Sign of the Times: A Note

April 3, 2010

by Mario Rizzo

The Wall Street Journal has an excellent editorial “ObamaCare and the Constitution” in Friday’s edition. It covers ground similar to my post below.

However, there is sentence that bothers me, not because it is wrong, but because it expresses the temper of our times:

Judicial and media liberals are trying to dismiss these challenges [to the constitutionality of Obamacare] as a revanchist attempt to repeal the New Deal, or, worse, as a way to restore the states’s rights of Jim Crow.

Yes, it is quite unfashionable, even among conservatives, to want to repeal most or all of the New Deal. It is true that finding the current healthcare bill to be unconstitutional would in no way threaten these hallowed laws. However, I wish that the New Deal were not so beyond reconsideration. I think many economists would agree that much of its legislation could, with general benefit, either be repealed outright or be seriously revised. We can begin with the labor legislation.

It also bothers me, although I fully understand why, some people insist on associating “states’ rights” with Jim Crow or with slavery, for that matter. But for intelligent people not to see the advantages of federalism is inexcusable. After all, slaves were private property but we don’t therefore assume that all manifestations of private property are bad. Well, at least not most people. I hope.

12 Responses to “Sign of the Times: A Note”

  1. ThomasL Says:

    A stronger defence of states’ rights would have abolished slavery much sooner. It was the trampling of states’ rights that allowed it to thrive.

    From Anti-Federalist No.15:

    “Rhode Island has out done even Pennsylvania in the glorious work of freeing the Negroes in this country, without which the patriotism of some states appears ridiculous. The General Assembly of the state of Rhode Island has prevented the further importation of Negroes, and have made a law by which all blacks born in that state after March, 1784, are absolutely and at once free.

    “[The] Congress [of this new government] will have the power of guaranteeing to every state a right to import Negroes for twenty one years, by which some of the states, who have now declined that iniquitous traffic, may re-enter into it-for the private laws of every state are to submit to the superior jurisdiction of Congress.”

    Of course, this argument lost out to the champions of a supreme national government, and the USG held slavery as the law of the land.


  2. ThomasL has a point. The Fugitive Slave Act of 1850 and the notorious Dred Scott Decision by the USSC trampled on both individual liberties and States Rights.

  3. Johnny Says:

    Pardon me, but conservative “intellectuals” such as yourself astound me with your mind-numbing naivte. While your motives may be pure, your anti-social, anti-labor views are still rooted in that same old pro-business republicanism that, truly, has only ever benefitted, at most, an elite minority.

    Believe me, we KNOW your views. Don’t tax big business. Labor (i.e., the workingman) is the problem. Actually, the real problem is the fact that republicans have not come up with solutions any different from the ones proposed by Herbert Hoover. Reagan is your champion simply because he made these same old tired ideas somehow sound new and fresh.

    “laissez faire”. Hah!

  4. Bill Stepp Says:

    At the risk of getting my neck into a sling, in my opinion there are no such things as states’ rights. Individuals have rights, but governments do not.
    I think this is one of the key differences between libertarians and conservatives (and liberals). The latter two groups think governments have rights in addition to responsibilities.

    I agree with Rothbard (and Spooner) that governments are just criminal gangs. While criminals have rights, they certainly don’t have a right to steal or to commit mass murder, etc.

    I also disagree with Mario’s previous post on the subject, in which he said (I think) that the Constitution guarantees rights.
    The Bill of Rights does no such thing; the right to free speech came before the first amendment, although governments in both Britain and the colonies had histories of trying to squelch it. The same is true for the right to bear arms, which doesn’t depend on the Second Amendment (Saul Cornell’s bad history to the contrary).
    So let’s get over the Constitution fetish, and stop treating it as holy writ. It’s just a scrap of paper; the 55/39 writers/signers had no right to foist it on anyone living then or in the future. They had no one’s power of attorney and no legal authority. They were just, well, a criminal gang.

