Why the left (and all people) should favor states’ rights and local empowerment

Think of states’ rights. I bet the majority of you are conjuring up some vision of a red neck holding a Confederate flag. Or perhaps these days you are thinking about crazy people in Utah calling for more respect of the 10th amendment and the adoption of gold and silver as currency.

Well, like most political slogans, states’ rights has some baggage, perhaps an unusual amount given this country’s horrible history of race relations. But it is time to resurrect the idea that everybody is better off if we give more space to state and local governments to pass laws without federal interference.

Let me start off by addressing three areas where the left generally favors state and local rights against federal overreach.

1)Sanctuary cities. There are literally scores of sanctuary cities across the country. In general, the purpose of a sanctuary city is to provide a “safe haven” where local governments will not cooperate with the federal government in enforcing federal immigration law. In practice, the feds often ignore such rules and carry out raids to round up illegal immigrants, even in sanctuary cities. There are extremely complex legal issues involved, but in general I favor (and I think all people should favor) empowering localities to develop their own laws regarding the kinds of people they want living in their cities.

2)Medical marijuana. There is a direct conflict between federal laws against marijuana and state laws legalizing medical marijuana. In Colorado, for example, this has led to people getting arrested by the feds for growing marijuana that is legal according to state law. Again, I would hope most people could agree that the people of Colorado should have the right to decide how to deal with marijuana laws.

3)Localized currencies: Berkshares. A group of mostly left-wing people in the Berkshires region of Massachusetts has set up their own currency. Yes, it is true, this whole alternate currency idea is not confined to crazy people in Utah. The non-profit group prints out its own currency, which is accepted by a long list of local companies. The currency does not pretend to be federal specie, but it nevertheless competes with US government money, and the plan is to do a lot more. Berkshares, recognizing that the value of the dollar is plummeting, wants to set up a basket of local commodities grown in the Berkshire area. Their want their currency to be based on the value of this local commodity basket as an inflation hedge. What they are seeing is that commodities are increasing in price, but the U.S. dollar is declining in value. Whether or not you think this is a good idea in the long run (it is true that commodities also decrease in value), the point is that I believe Berkshares should have the right to do what it wants without federal interference.

I hope I have convinced you that there are plenty of causes on the left where people want local control. And this is basic common sense: people in general like to be left alone. Local areas have special needs. People are different in different areas, with their own cultural pecularities and causes.

And this is exactly the vision that the founders had of the U.S. government. Reading the Federalist papers, it is clear that states were to be given control over most issues and that the federal government was to be relatively small. Even Alexander Hamilton, the leading proponent of federal power among the Founders, said in Federalist #28 that “the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority.” The vision of the Founders was that individual colonies were different and that local self-government would avoid conflicts and allow people to govern themselves as they wished.

Obviously the Civil War, Jim Crow and an ever-expanding federal government has changed this. My argument is that we need to put those issues behind us and concentrate on increasing local and state power, which is more in line with the Founders’ vision.

Let me offer some things for my friends on the left to consider. You want a single-payer medical system? You are much more likely to get it on a state level than on a federal level. Are you concerned about some Republican right-winger destroying abortion rights? Again, promote states’ ability to pass their own laws. I am generally in favor of more restrictive abortion laws (although I personally favor abortion rights in many instances), but I think such laws should be passed on the state, not the federal, level. If you favor gay marriage, you should be ecstatic that so many states are now allowing gays to marry.

Studying the death penalty, I think we see the power of states’ rights. After reversing itself on the legality of the death penalty, the Supreme Court has basically left it to each state to pass its own laws. And the reality is that capital punishment is a much less contentious issue than, say, Obamacare and abortion. Why? Because the people in each state can influence their state legislature to change laws in the direction they want, which is much easier to do than passing federal legislation.

So, get those images of red necks with Confederate flags out of your heads. States and localities should be given more power in a wide variety of areas. This should be something people of all political persuasions can agree on.

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About Geoff B.

