14th Amendment:
". . . nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The North won the Civil War. Black Americans are Americans, and states need to protect equality.
Then the long war of resistance began. The weapons of that war are "states' rights" and federalism.
In some arenas of life federalism works well and makes sense. Imagine 20% of the students living in college dorms are smokers, while 80% of students want to live in a no-smoking dorm. The university might ban smoking in the dorms; majority rules, and besides, smoking is a nuisance. That decision leaves 20% unhappy. Another tactic is for a university to label 20% of the dormitory space as "smoker dorms," and the rest no-smoking. Students can choose the dorm situation they prefer.
Or imagine 20% of the students want a dorm with an 8:00 p.m. curfew and quiet zone for undisturbed study; 80% think that is ridiculous. Can the university designate a quiet dorm? The point isn't about smoking or curfews. It is about recognizing people want different things.
We are undergoing a major reversal of national policy as regards constitutional rights and state discretion. The impetus is coming from the political right, and it is showing up in their success getting Federalist Society judges placed on courts, especially the Supreme Court. It is returning power to the states. They are using federalism as the mechanism to roll back equal protections for racial, sexual, and other marginalized minorities.
Well, you can list a whole host of issues, when it comes down to whatever they are, I’m going to say that they’re not going to all make you happy within a given state, but we’re better off having states manifest their points of view rather than homogenizing it across the country as Roe v. Wade did.
Oops. This wasn't a mistake. It was a "tell." He was stating a political philosophy and had not thought through its implications. Indiana voters don't want to outlaw inter-racial marriage. Braun realized his error.
But Braun's slip here is a window into a larger philosophical movement in the GOP. The Court has already agreed that states can gerrymander congressional and state legislative districts to reduce the voting power of minorities. Several justices agree that state legislatures have plenary power to assign electoral votes regardless of the outcome of the presidential election in that state. There may be a majority for that. Nationally voters seem to have accepted a right to same-sex marriage, but there are some states, and certainly areas within states, where that is unpopular. The constitutional right of same-sex marriage is recent and perhaps unsettled within a conservative Supreme Court. This could become a matter for local control.
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| April, 1969 |
There are two limiting factors on widespread return of power to the states. One was revealed by Senator Braun. It is bad politics to say a state should have local control to ban something popular. The other is guns. There is significant overlap between the people who want states to be able to ban abortion and the people who do not want states to be able to ban guns. Supporters of states' rights have that in the back of their minds. Let's not get carried away here.
Federalism isn't a principle. It is a device for getting the policy outcome one prefers.
19 comments:
Yes, instead of a civil war we could have just bowed to "states' rights," and they could still be enjoying an economy based on slavery in the South.
It's not Federalism to allow states to legislate whatever they choose. Federalism is and should be a unifying mechanism that binds states into a "perfect union".
Abortion and marijuana (and prohibition back in the day) are two examples. The current attempts by Republicans to repeal RvW is a result of the party's subversion by religious zealots and white supremacists, thankfully a minority, but now in total control of their policies. The right to choose is not only a majority value but also a recognition of a fundamental right and as such should be a Federal law.
Marijuana on the other hand is becoming accepted by the society both as relatively harmless and even an economic plus for states, a value correctly held by a majority and likely will be legalized federally soon.
The United States risks becoming balkanized if Republicans continue. Red states will essentially become little North Koreas in our midst.
A lot of men do not understand the abortion issue because they do not have to worry about getting pregnant from approximately age 12 until menopause, decades later. Patriarchy hates abortion and even birth control. Plenty of men still want to control and dominate women, here in the US and around the world. To desire to dominate and control another human being is a sickness. Slavery is another example.
It’s not a binary decision. It’s a balance.
Some things should be fully federalized. Other things should be fully under control of the states. Most things should probably be somewhere in between.
Even Ruth Bader Ginsburg had second thoughts about the wisdom of fully federalizing abortion policy.
Common sense would be a good underlying aspiration.
Federalism is indeed a principle, even if it can also by styled as a device. The Founders' documents are awash in that debate, and the nation began via the Constitution under the auspices of state's rights and federalism. The Civil Rights Amendments placed necessary limits on states' rights, but the biggest single example of federalism's necessary sway remains Wyoming e.g. being as powerful in the Senate as California. Necessary if to avoid regular popular upheaval, that is, even it's sometimes an impediment to what today's Democratic statists and collectivists happen to want right now. The Constitution left many important subject-areas to customized states' determination, especially substantive family and criminal law. The reason certain LGBTQ prerogatives are not settled is because the SCOTUS still has not deemed evens gays, let alone the rest of the alphabet, to be a heightened-scrutiny class for civil rights purposes under the Constitution as are women and racial minorities.