  5. William Says:

    I love the CSM and usually agree with most of it’s articles… but yes, state’s rights are irrevocably linked with the sour side of social justice. And on another note, california is doing great right now in the use of it’s own “state’s rights”…

  6. Bill Stepp Says:

    Johnny,

    Can you give an example of an anti-social or anti-labor comment that appeared on this blog? Libertarians are pro-free market, and certainly are opposed to subsidizing businesses, or giving them other state-granted privileges.

    Libertarians want the government to stop taxing big business and everyone else, including small business, and individuals.
    Taxation is theft, to reprise a libertarian slogan. Theft is wrong. Ergo, taxation is wrong.

    As for Reagan, check out Larry M. Schwab’s book, The Illusion of a Conservative Reagan Revolution. Murray Rothbard also wrote libertarian articles against both Reagan and Hoover, which can easily be found with a search.
    Neither Reagan nor Hoover are libertarian icons.


  7. People propose various actions that will “help the economy.” What is “the” economy? Is a “jobless recovery” an improvement in the economy? Whose economy? The New Deal was not designed merely to improve “the economy.” It was designed to ensure that the least privileged of Americans would share in the benefits of “the economy.” Justice requires that the overall economic well-being of the nation (a statistical fiction) be balanced against the well-being of those at the end of the trickle (a hard reality).

  8. Glen Says:

    For those making the point that states don’t have rights… you’re right, and I’m sure Mario agrees with you. But when we say “states’ rights” in this country, it’s not a reference to any moral rights possessed by states. It’s a reference to the powers reserved to the states by the 10th Amendment to the Constitution, and more generally to the principle of the federalism (division of powers among the levels of government). The usual claim is that a federal system will generally do a better job of protecting individual rights and limiting the overall power of government.

    Maybe that claim is wrong, but let’s at least make sure we’re talking about the same subject.

  9. Hume Says:

    The biggest problem I (as a libertarian) have with the “states’ rights” argument is the heightened probability that an entrenched majority will suppress an unrepresented minority the more localized political power becomes. I call this the “A-Team” Affect. Of course, it is easier to “vote with your feet” at the local vs. federal level. But the costs are still extremely high, especially moving from state to state (compared to town to town). Although I struggle to justify the existence of a state at all, I believe that libertarians should (on a practical level) recognize that the federal government could play a strong role in protecting individual rights from State oppression. Of course, in reality this is not the role the Feds play.

  10. Mario Rizzo Says:

    The theory behind states rights is that by restricting the power of the central government vis a vis the states, there will be power counteracting or balancing power.

    No one has to *want* to protect rights of people but the system will make it difficult for either the Federal government or the state governments to violate them. The Feds will have little power and the states will have to worry about at least some people,especially those with wealth, leaving the state.

  11. Seth Says:

    BS: States don’t have rights, nor does the Federal government. But individuals have rules by which they have consented to form and run Federal and state governments.

    Wm: What’s your point about CA? It’s a failing experiment proving that we live in a constrained world. This is a good result of giving states rights – we get more labs to see what works and what doesn’t. We should take heed that that doesn’t work.

  12. ThomasL Says:

    Arguing that states have no rights is arguing against all concepts of government at all levels. If a government at any level exists, it must have some range of authority. Within that range, it must be sovereign: it must have the right to act free from external interference, manipulation, or coercion.

    If a national government is allowed to tell my town where to put its street lights and how many police to hire, or to tell my state what services it must offer in what quantity, all the states and cities are reduced to simple administrative zones of the central government, not governments in themselves.

    Arguing for their rights is that within their own carved-off realm of authority, they should be free to act or not act within their powers.

    If you deny that right exists within the US, you may as well deny it without the US as well. Then the US can justifiably interfere with any government anywhere on the planet. We have the influence to do so, and if they have no rights that would be infringed by our doing so, we may as well use our influence as we see fit, anywhere we feel like exercising it.

    Another point is that you’ve simply got the causality backwards. The states created the federal government and granted to it certain, specific powers, not the other way around. That is, the federal government cannot possibly have any legitimate authority which the states did not _already possess_ in order to confer it. That places the states (collectively and severally) as the foremost authorities, with the Federal government only authorized to act where and how they granted it permission, which is certainly how the states viewed it at the time.


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