#725 Musings Beyond the Bunker (Thursday August 10)
Good morning,
WHAT IS RESERVED FOR STATES AND INDIVIDUALS
I wrote a couple of weeks ago that the Civil War settled once and for all the primacy of the national government over the states and that the Constitution confirms that certain rights exist for all citizens that cannot not be abrogated by any state. As many historians have noted, the “united states” (a group of states united in a confederation) became “The United States” (a singular nation comprised of states) after the Civil War. This seemingly semantic distinction describes accurately one of the byproducts of the Civil War—that there are certain things that are national in scope—including basic human rights.
Before the Civil War, states were far freer to circumscribe and permit behaviors within their borders, including the perpetuation of slavery. While the Nullification controversy (the notion that a state could nullify a federal law) ultimately resolved in favor of the national government, the idea of state supremacy continued until the Civil War resolved this idea once and for all.
A good friend of mine finds my recitation of what I believe are settled facts to be “a revisionist view of the Civil War.” He maintains that the war was fought primarily to prohibit the right of states to secede from the union. While this certainly was the catalyst for, and a major aspect of, the conflict, the primary issue remained the irreconcilable difference between the states regarding slavery and fugitive slaves, reaching its apotheosis with the election of Abraham Lincoln.
My friend goes on to say that “the abolition of slavery was dealt with by Amendment XIII and to a broader extent by Amendment XIV. This put the issue at a national level and made clear it was not left for the states.” He goes on to say ”…what is not in the constitution is left for the states. See Amendment X: ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’”
The argument that there are no rights that exist unless they are spelled out in the Constitution is flawed in a number of ways:
There already are rights not enumerated in the Constitution. Certainly, the Founders could not make an exhaustive list, necessitating clarity as to whether the listed rights of individuals are exclusive or inclusive. There are rights that are ensured on a national level. Some rights we take for granted that are not in the Constitution include some basic things—being safe in our homes, that we should be protected from violence from our fellow citizens, etc.
My friend’s argument (and that of the proponents of “states’ rights”) is undermined by the very language of the Tenth Amendment. It provides NOT that all rights are reserved to the states. It says quite clearly that the rights are reserved ‘to the States or to the people.’
If we want to examine the amendments for guidance, the Ninth Amendment clearly provides that rights not granted to the federal government in the Constitution are reserved to the people.
There are other provisions of the Constitution that limit states’ freedom to adopt legislation that would otherwise restrict citizens crossing state lines. Certainly, states can’t interfere with cross-border commerce and a number of other things, thanks to the Interstate Commerce Clause. It seems only a small step further to suggest that one state cannot interfere with the personal choices of citizens of other states who choose to move there. For instance, if Alabama outlaws same-sex marriage and a couple are married in California, what is the status of their union in Alabama?
Further support can be found in recalling the very reason for the first ten amendments, the “Bill of Rights.” Their inclusion was in response to fears that many had at the time that the Constitution would unreasonably impinge upon the rights of individuals. Indeed, most of the Bill of Rights speaks to rights of individuals in speech and assembly and various rights associated with the sanctity of the individual and protections against the overreach of government.
Just as the states were not free to permit the enslavement of people, and just as the states were not free to secede from the union, there are some things the states should not be permitted to do. For instance, can a state engage in conscription of its citizens into its own military? The right not to be conscripted into service by one’s state of residency is not set forth in the Constitution.
I don’t think there is a doubt that one has sovereignty over one’s body. I also don’t think there is much doubt that, after 24 months of pregnancy, it would be wrong to terminate the life of a fetus otherwise viable outside the womb (absent, of course, risk to the mother). If one removes religion from the equation, the federal government ought not be allowed to restrict these rights, nor should states be able to do so.
THE FALSE COMPARISON TO CLINTON
There are those who feel I’m too tough on Mr. Trump. They cite Bill Clinton’s lying, sexual exploits, and perjury as equivalent crimes. They’re right that Mr. Clinton has been a sexual predator and he was a prevaricator of the highest order. That said, he served his country with distinction. Even if one disagrees with his policies, he governed from the middle and upheld our shared values and respect for our institutions. Mr. Trump has little regard for anything other than himself, lies about essential aspects of our democratic processes and institutions, and implores people to actions that could only lead to violence. While he is not the only cause, he has turned American against American and has created fear of “American carnage” that disrupts the core values of who we aspire to be, all for political and economic gain.
There is no “fair comparison” between Mr. Clinton and Mr. Trump. Nor, frankly, can Richard Nixon, a man with his own demons, ever be confused with the authoritarian lying of Mr. Trump, whom I believe is the greatest threat to this nation since the Civil War.
ERRATA
Yes, it’s the Fosbury Flop and it was in the high jump. Thanks, Mark Schwartz!
Have a great day,
Glenn
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