Wrestling With States' Rights

By Douglas V. Gibbs

"Good and evil are in conflict over the remaining freedoms and possessions the decent people of the world have remaining." - - A. Ralph Epperson when explaining the cover of his book, The Unseen Hand.

A person asked me, after a discussion last week during a Constitution Study I lead, that if the Bill of Rights applies to the federal government, and not to the states as we had discussed, "it creates a problem with the states having the ability to trample the very rights our Founders fought to protect."

My response to that question is, "Who are the states? The answer is, 'The People'. The Founding Fathers were intent on ensuring that the States be able to attend to their own affairs without federal interference. The States had to come to their own conclusions on a number of issues. For example, the Second Amendment applies to the federal government, so if a state truly wanted to ban guns, they could. If you give the federal government, via the belief that the Bill of Rights must be enforced on the individual States, the ability to force the states to not ban guns, then you also give the federal government the authority to force the states to ban guns should the federal government come to the conclusion that a nationwide gun ban is for the "common good."

If one state makes a foolish law, it does not affect the rest of the nation. If the federal government is given the power to make similar foolish laws, it leads us down the road to tyranny. If you don't like what a State has done, as a citizen you have one of three choices. You can put up and shut up, work to change the law, or move to a State that is more in line with your thinking. That was a part of the original intent of the Founding Fathers when they wrote the U.S. Constitution.

When one is confronted with the responsibility of conveying the original intent of a bunch of dead men after the group you are addressing has received a lifetime of education from a public educational system they thought to be the teachers of the truth, even as they listen to what you say the old teachings tug at their shirt-tails. We feel like what we've been taught is the truth, and any explanation to the contrary feels like an alternative reality, a foreign artifact, or simply the work of uneducated revisionists.

A person in my position, faced with a group of people asking questions tainted by their previous education, may elect to abandon the endeavor, or I can approach the situation by presenting evidence that is indisputably the truth, and directly connected to the persons whose original intent is in question.

Following the teachings of the professors of higher learning may seem at first the proper course, for they are self-proclaimed experts, or so academia says so. They have spent years studying the U.S. Constitution, and the complexities of case law that accompanies anything to do with Constitutional Law. Interpretations and assumptions run amok as the opinions of a handful of men in black robes take their place on the shelf of Constitutional Things. But what must one think if those conclusions by learned men are to the contrary of the writings of the originators of the Constitution? How can we trust the leadership of people whose very ideas of what the Constitution ought to be contradict the evidence within the original writings of the very men that labored for five months to provide us with the document that is The Law of the Land? Did those educators in institutions of higher learning not realize they were deviating from the original intent of the U.S. Constitution? Or is it possible that certain government leaders, and the learned minds of the educational system, planned to subvert the original intent of the U.S. Constitution by orchestrating Constitutional Law, and manipulating the public so that the puppeteers may lead this nation to a desired conclusion that is not in line with the original intent of the Founding Fathers?

The nature and scope of bringing to light the original intention of the writers of the U.S. Constitution, with the presence of an opposing ideology that intends to do whatever it pleases regardless of the Constitution, and then later attempts to fit its actions into a twisted interpretation of a couple clauses of the U.S. Constitution, seems to me to place even the most published articles by the Founders into a peculiar position. That "Madison's Notes on the Constitution" (nhccs.org/Mnotes.html), The Federalist Papers (foundingfathers.info/federalistpapers), the veto of a Public Works Bill by President James Madison on March 3, 1817 (constitution.org/jm/18170303_veto.htm), and the various letters written by men like James Madison, Thomas Jefferson, and John Adams are not only not revered as important works that support the original intention of the Constitution, but are even reviled or misrepresented by those that consider themselves liberal intellectuals, is an absolute travesty. These elitists have ensured that the works of the Founders remain unknown, or like the famous "Danbury Letters" between the Danbury Baptists of Connecticut and Thomas Jefferson, be misrepresented to fit the machinations of a system of thought whose only logical conclusion is tyranny. Leftism has deemed that these writings should be hidden or manipulated in the hopes of derailing Americans who seek out the true original intent of the Founders. A system outside the law of the U.S. Constitution is a disordered state, and despite government's "good intentions" to present to the people a "compassionate" government, unless it follows the limiting principles of the U.S. Constitution, the system is doomed to fail, and lead America into the clutches of a tyrannical system.

