Feds do something and the States 
>agree its *still* the States fault.  I think your just deciding the blame 
>the States regardless.

No - I am suggesting that if a state passes a bad law, taking away the
rights of it's citizens - it is at fault.  If the Fed allows this
under the States rights doctrine, regardless of who is unfairly hurt
it is also to blame - but that does not vindicate the state.  If the
fed *initiates* wrongful action against a citizen, and the state
simply shrugs its shoulders and lets it happen, it is implicating
itself in something that is the feds fault.  The group that initiates
the wrongful action is at fault - the one that simply goes along
is an accomplice.
>
>>Did they attempt to stand up to 
>>the big bad fed?  Not at all.  In fact it was their idea and to their
>>benefit.  Read up sometime on how the Japanese Americans property was
>>scooped up by locals.  so it's a bad example.  
>
>       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.

>>The questions of who
>>can hurt more people, over the long haul - the states, since they
>>have such a bad record of doing just that.
>
>        Sigh.  I've listed at least twice lists of offenses at the Federal 
>level each time you say, "What did the states do to oppose it," and then 
>blame the States for that. 

"Sigh" right back at you.  YOu did not "list" any offenses that were
not State initiated and accepted by the fed under *your* rules of
rights that are "resereved" to the states - like who is a slave and
who is free.

>>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?

>>If the industry was in their own state - they would see stiffer
>>standards as hurting local industry.  If the industries are in other
>>states - as you suggest - what would Tenn stiffer rules do?  Nothing.
>
>        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.

>>It's the neighbors who complain when you make a stink, and without
>>a higher authority, the offending state could just shrug it off.
>
>        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.  This allows a wide latitude
for states to victimize minorities in their own state (who must
develop a "thicker skin" as Judge Hand suggested).

>        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?

>>>        My state legislature would disagree with you.
>>
>>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?

>
>>>        So you would allow a majority of states to dictate to a minority of 
>>> states.  I fail to see how this is different, save on scale and that bad 
>>> decisions are felt over a much wider area.  If Tennessee enacts a poor law, 
>>> Tennesseans suffer until it is repealed. If Congress enacts a poor law *250 
>>> million* people all across the country suffer until it is repealed.
>> 
>>If Tenn enacts a poor law, many people could suffer for many years.  I
>>find this troubling.  
>
>        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.  How does
it improve the chances for justice to LOWER the level of the final
appeal?  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?
>
>>I also find it troubling that if those people
>>are in the minority - the law may never be repealed, but may actually
>>be wildly popular. 
>
>       This is a problem with any form of democratic lawmaking.  And the 
>problem remains no matter how big your democracy gets.  If there is enough 
>outrage in other states, they can pass an amendment and fix the problem.
>
See Footnote 1.

>>So what is the remedy?  
>
>       A federal government which can, with enough support, following the 
>rules laid down, over-ride the states.  What your arguing for is essentially 
>a benevolent dictator ship which will ignore the majority on it's own 
>opinion.  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.  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?

>>As for the minority states
>>vs. the majority states - if the minority states are violating the
>>rights of it's citizens - then why is it so wrong for the majority
>>of states to take steps to stop them.  
>
>       Understand the difference between wrong and illegal.  It is not 
>wrong.  But if the Federal government exceeds its powers, it is illegal.
>They can take steps under the current Constitution.  It's called the 
>amendment process.

See the footnote - again.

>>So if Tenn chose to double the school tax on Black people, and then
>>deny them the right to go to those schools - it's nobodies business
>>but the people doing the oppressing?  
>
>       Look, at least come up with an example that isn't already covered.
>But yes, it is others business.  And you continue to ignore that they 
>*already* have an avanue to express their displeasure.  Amend the 
>Constitution.
>
See the footnote - again.

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

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

>       Somehow.
>
>>It
>>would be a bigger shame if they let you get away with murder because
>>it's "none of their business".
>
>       Are you deaf?  Pass a damn amendment.  An avanue of change is 
>available to you.  I'm sorry if you can't simply wave your have and force
>other states to conform to you;  that the process is difficult, but don't 
>pretend it isn't there.

No I am not "deaf".  I am also not illiterate, which is perhaps more
to the point.  I have read your arguments and I'll tell you again 
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.

>>So you are simply willing to draw a line around each state, and say
>>that no matter what happens in the state - from legalized prostitution,
>>to complete denial of rights is nobodies business.  
>
>       Are you reading what I write?  Of *COURSE* it matters.  That's why we 
>have a Federal Constitution.  Use the system.
>
I do - including federal appeal if relief cannot be gotten at the
state level.

>>>        Article I give Congress the power to over-rule state legislature's
>>> on voting criteria.  It is a non-issue.  Further, the various amendments
>>> provide extra protections.  The power you are arguing should over-ride
>>> State's power already does.  You need not crush their autonomy in order
>>> to exercise it.
>> 
>>Hardly a non-issue.  Article I is 200 years old.  
>
>       Yet still the law of the land.

Try reading the whole paragraph before you respond.

>>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.  If they had 
exercised their majority over a single state would you have approved?
I doubt it.  YOu might have found the federal government telling 
your state poll watchers to let people use their right to vote.

>>A decision to take away someones rights, while allowing others to
>>practice them can hardly be called "democratic".  
>
>      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.  Would you have agreed
with view (widely held in the 1930's and 1940's)?  And as I mentioned
above - how does a Republic (with representatives elected by a majority
of the people) offer any more protection?  It doesn't - unless the
rights of the individual are protected by a higher authority than
the local one.

>>>        It's a mistake to totally bar religion from schools.  It presents a 
>>> skewed and innaccurate view of both the world and history. I would, however,
>>> accept that other people may educate their kids different than I do.
>> 
>>I have no trouble with teaching about the history of religion in schools,
>>although the people pushing for it might find it teaches a lesson with
>>which they are not very comfortable.  As for the practice of religion
>>in public schools, that is a very touchy area and one in which majority
>>religious groups have trampled over the rights of minority religions.
>
>       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.  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.  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.

Footnote 1 - Constitutional Amendments

Here is my question again.  You disagree with federal power over the
states.  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).  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?

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?  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?

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

	

marc colten

Xref: sparky talk.politics.misc:70052 alt.pagan:15920 talk.religion.misc:27683 talk.abortion:58183