Clearing Up The Issue Of "States' Rights" And Federalism - Again

One of the greatest tricks of the peddlers of faux American  history  is to have altered the meaning of federalism  and to have concocted the notion of "states' rights." 

Given the current political climate fueled by pseudo-conservatives - in trying to push "state autonomy" - we ought not be surprised that many press  articles are attempting to bamboozle average citizens saddled with average educations.

Also, because the ‘life cycle’ of most Americans’ political-historical memory barely stretches 5 years, this is increasingly easier to accomplish.  Thus, with a single prominent article it is possible to hoodwink too many and especially get them to accept as facts canards that are anything but. A case in point is the recent WSJ article 'Divided We Rise' (May 20-21, Review, p, C1) by Jeffrey Rosen, the President (if you can believe it) of the "The National Constitution Center" in Philadelphia.

The gist of Rosen's piece is that "people on the Left and the Right are turning to federalism as a way to resolve contentious issues and to calm our polarized politics"

That's a cute, convenient take, but absolute balderdash. He writes first that "federalism has long been a cause on the Right" but in fact, what they've really embraced is anti-federalism. The original meaning and intent of genuine federalism  was put forward by Alexander Hamilton (and even James Madison) in The Federalist Papers. This was a strong union with strong central government - not a loose affiliation with states basically deciding for themselves how their citizens will live and scarcely any checks from the central authority.. 

Madison actually predicted that if the Philadelphia Convention was unable to forge a stronger national government the result would be sectionalism or monarchy, He wrote to Virginia Governor Edmund Rudolph: "Our situation is every day becoming more and more critical...No respect is paid to the federal authority and people of reflection unanimously agree that the existing confederacy is tottering to its foundation."    Madison also was fond of using an analogy originally offered by John Dickinson at the Philadelphia Convention.

Dickinson compared the federal government system to the Solar system. Just as the planets (analogous to states) could not exist as part of that system without the centralized force of gravitational pull of the Sun, so also the federal system could not exist without the centralized pull of the federal government – leading the diversity of states to be one cohesive entity as a united confederacy. Thus do we find the Constitution includes limits on STATE governments.

THIS was the original heart, core and meaning of federalism. Somehow over the centuries it was mutated, however, into anti-federalism or worse, "nationalism" (as Rosen does).  This is in total contrast to the standard definition of nationalism, i.e. "The strong belief that the interests of a particular nation-state are of primary importance." In other words, that a given nation's interests trump those of all others. This is embodied, for example, in Trump's  "America First" codswallop..

Rosen also errs in terms of states' rights when he quotes the (related)  miscasting in a quotation from Rep. Zoe Lofgren ("top Democrat on the House Judiciary Committee's immigration and border security sub-committee"):

"The Constitution, specifically the Tenth Amendment, protects states' rights and it prohibits federal actions that commandeer state and local officials."

Rosen goes on the assert "the framers of the Constitution would be pleased with this emerging consensus", e.g. between federalism as state autonomy and states' rights allegedly embodied in the 10th amendment. Alas, both suppositions are wrong. I already showed how the original meaning of federalism had been twisted, so neither Madison or Hamilton would recognize the word as used by proponents' of "states' rights" today.

States rights itself is an egregious mutation of the actual meaning.  Prof. Garry Wills (‘A Necessary Evil: A History Of American Distrust of Government’, Simon & Schuster, 1999) further reinforces this point in his chapter ‘Constitutional Myths’(p. 108). He notes that citizens alone possess rights, which neither the states nor the federal government share. Both the latter retain powers and prerogatives, but not rights. Hence, the subtext is that rights can only accrue to flesh and blood citizens, not legal or geographical artifacts. What Rosen and Lofgren have done is to conflate rights with prerogatives and powers and ended up spewing bunkum, given the former are NOT the same as the latter.

Lofgren and Rosen also need to read the Ninth Amendment, which states that “the people retain unenumerated rights” "The people:" here refers to flesh and blood citizens, not to a bunch of contractual abstractions (states), or to corporations. As Wills emphasizes and underscores (ibid.):


“The states have no natural rights. Their powers are artificial, not natural – they are things made by contract.”


Hence, the term "state's rights" is bogus, in error. States have prerogatives, not rights, because states exist as governmental entities not as persons or  thinking individuals.  It follows that that states' rights has obviously been a device - like "federalism" construed as state autonomy- to try to dispense with federal government regulation and oversight,  or the extension of federal welfare, or benefits - especially in the realm of health care.

As Prof. Wills has pointed out, the unenumerated rights are all those rights not already specifically declared or described in the existing document. The Founders thereby realized and understood there could exist rights in the future they hadn’t conceived of at the time of the Constitutional Convention, and so allowed those (then) undefined rights to become realized later. In other words, the rights allotted citizens are not limited to the rights actually and specifically delineated, i.e. in the Bill of Rights.