Geoff B graduated from Stanford University (class of 1985) and worked in journalism for several years until about 1992, when he took up his second career in telecommunications sales. He has held many callings in the Church, but his favorite calling is father and husband. Geoff is active in martial arts and loves hiking and skiing. Geoff has five children and lives in Colorado.

36 thoughts on “Why the left (and all people) should favor states’ rights and local empowerment

  1. There’s a quote that comes to mind that i think epitomizes the issues involved here:

    “The agency of man would not be worth the name if it did not grant liberty to the wicked to fill the cup of their iniquity, as well as liberty to the virtuous to round out the measure of their righteousness.” —Elder B. H. Roberts (A New Witness for God, p. 47-58)

    Essentially, agency is best respected and protected when individuals have autonomy. Pushing more political issues downward to the state or municipal level (or, better put, pulling control away from the federal government’s greedy hands) is something every American, and especially ever Latter-day Saint, should support.

  2. Connor – To borrow imagery from the previous post no true Latter-day Saint can support the principle of the Unitary Federal Government!

    I like this post Geoff. It seeks to find common ground with some ideological opponents by bringing up the foundational principles of your own position, and persuading them to adopt those principles. Principles come before position, and there’s no sense in arguing over positions if we’re working from different principles.

    But now, the problem as I see it, is your ideological opponents are both strategic and smart. And they realize that most states disagree with them. Perhaps you can filter power down to the municipal level, where they are still autonomous within their domain. But then that ignores the other principle behind their position. Controlling others (up to a certain extent, which shifts and changes with the years) in order to achieve what you deem the best outcome is not against their principles. But presumably against yours.

    So while I figured this post had a shot, it still doesn’t address the fact that while no one likes to be told what to do, (nearly) everyone likes to tell their neighbor/friend/dog/child what they should do. And I find that whenever Republicans are wrong, it is often in the same vein that Democrats are wrong (just in different issues).

  3. Liberty is such a wonderful thing, and rare in earth’s history. Why are Americans so afraid of it today?

    I personally agree with state rights on most things. If I don’t like how a state is running things, I can work to change it, or I can move to another state more to my liking. I can’t do that so easily if the laws are all made in the USA.

  4. “So while I figured this post had a shot, it still doesn’t address the fact that while no one likes to be told what to do, (nearly) everyone likes to tell their neighbor/friend/dog/child what they should do. And I find that whenever Republicans are wrong, it is often in the same vein that Democrats are wrong (just in different issues).”

    Chris, very true. People love to control others. I think Joseph Smith (and the Lord) had some things to say on that.

    D&C 121:39:

    “We have learned by sad experience that it is the nature and disposition of almost all men, as soon as they get a little authority, as they suppose, they will immediately begin to exercise unrighteous dominion.”

    TSA agents come to mind.

  5. I agree that our federal system, with a central government of limited powers, and state governments with wide police powers, neither favors nor disfavors the left nor the right.

    As to health care, idealogically, I would have preferred changes at the federal level to permit states to enact single payer medical systems for all their citizens, or something like the Romney care (Obama care) system, or nothing at all.

    Among other things, ERISA preemption would have made that difficult, and many interstate employers, with employees in multiple states, would have objected strongly. That it, big employers don’t want to deal with different types of health or benefits programs in different states, they prefer a single set of rules so that uniform benefits can be provided regardless of residence of employees.

    I think one can legitimately question whether ERISA goes beyond the interstate commerce power. But, clearly, both conservatives (a la major business interests) and liberals (desiring protection of worker benefits) wanted it. I don’t know that anyone has ever challenged ERISA as extra-constitutional.

    Economic conservatives have also supported nationalizing product liability rules, so that a business’s tort liability does not depend on the state in which the injury (or perhaps manufacture) occurred. Liberals have opposed it, mostly because the proposed legislation would have provided greater protection for business interests than in many states. In other words, as to product liability and state vs. federal, the sides seemed to switch.