From the very beginning there were forces determined to make America less of a Constitutional Republic, and more of a big government nightmare. Alexander Hamilton understood the original intentions of his brethren, and articulated those intentions (for the most part) in his share of writings in the Federalist Papers. After all, it was his fellow New Yorkers the Federalist Papers were appealing to, because aside from Alexander Hamilton, the entire New York delegation walked out during the Constitutional Convention for fear the document was actually giving the federal government too much power. But outside the Federalist Papers, Alexander Hamilton's aim was clear. He suggested during the convention that the President of the United States should be an American King. Hamilton lobbied for federally controlled banks, heavy regulations against the private industry, and federal control over the rights of men. Then, his followers in statism like John Marshall and Joseph Story, directed the courts in the very same direction.

The big government dreams of the Federalists died when Thomas Jefferson pulled off his presidential victory in 1800. By the 1820s the Federalist Party was nothing more than a memory. But the desire for more federal control over the states lived on, and finally culminated in the 14th Amendment.

If the 14th Amendment makes the Bill of Rights apply to the states, and if a state violates one of those articles, then under that model who would be in charge of enforcement? Eventually, the case would work its way through the courts and wind up at the U.S. Supreme Court, giving the federal government the power to make sure the States follow those laws. As in the case of the 2nd Amendment, the federal government would be given the power to ensure the States abide by the federal government's interpretation of the law, and the states would be forced to not ban guns. On the surface, that seems like a good thing. On the surface it seems appropriate to let the federal government make sure the states don't break any of the provisions of the U.S. Constitution that was intended to specifically apply to the federal government. Power, however, is a peculiar thing, and if power is granted one way, it also enables the power to be used the other way.

If you give the federal government the power to force States not to ban guns, aren't you also giving the federal government the power to do the opposite?

The contract of the U.S. Constitution is a legal and binding agreement between the States and the federal government, authorizing the federal government the right to exist, and granting a few limited powers to the federal government so that it may function in a manner designed to protect the union. The States are The People, and The People are the enforcers of the Constitution on the federal government. It is The People's responsibility to enforce protection of their rights on the States. In other words, if a State was to take away a right, like the right to bear and keep arms, it can only do so if the people allow it.

The 14th Amendment, Section 1, in its first clause 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." Section 5 reads, "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

The word "uniform" enjoys regular mention in the U.S. Constitution. If laws are passed, the laws are supposed to be applied uniformly to all American Citizens. Likewise, if a State passes a law, it is expected as per Article 4, Section 2 of the U.S. Constitution for those laws to be applied uniformly because "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." Section 1 of the same Article also provides that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." In other words, moving to a different State does not make you immune to being, for example, still in debt in another State.

Prior to the abolition of slavery in the United States Blacks were nothing more than property in the slave states. The aim of the 14th Amendment was to ensure that Blacks, and any other members of society that may be treated outside of uniformity under the law based on their race, color, or previous condition of servitude, were treated no differently than White Americans. Unfortunately, the process took well over one hundred years to come to fruition, and still today sometimes suffers a few setbacks. But the question, really, is should the States be responsible individually to handle their own affairs, even when it comes to civil rights issues, or should they be forced into conformity through a federal government mandate?

Going back to the wording of the 14th Amdendment, which gives statists the proverbial foot in the door when it comes to dictating to the States what they can and can't do, notice that the provisions of that amendment are intended to ensure laws will be applied uniformly by the States, including rights and liberties, but it does not say the federal government can determine what those rights and liberties are. It does not say that the States have to abide by the Bill of Rights, only that the laws are applied equally regardless of race, color, or previous condition of servitude.

For example, in the case of Loving v. Virginia in 1967, which was a landmark Supreme Court case that by federal mandate ended all race-based legal restrictions on marriage in the United States, the 14th Amendment was used as the Constitutional authority for the 9-0 decision. The argument on all sides of the case seemingly have merit, and in the end the federal government was given the opportunity through a court ruling to force upon the States the will of the federal government. I am not arguing that race-based legal restrictions on marriage ought to have remained in place. I do believe, however, that the States should have the final say on that issue. To grant the federal government the power to dictate to the States what they can and can't do in regards to an issue as small as marriage, no matter how good the intention, opens up the opportunity for the federal government to dictate to the States what they can and can't do on other issues as well. The decision of Loving v. Virginia was more or less in line with the provisions of the 14th Amendment, but it shows how dangerous what Lincoln and his government did is to the Founding principles of a limited federal government, and State Sovereignty.