This opens up the basis for positive rights, not merely negative ones. A case in point is the conviction that there are only “negative” rights inherent in the Bill of Rights, and there can be no “positive” ones.   A negative right implies that there are ‘x’ things the government can’t do to you, e.g.  take away your guns or your property without good legal basis ("eminent domain"). . By contrast, positive rights assert there are actual positive rights to which you are entitled under the Bill of Rights, say health care and privacy. Most of those on the Right, who have only passing acquaintance with the Federalist papers, assert positive rights don’t exist, but they are wrong. They merely show they fail to grasp the concept of an "unenumerated right".

No surprise then this meme is pushed by the Right (and some ignorant folks on the left acting as useful idiots) to undercut the basis of any kind of national health system  ("Medicare for all") or even a national benefit system, say like Social Security. "Let the states decide and do it if they want!" is the new mantra, say of Paul Ryan in trying to push his Medicare voucher system.

It also explains the yen of HHS head Tom Price to slash spending on Medicaid over all by giving states the option of a "block grant" or a per capita allotment. So here in Colorado, for example, that may mean allocating the state a fixed amount for next year of $100m. That then will have to suffice to cover the needs of some 125,000  citizens, mainly frail elderly, poor, unemployed or under-employed.  And further, this will supposedly be effected despite Colorado now dealing with an estimated $1.3 b deficit.  Anyone who thinks Colorado or any state can deliver is living in la-la land.

If the Constitution's intent was to limit federal government power it certainly doesn’t say so. In Article I, Section 8 – the longest segment of the document, we see an extended declaration of congressional power. (The States are mainly afforded their power in the articles of confederation). In addition, it ends by clearly delegating to Congress the ability “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the Government of the United States, or any Department thereof."

The reality is the power of the federal government is needed now more than ever, not only to protect citizens' basic rights - especially against the specter of local hate crimes (such as the African American student in College Park, MD recently stabbed in the back by an Alt Right freak) but also to ensure our basic citizen protections ("regulations") are up to par, and benefits are secured and not allowed to be sliced by the states i.e. after being given "block grants" by the anti-federalists in the federal gov't.

More Proof Americans Are Among The Biggest Dopes On The Planet

And, when I use the term "dopes" it doesn't necessarily mean only those with sub-par IQs. After all, the cartoon image shown actually refers to one "research engineer" - Evan Jon Wright - who is a Mensa member, and incredibly believes that if CO2 was absorbed by the oceans they'd have turned to soda pop!

But the range and level of ignorance extends far beyond that example, to even more basic nonsensical beliefs which helps to keep this country the laughing stock of the world.

Among some of the finds from a recent poll and survey:

1) Roughly 73 percent of Americans believe Jesus was born of a virgin, while only 61 percent believe the Earth’s temperature has been warming. Even worse, only 40 percent of the Americans who concede that climate change is happening will admit that it’s primarily due to man-made activity.

This simply boggles the mind given the only examples of virgin birth ever documented have been mainly confined to some species of reptiles, never mammals. Yet people willingly buy into that hogswill. And yet anthropogenic global warming which has been firmly documented, is dismissed by nearly two fifths of 'Muricans. Something is seriously wrong with American brains here or their education - maybe both!

2) 77 percent of Americans believe in angels.

Incredibly, an AP/GFK poll in 2011 found that more than three out of four Americans believed angels literally exist, but also found that more than four out of 10 of those who never attend religious services believe it.  A poll taken five years earlier found that 81 percent of Americans believe in angels, essentially meaning the number had gone unchanged.

Let us grasp here that angels are defined as supernatural beings which means they are invisible as well as immaterial. When asked for evidence of the existence of angels people often cite some unusual or exceptional remembrance or personal anecdote - but never hard direct evidence. 

3) 55 percent of Americans believe that the Founding Fathers established this country as a Christian nation in the Constitution.

This figure comes from a First Amendment Center survey taken in 2007. These Americans really need to read Thomas Jefferson’s rewriting of the New Testament, which he felt perfected Jesus Christ’s teachings by removing all theological and supernatural elements from his life story. They may also wish to read the Treaty of Tripoli, Article 11:

Article 11 of Treaty of Tripoli :

"As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen; and, as the said States never entered into any war, or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries"

(http://www.stephenjaygould.org/ctrl/treaty_tripoli.html)

4) 1 in 4 Americans believe the sun revolves around the Earth.