    Perhaps our economy has become so intertwined that the days of separate rules in each state for operating businesses should be put in the rear view mirror, with uniformity preferred. (One area where there is interstate uniformity without federalization is the Uniform Commercial Code, essentially identical rules in all the states. There are other sorts of uniform legislation.)

  6. David H, it seems to me that tort reform is a classic case of something that should be left to the states. One of the things we are seeing on a national basis is that states that allow lawyers to go hog wild on damages generally lose businesses and jobs, whereas states that adopt tort reform gain jobs. Over time, we will be able to see through the 50 “laboratories of democracy” which rules seem to strike the right balance. (As a libertarian, I believe that people who harm others should be sued in the courts, this is a completely legitimate area of governmental involvement, but I also think some states, like California, have taken things too far).

  7. DavidH – Product liability is one thing that the federal government probably should have some role in. A company making a part in Texas, sells it in California. What recourse does a consumer have to someone not in their jurisdiction?

    But if we want to repeal federal product liability along with a host of other invasive federal programs, I don’t think any conservative will fight that battle. Include it in the repeal package if you like.

    I’m not sure how to conflate restrictions on damages resulting from a defective or mis-used product with dictating to companies and consumers what they **must** do and have virtually no choice but to do.

    This is coming from one who while currently insured, is seeking to change policies with the same company. Unfortunately, I did this after Obama care because now that the company is under “Must Issue” mandates they are not actually issuing the policy. They know they have to of course, but the application process has taken 3 months, without any hint as to when it will be accepted. They said all new applications “experiencing delays”.

    We have no health issues, everyone has been insured, no real expenses other than an occaisonal visit for bronchitis, but I can only assume the new rules that require them to extend the policy has them doing extra background checks, as well as simply delaying it so I don’t try to get insured really quick when I find out I have cancer and stick them with the bill. Two years before Obama care, when we applied for the policy we were approved in a couple weeks… Unintended consequences of overreaching legislation are great aren’t they?

  8. David H, on the ERISA regs, it is worth pointing out that my company has completely different policies with completely different health benefits and levels of benefits in each state. Presumably you favoring “leveling the playing field” by making one-size-fits-all nationwide rules, and to a certain extent Obamacare does some of that. It is worth noting that the best way to do this is to allow insurance companies to compete across state lines and to get away from third party payer systems. This is exactly what Obamacare does not do. So, Obamacare takes the worst part of our system and doubles down on its problems, without offering true solutions that would bring more competition and lower costs. This is one of the reason that opposition remains so strong to that law.

  9. I totally agree with the point and the strategy of the post.

    I just wanted, however, to illustrate an area where this argument breaks down. You wrote, “Are you concerned about some Republican right-winger destroying abortion rights?” Pro-choice advocates want the federal level control over this issue precisely for this reason; they feel that only by going federal could they secure what they wanted. Now, sure, some states would have been lenient anyway, but having abortion “decided” at the national level is exactly what pro-choice advocates in Texas, Utah, etc. feel they need.

    So, the Left can agree with your overall argument, but this “states versus federal” is always going to break down whenever someone feels that they need the federal muscle to help leverage their position. And no, it doesn’t always have to do with “getting the feds to help me tell other people what to do,” as the example of abortion shows (because in that case, it’s “getting the feds to tell other people not to tell me what to do.”).

  10. BrianJ, just for the record, I am moderate on the abortion issue and favor legalized abortion until viability. I appreciate the overall tone of your comment, which is conciliatory.

    My point is: let’s say Huckabee becomes president in 2012 and appoints two pro-life justices and they overturn Roe v. Wade in 2015. I would feel that the left would of course be upset about this, but overturning Roe v. Wade returns the issue to the states, which is where it was in 1971, when many states were already adopting more liberal abortion laws. NY and California and many other high-population states might even have more pro-choice laws. Alabama and Utah and the Dakotas would choose more pro-life laws. The vast, vast majority of people would not be affected in any negative way because even if you lived in South Dakota you could, in theory, catch a bus to Minneapolis and have an abortion. The reality is that in this scenario people on the left would mostly learn to live with this situation. I say mostly because of course many activists would be upset, but it would be just like the death penalty, where most people are OK with the laws in their states and it is a much less contentious issue. This is the beauty of states’ rights: you allow people to get what they want (for the most part), and you decrease contention.