The idea that the 14th Amendment applies the Bill of Rights to the States, however, is going too far with the interpretation of that amendment. Such implications of the law were concocted by those that wish to give more power to the federal government, and many of us, including some members of the Supreme Court of the United States, has fallen for that rubbish. We are even taught in school that federal courts supersede local courts, and federal law supersedes local law, and the fact is, that is simply not true. The federal government exists because the individual states allows it to, and the Constitution was written to protect the people, and the States, from the federal government, not to protect the federal government from the people and the States.

This whole argument of States' Rights is a lot of what was behind the secession of the States prior to the outbreak of the War Between The States. ABC News liberal commentator Cokie Roberts last April falsely proclaimed that "You have these fourteen states attorneys general saying that they want to have the court overturn the recently passed health care law. I must say, I was just with my grand kids at Fort Sumter, and the notion of nullification made me extremely nervous because it was, of course, the first step toward the Civil War." What Cokie doesn't seem to understand is that it wasn't the States standing up as sovereign entities that led to the Civil War. It was the fact that the federal government was trying to unconstitutionally force the States to do what the federal government ordered them to do that led to the War Between the States. Nullification was not the cause of the Civil War, unconstitutional mandates applied by the federal government was.

Abraham Lincoln had decided that The South was going to give up slavery, and fall in line with the rest of the States, or else. He was willing to do whatever it took to force the States to conform, even if it meant using military force to ensure the States did what the federal government wanted them to do. The abolition of slavery is a worthy cause, and I am not arguing against the need to do away with that great evil in the United States, but the manner in which it was accomplished was unconstitutional, and cost the lives of 700,000 young men by the time the Civil War was over - all because the federal government desired to push its agenda on the States. The dispute between The South and the federal government, though slavery was a key ingredient, was more about States' Rights, than it was about slavery.

With the rise of abolition groups in The South, and the advent of the Cotton Gin, without the American Civil War slavery would have been abolished by the States individually within the next ten to fifteen years, and such a Constitutional method of change would have been accomplished without the death and carnage of the Civil War, and without the federal government overstepping its bounds in regards to State Sovereignty.

The 14th Amendment is a tool for the federal government to force its will upon the States. Should there be slavery in the States? Of course not. But by the U.S. Government forcing the States to follow their dictates because the federal government says so has opened a can of worms the Founding Fathers never intended to open.

The Equal Protection Clause of the 14th Amendment was intended to ensure all people were treated equally under the law because the writers of the 14th Amendment wanted to ensure that the emancipated slaves, and their posterity, received all of the rights and privileges of any American Citizen. The problem is, as right as the intention of the 14th Amendment seems, it gives the federal government, through liberal interpretation, the opportunity to control the States, and initiate the deterioration of State Sovereignty.

The Founding Fathers understood the evil of slavery, and desired to abolish the practice of owning fellow humans in the United States. However, they realized that the worldwide practice of slavery was not something they could eliminate immediately due to economic and agricultural concerns, and due to the fact that the States were sovereign entities and must be entitled the opportunity to abolish slavery on their own accord, not by the dictates of a federal government. In the hopes of beginning the process of abolishing slavery, they wrote Article I, Section 9, Clause 1 of the U.S. Constitution. The clause stops the importation of slaves into America in 1808 by allowing the federal government to make laws in relation to such prohibition. On January 1, 1808, Congress did just that, passing a law prohibiting the import of slaves into the United States. However, they did not go farther with the federal involvement in the issue of the abolition of slavery because of State Sovereignty. Once a slave was inside the State's borders, the issue fell under the State's jurisdiction. In other words, the process of abolishing slavery inside each state, as far as the Founders were concerned, was the State's responsibility, and ultimately that made it the People's responsibility.

So back to the question about the State's ability to trample on the rights of the people, of which the federal government is prohibited from doing by the 9th Amendment and the Bill of Rights: it is the People's responsibility to make sure their State does not trample on their rights as well, because the States are the People, and the People are expected to be directly involved in the running of their own State. State Sovereignty must be protected, for good or for bad, because without States' Rights, the alternative is an overpowering federal government dictating to what the States can and can't do, and that is a recipe for the eventual rise of an authoritarian tyranny - something that only the States, should they stand on the Constitutional principles of a limited federal government, and the principles of State Sovereignty, can fend off. In other words, if your State comes to the conclusion that all guns must be banned, in the end it is nobody's fault but our own for not making sure the State abides by the wishes of The People, and at that point it is more than critical that we take our States back.

Take back the States, and the federal government will follow.

-- Political Pistachio Conservative News and Commentary

States Rights Scares Cokie Roberts - Political Pistachio