For many of today's Democrats, prospective Justice Brown Jackson included, I suspect, who wouldn't even disavow court-packing, as RBG did, what's important is the SCOTUS--the power--not so much the Constitution itself, which they often view as an impediment to good and just policy-making. They ignore the long-term value of the document as written, for everyone, as opposed to immediate imperatives. As Harry Reid learned after he used the nuclear option, today's sword can be tomorrow's shield. Democrats like state's rights in e.g., immigration law.
We should have just let the Southern states go when we had the chance. They are a drag on the rest of the US.
It’s pretty blatant: Republicans are using state legislatures and the Supreme Court to roll back progress in women’s rights, civil rights and voting rights. It’s the only way they can hope to maintain the supremacy of their white patriarchy. They don’t even want their kids exposed to Black history for fear it might cause them “discomfort.” It should, but they’d rather we all just forget about it. Like their attack on Congress, that was then - let's just move forward.
As Ben Franklin said, “It’s a republic, if you can keep it.”
Bowdlerized black history written by alternatively low-wattage or plain dishonest professional grievance-mongers isn't a problem because it causes white "discomfort".
It's a problem because it has led to angry, anti-social fatalism and record violent crime and other lawlessness. Law-abiding blacks are by far the ones harmed the most.
Believe it or not, evolution remains controversial and there are 14 states that allow the teaching of creationism in public schools.
Obviously, our history of racism is equally controversial. Perhaps to appease those who are offended by facts, history books could include their side of the story – that Africans were brought here as guest workers and in return for their labor, the blessings of Christianity and civilization were bestowed on these barbarians.
Africans were brought West as slaves purchased shipside from African slave-traders dealing out their own brothers and sisters, a practice then already centuries-old in Africa, and a practice still ongoing as a widespread, organized matter in Africa. Today most African-Americans are far better off than most sub-Saharan Africans, where historical soul-searching and “reckonings”, as in Ethiopia and Sudan, as in China, Russia or Japan, in Cuba, Venezuela and religio-imperialist Muslim majority nations, are laughed off, instead of genuinely asserted as here, with retributive efforts long underway. America’s history was whitewashed and excused in the day. Now undue comparative demonization is the pose of anachronistic “historical” leftist moralizing, as if America is the worst of the worst, coming from the same philistines who pulled down Lincoln statues because he didn’t mirror the language of today’s graduate seminars. Or demand trans bathrooms?
Moderation in everything, said Aristotle. Yes, including in moderation itself. What’s wrong and bad in absolute terms remains so. Overheated, pharisaical denunciations of America as if nonpareil geopolitical villain. to replace the jingoistic whitewashing of yore, is in the 21st century an equal, toxic ill. Again, those hurt most by this are those the pious Pharisees claim most to care about.
Now there's a perspective I hadn't considered before: The barbaric treatment of African and African American slaves in the U.S. is their own fault, and since other countries are worse than ours, our history is irrelevant - nothing to learn there.
In the pursuit of equality and social justice. moderation is cowardice.
"Oof! Ouch! Ah, you got me yet again with those deadly fallacies and childish mischaracterizations! What a world, what a world..."
--Straw Man
Interesting. The only mischaracterization I'm seeing is "Bowdlerized black history written by alternatively low-wattage or plain dishonest professional grievance-mongers."
I guess rewriting history is only acceptable if the history starts with January 6, you know, the enthusiastic group of tourists visiting the US Capitol.
Well put.
Mischaracterizations are practically automatic for transactional, binary-minded partisans, because they're unable acknowledge the existence of shades, degrees, context, shared blame and moral agency, letters other than "R" and "D" and categories among groups and subgroups across time besides Patronized Victim and Geopolitical Villain. It is a simpler life, granted.
That doesn't actually clarify why some white guys are so intent on mischaracterizing Black history.
Brainy leftists should have no difficulty coming up with an example or two, as have been illustrated going the other direction on numerous occasions. Or they could just continue to repeat themselves emptily, what I hope for the sake of their families is a correctable shortage of intellect more than a fixed shortage of intellectual integrity.
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