  11. Geoff: I think you’re mostly right. My main point was not to argue abortion per se, but rather to use it as an illustration of how I think you will have a hard time selling liberals on your plan. I’m thinking of one particular pro-choice advocate I know and I guarantee that saying “you can simply get on a bus and have an abortion in a neighboring state,” would sound to her like “you can go to church in a neighboring state” would to us.

  12. “you can go to church in a neighboring state” Well, if we are talking about less frequent temple trips, then that is the case for many LDS. All LDS have been to a local church, but only some have been to the temple. Some go frequently and some work there. The distance to the nearest one varies dramatically.

    The similarity I see is this: Supply and demand. If my whole stake started going once a month or more to the temple, we would shortly find one much closer.

  13. BrianJ,
    Perhaps I should explain further. I think that a very non-democratic organization like the LDS church is more flexible in their response to members voting with their feet by going to the temple than is the current abortion policy in the US.
    Explain this to your pro-choice friend. Of course there are many other medical procedures that are not readily available in many areas. One of my coworkers has been at a hospital in the city with the nearest temple all week with a sick relative. This is not because the government has placed restrictions on care of pediatric tumors in our smaller metro area.

  14. el oso: I think you’re following a tangent. The comparison I used was between (according to some people) two constitutionally protected rights that might be denied by one state yet permitted by another. Meaning, suppose the State of Nevada, which currently has a temple, passed a law forbidding temple work and suggested that LDS there could “just hop the boarder to Utah or California without much trouble, so no harm done.” The exact reasons why some people live close to a temple are beside my point.

  15. All of it comes down to an issue of freedom. With the rare exception (Civil Rights, Women’s right to vote) regardless of whether it is a Republican or Democrat pushing a federal program, rights are subdued or eradicated everywhere. “One size fits all” often really doesn’t fit at all.

    Freedom means no one gets to impose their personal desires on everyone else. When Roe v Wade became “law”, it didn’t force conservative Christians to rush down and have an abortion. To have a national law, though, means that freedom is lessened. It forces an opinion upon a large section of Americans. They cannot vote for or against it, as it is now a Constitutional issue that can only be dealt with by the Supreme Court or an Amendment (neither of which are likely to happen).

    The greatest freedom occurs at the local level. If a group refuses to have or pay for abortions in their precinct, it should be their choice. If another place desires to have full open and paid for abortions, that also should be the choice. Individuals can always take a trip or move to a location more to their liking. This enhances freedom. But to impose new laws onto others is most often going to reduce over-all freedom.

  16. Rame, you really ought to read Jason Lewis’ book “Power Divided is Power Checked.” I got it on my Ipad for $10. Good read.

  17. I’ll have to add it to my stack of 5 million books to read…

    I have to be careful with others getting me to read books. In 2004, Kerry Shirts forced me to read Blake Ostler’s philosophy book on God, and I had nosebleeds for weeks.

    Besides, 10 bucks when I can read Cato for free?

  18. I’m generally ok with leaving more to the states regarding matters of policy generally than we currently do–drug laws, health care, etc. I kind of like the idea of “laboratories of democracy.”

    However, where a fundamental civil right is at stake (the right to vote, the right to freedom of religion, the right to use birth control, the right to marry, the right to obtain an abortion), I view it as more appropriately a federal issue. Whether it’s possible or not, one should have to get on a bus to go to the next state in order to exercise his or her fundamental civil rights. Nor should anyone be “ecstatic” about the fact that a few isolated states will allow them to exercise their fundamental rights.

    Note that I see the federal role as being to say either (1) this civil right exists under federal law, so states can’t restrict it, or (2) this right doesn’t exist under federal law, so states can decide for themselves whether or not to restrict it. There is no need at the federal level to do anything that restricts individual civil rights.

  19. I actually have a half-written post on this very issue. As a liberal I see the value of states’ rights, and I like the idea of states being able to do something like universal health care and see how it works (thus “laboratories of democracy”), before the entire nation adopts it. And in this era of the federal government being in the business of weakening civil rights with things like warrantless wiretaps and detention without due process, I like the idea of de-centralizing power.

    The biggest problem for me is the so-called race to the bottom. In this scenario the competing states will dismantle regulatory schemes, workers’ rights, consumer rights, and the like in order to attract businesses, which ends up being a big net negative for individual citizens. This worries me a lot.

  20. It eventually will balance out. The requirements of the voters will be noted by those wishing to stay in office. A state can only offer so much to a company, and neglect the taxpayer/voter for so long, before people are voted out of office and others more friendly to the people will come into play.

    That some states may not ensure all “Civil Rights” (I’m not convinced that abortion is one of them), is better than having the federal government imposing its own will upon all. Remember, slavery was not instituted initially by the states, but by Congress.

    For Civil Rights, we have a process to handle some things on the federal level. It is called the Amendment process. We’ve used it to free slaves, give women the right to vote, etc. It was designed to be a difficult process to ensure that most power remained with the states. So, IF enough people want the federal “Civil Right” of abortion, then it should be done through the Amendment process and not an activist Supreme Court.

    The more we turn over to the federal government, the less our overall freedoms are. I do not mind Massachusetts establishing Obama/Mittcare. They are a laboratory of ideas. However, the federal government affects all of us. A federal Obamacare is almost impossible to fix or remove. And it takes away our precious freedoms just as much as the Patriot Act, or the Sedition Acts of John Adams’ presidency.

  21. That some states may not ensure all “Civil Rights” (I’m not convinced that abortion is one of them), is better than having the federal government imposing its own will upon all.

    I think that’s true as long as you’re not the one whose civil rights aren’t being recognized by many/most states.

    If the federal government says I have a right to vote or marry a woman or use birth control or believe Joseph Smith was a prophet or send my child to private school, it has a tremendous impact on me, but it doesn’t infringe other people’s rights and freedoms at all. I’m just not seeing how the vague problem of “the federal government imposing its own will upon all” in such situations could possibly outweigh the problem of people in many states not being able to exercise their rights and freedoms.

    Abortion is more complicated than the other issues I mentioned because it could be (and often is) viewed as a civil rights issue on both sides. With abortion, some people view recognizing a woman’s civil right to abortion as infringing on another civil right–the civil right of fetuses to life. It would make sense for both sides to approach it as a it as a federal civil rights issue. To the extent that the anti-abortion/pro-life side doesn’t and treats it as a states’ rights issue, I think it’s because they know they’re more likely to succeed by saying that there’s no federal civil right and then arguing the issue at the state level.

  22. Anna (and to some extent Jacob S), you are right that there are rights that we have as Americans that supersede states’ rights. Those rights are enumerated in the Constitution. You have a right to free speech and freedom of religion because it’s right there in the First Amendment. No state can adopt laws that abridge those rights. So we agree there.

    The issue is when judicial activists ignore those rights. This is something that both the left and the right should be concerned about, but we live in a time when the left sees judicial activism as good, so the left is less concerned. But let me take you back to 1880. There were judicial activists then too. These activists deliberately ignored the 14th amendment, which clearly calls for equal rights for African Americans. There are some fascinating stories from those days about how southern politicians refused to approve federal justices who supported equal rights. Some of the worst jurisprudence in history took place during this time because it was obvious to all that the 14th amendment called for equal rights, yet judicial activists ignored the 14th amendment because they refused to read the words that were right there in the document.

    My point is that the federal government protects many rights, and there is a process for expanding rights if you think they should be expanded. Congress can pass laws or the Constitution can be amended. But judicial activism — which has been the means for greater abortion rights and gay marriage rights — is not the best solution. What goes around comes around. If we continue to rely on judicial activism on a federal level, we set the precedent for a future time when judicial activism will be used in a way that no liberal or progressive could like.

    Jacob S, let me address the “race to the bottom” issue. This is a classic states’ right issue. You are concerned, I imagine, that states like Wisconsin and Ohio are hurting the rights of public employees, for example. Here is the bottom line on this and why states rights is so wonderful: if you really believe this is happening and it happens on a state level, you contain the damage. If Congress passed a nationwide law against public union collective bargain power, unions are screwed nationwide. If you stand up for states’ rights, unions are only screwed in one state.

    Standing up for states’ rights also creating an escape plan for the people affected. If I lived in Vermont and was about to be subjected to single payer health care, I could leave and go to New Hampshire and avoid it. Opting out and freedom of movement are things we should all agree on.

  23. The trouble with the argument that “rights enumerated in the Constitution” are good and “judicial activism” is bad is that there is no bright line between “judicial activism” and necessary and legitimate judicial interpretation of constitutional provisions. The text of the U.S. Constitution is rarely crystal-clear about what rights it does and does not enumerate. The Fourteenth Amendment states,

    “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.”

    What does that mean? What are privileges? What are immunities? What’s life? What’s liberty? What’s due process? What does it mean to deny someone equal protection of the laws? Does that apply to members of different racial groups? To men and women? To gay people? To the disabled? To noncitizens? To each of them, but to different extents? To what kinds of laws does it apply?

    Even the less controversial-from-a-judicial-activist amendments aren’t that clear when you take a closer look at them. The First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” It only says “Congress,” so can state legislatures ban the exercise of unpopular religions? (They can’t, but only because of judicial activists’ interpretations of this and the 14th Amendment.) Can Congress or the states abridge your freedom to engage in speech that is threatening or constitutes perjury? Sure, even though the text seems to prohibit it.

    To make any sense of the Constitution, judges must create all sorts of doctrines and interpretations. When you don’t like those doctrines, and interpretations, it’s “judicial activism.”

  24. I am reminded of Dr. Martin Luther King Jr.’s words in his Letter From Birmingham Jail, “Injustice anywhere is a threat to justice everywhere”. Some of your argument is good, and makes sense, but we have seen that we have, as you pointed out, a troubled history with states rights, just as we have issues on both sides of the political spectrum with so-called activist judges.

    It comes down to who do you trust the most, the individual states, or the federal government? I know my thoughts on this are likely different from many of you, but our history, and even current events, do not always bode well for states rights really working for the benefit of all. One needs only look at the number of copycat legislative initiatives following Arizona’s repressive (in my view) immigration law, or jumping on the bandwagon of states filing lawsuits over the President’s health care laws, focusing on the individual mandate. In that case, even my current state of residence, Washington, has opted in. The argument before the appeals panel this week did expose a major weakness in those suits, in that states are not individuals, therefore they have no standing in filing lawsuits that deal with that part of the legislation that only affects individuals.

    Ultimately, I come down on the side of a federal standard, given that states will occasionally act irrationally, as in the 14th amendment cases stated earlier. Time will correct those sorts of deviations from a national standard, I believe, and eventually work for the benefit of all.

  25. Anna, the language of the Constitution seems pretty clear to me. It also seems pretty clear that we had activist judges who deliberately ignored or added to that language (how do you get “separate but equal” out of the 14th amendment?) during the 19th century, and we have activist judges doing the same thing today.

    The purpose of this post is not to argue endlessly for principles that people aren’t willing to accept. I’ve made my case, either it is convincing or not.

    Just a reminder: what comes around goes around. The Constitution can be violated by people of all political persuasions. Just remember that when some future right-wing judge or politician tramples the rights of minorities in the name of judicial activism. If we can keep violations on a state level at least we can escape to another state.

  26. Geoff,

    The words “equal rights for African Americans” are not right there in the 14th amendment, though you apparently think it’s obvious that that’s what the 14th amendment means. The words “equal rights for gays and lesbians,” are not right there in the 14th amendment, even though is though I think it’s obvious that’s what it means. What is the principle on which a judge who makes the second interpretation is “activist” and a judge who makes the first interpretation is not?

  27. As to your what goes around comes around argument–I agree that judges of all political persuasions can violate the Constitution. I just don’t see the proper question as one of federal judicial activism vs. states’ rights, but as one of correct judicial interpretations vs. incorrect judicial interpretations. I think most people who talk about judicial activism don’t really understand the long, necessary, and largely positive history of judge-created constitutional doctrines that that underlie almost all of our concepts of what the Constitution does and does not protect.

    Generally, I tend to favor as correct constitutional interpretations that err on the side of individual civil rights whose recognition does not materially affect the civil rights of others.

  28. Anna, as I say, you reach a point in internet life when you are not doing any convincing, you are just arguing. Not really interested in that. This is not aimed at you (you seem like a smart, nice person). Just a general tiredness. I guess I need to take a break from blogging for a while. Anyway, I will try to address your concerns.

    What happened in 1865? The North won the Civil War. The 13th, 14th and 15th amendments deal *specifically* with equal rights pertaining to the Civil War, ie with the rights of former slaves. So, when the writers of the 14th amendment wrote, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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,” it was crystal clear to everybody at the time that they were dealing specifically with the rights of the African-American minority existing in the post-war south. Privileges and immunities clearly dealt with the rights of former slaves to be treated like whites, they couldn’t be denied property or due process, and they should have been treated with equal protection. It was as clear as could be to all literate people in the late 1860s what this meant.

    I understand your point, that it is the job of the judiciary to interpret words based on a lot of criteria that are often esoteric to people who haven’t gone to law school. And my counter-point is: it is activism and the kind of sophistry that the Book of Mormon specifically condemns to take simple words and come up with your own interpretation of them for your own political purposes.

    That’s what I have to say on the issue. Peace.

  29. Ok, I think that means I’m supposed to stop talking about this, so delete this if you like. I appreciate your comment and understand your position better now. I get that many people take the approach of interpreting the text as meaning what the framers/amenders were primarily intending to address in the historical context (“any person” = “non-whites/former slaves” and not others); I tend to focus on the text they actually decided to put in (“any person”) and what it seems to mean.

  30. Loved this thread. Thank you, Geoff, for starting the conversation and Anna for clarifying. In a convo about states rights/marij, I got to thinking about the ramifications on abortion. I couldn’t put my finger on what the difference was. Abortion is a civil right – of course. After a quick read on wiki defining civil rights, I’m at a loss as to why anyone would *not* view abortion as a civil right. “Civil rights include the ensuring of peoples’ physical integrity and safety;”. Women die from improper abortions and any number of complications during pregnancy/birth. Seems to me, abortion fits the definition of a civil right to a T. Where is there room for interpretion on the risk of death during childbirth or abortion?

  31. It is because abortion is not just about a person, but about two people, or at least one person and a viable person. It makes this such a difficult situation. If a person owns a bunch of puppies, does he have the right to put them in a box and drown them in the river? Not an easy question to answer when it comes to life, liberty and the pursuit of happiness.
    The issue on abortion is that the Constitution establishes those things not denied the States are to be left for them to decide. There is nothing in the Constitution that gives a woman the “right” to her fetus. And that is where the difficulty lies, and why overall it may be better to leave such a decision to the States. It ensures greater freedom over all, without trampling on potential rights.

    It isn’t a perfect situation, but it ensures greater protections for freedoms than when the feds always step in. And the more power we give the feds, the less freedom we have. Right now, the feds believe they have the right to grope anyone that wants to fly in an airplane. Does it make us any safer than we were in the previous 9 years after 9/11? I don’t think so.

    Freedom means there will be risks. Security means we lose freedoms. The Soviets fed their people, but they also had them spying on each other. Guess what? We’re now spying on each other here to make sure no one is a terrorist. Last year, Homeland Security came out with a list of things to warn us about terrorism. It included conservative churches, those opposed to abortion, etc. Wouldn’t it make us more secure if we did the FDR thing and just locked away everyone that frightened us?

    With states’ rights, there will be safe places for gays, and there will be safe places to obtain abortions. And for those not ready to accept such lifestyles or beliefs, there would be conservative states for them to dwell in.

    Realize this, if it had not been for a huge federal government that deregulated only a part of the banking industry, but kept the security and protections in place, we would not have had this huge economic bubble we’ve had. The banks would have taken fewer risks, because they would know they were risking too much. Power has moved to the feds and big banks, and it will eventually leave us with few true freedoms in the end.

  32. Allison, I agree with Rame’s answer, and I will add another point. There are three natural rights: the right to life, liberty and property. This means you have these rights given to you by God. These are rights that don’t interfere with other peoples’ rights. You have a right to live, but you don’t have a right to go around killing other people because you are interfering with other peoples’ rights. You have a right to your liberty, but you don’t have a right to make people slaves (as the 14th amendment makes clear) because you are interfering with other peoples’ liberty.

    So, when it comes to abortion, you certainly have the right to your life. So, aborting a fetus that would kill you should be a clear case and should be allowed. Beyond that, it gets very complicated. Personally, I believe abortion should be legal until the second or third months in all cases because we are not sure yet that the fetus is a person and therefore has its own right to life. But I am definitely against abortion on demand (meaning for any reason) in the sixth month. That fetus is viable and is now its own person and its life must be protected.

    The states were already dealing with this issue in the 1960s and early 1970s before the Supreme Court unnecessarily got involved. States would have arrived at a good mixture of laws that would have made the vast majority of people happy. This why you should favor states’ rights even in the case of abortion.

  33. The key issue the Supreme Court should have dealt with back on Roe v. Wade was the issue that some states were disallowing women to cross state lines to get an abortion. On return, they would be arrested and imprisoned or fined. This falls directly into the Commerce clause, which the Supreme Court should have been involved with. Because people are free to go from state to state and be involved in commerce, a state cannot block that person from leaving the state to enact commerce elsewhere.

    The Supreme Court instead tried to regulate new rights, which is outside their scope. Had they disagreed with current law, they should have encouraged the states to look at all the data before making a decision.

    Just remember, the same Supreme Court that decided Roe v. Wade also decide on Dredd Scott, equal but separate, and other bad decisions that later had to be over turned.

    In reality, when the Civil War began, many of the states were already discussing ending slavery. This included Virginia. It was the federalizing of laws that imposed heavy and punitive burdens on the South that drove the South to secede. Had the North been a little patient, we could have obtained freedom for blacks without the deaths of hundreds of thousands.

    Remember, even after the 14th Amendment and the idea of Federal intervention in the South, federal politics turned away from blacks and began the racist policies for almost a century after Reconstruction failed. It failed because politicians sought votes, white votes, and backed away from rights for blacks so they could get into office.

    Remember Senator Robert Byrd was a KKK grand marshall. He voted against Thurgood Marshall as Supreme Court justice, and against the 1964 Civil Rights Act. Only in the 1980s did he change his attitude. I’m not convinced it was a sincere change, or a political choice. Regardless, federal power in the hands of such people kept blacks from voting, even though they had the right. With the support of the Supreme Court, they had “equal but separate” toilets, water fountains, restaurants, etc.

    I don’t see how we can believe the federal government has our best and our freedom at heart. Remember, they now are enslaving us under the Patriot Act via the TSA. It is bad enough to have a state or two doing bad things. It is incredibly bad when the feds are controlling all 50 states to such an extent.

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