This incredible finding comes from a National Science Foundation (NSF)  study conducted earlier last year. Oddly, or maybe not,  this statistic and the figure for non-acceptance of man-made climate change are, sadly, about the same—bear in mind that, whereas evolution and the Big Bang theory are relatively new to our collective consciousness, Copernicus and Galileo cracked our solar system’s biggest secret roughly five centuries ago. It would be no less ludicrous for one in four Americans to believe that the Earth is flat.  Again, this shows a major deficiency in Americans' science education, and explains why they do much worse than other nations on mathematics and physics tests administered over the years.

5 ) Only 60 percent of Americans believe in evolution.

According to a 2013 Pew Research poll, 33 percent of Americans believe that “humans and other living things have existed in their present form since the beginning of time.” Among those who believe in evolution, 32 percent believe that modern organisms evolved through natural selection, while 24 percent believe that evolution occurred through the direct intervention of God. By comparison, 97 percent of scientists believe in evolution.

Let us also understand that there is no such thing as "God -directed evolution". Asserting such in order to try to render faith compatible with science is like trying to square the circle. The key point is that evolution requires no outside, external agent in order to enable speciation, diversity. Natural selection and mutation are sufficient drivers for the process. 

6) 51 percent of Americans don’t trust the Big Bang theory.

This refers to the scientific theory explaining the origin of the universe, namely its original rapid and violent expansion. .According to an AP/GFK poll from earlier last year, slightly more than half of all Americans were either “not too confident” or “not at all confident” that the Big Bang happened. This same survey also found that only 27 percent believe the Earth to be 4.5 billion years old, which is the consensus figure among scientists.

The Big Bang finding is actually not that surprising given the basis of the theory inheres in thermal physics, kinematics and most Americans haven't even taken a course in basic high school physics. So their "lack of confidence" is actually a justified lack of confidence in their own knowledge of physics with the ability to apply principles to unfamiliar theories or conditions. 

7) Only 44 percent of Americans are confident that vaccines don’t cause autism.

According to a University of Chicago study taken last year, 20 percent of Americans believe “vaccines cause autism and other psychological disorders,” while another 36 percent weren’t sure enough to agree or disagree with that statement.  If Americans knew more, of course, they'd be aware that autism is more plausibly traced to toxins in the environment, such as present in pesticides - than in any vaccine component. (The main suspect in vaccines, thimerosal, is no longer present. 

8) 48 percent of Americans think the Civil War was about states’ rights, while only 38 percent of Americans believe it was over slavery.

While the 2011 Pew Research survey that yielded this statistic might lead you to believe that there is legitimate debate over the cause of the Civil War, there really isn’t: Over 90 percent of historians with graduate degrees accept that it was prompted by opposition to the election of Abraham Lincoln on the grounds that he would prohibit the expansion of slavery into the Western territories. Although the Southern states argued that they had a legal right to secede because of their sovereignty as states in a federal union, it was their opposition to Lincoln’s policies on slavery that incited them to leave the Union.

Apart from that there really is no such thing as 'States' rights".  States have prerogatives, not rights, because states exist as governmental entities not as persons-individuals. Prof. Garry Wills (‘A Necessary Evil: A History Of American Distrust of Government’, Simon & Schuster, 1999) further reinforces this point in his chapter ‘Constitutional Myths’(p. 108). He notes that citizens alone possess rights, which neither the states nor the federal government share. Both the latter retain powers and prerogatives, but not rights. Hence, the subtext is that rights can only accrue to human individuals.  As he puts it (ibid.)

“The states have no natural rights. Their powers are artificial, not natural – they are things made by contract.”

Can we possibly reduce the level of American dopiness?  One would like to believe so, but so long as a fractured, fragmented media exists - what many have called "media Balkanization"- it is not likely to happen. The chronically ignorant will still gravitate to those media outlets that merely confirm their already skewed, unfounded beliefs and unless we return to the Fairness Doctrine (eliminated during the Reagan era) there is no chance of a corrective. They will remain ensconced in those bastardized niches and the rest of us - in the fact-based realm - will have to contend with them and do our best to educate them when and where possible.

This divergence might be tolerable except that the entrenched ignorance and misconceptions (such as #8 above) also translates into voting. This means the more ignorance -based voters we have the worse this country will become . This was only recently manifested in the atrocious finding that 59% of Americans support some form of torture and a large bunch actually believed they were defending freedom by going to see (or buy online) the god-awful muck 'The Interview'.

Thomas Jefferson once noted in his Notes on Virginia that the "people are the only safe depositories" of governance, truth and rectitude, but this is contingent on the "improvement of their minds."  If that mental improvement and acuity isn't evident in a populace  then their government is likely to degenerate and become corrupted since the people (as supposed guardians) have become so inept and uneducated as to leave their governance to the  power-hungry "rulers" alone.  Yet this is what appears to be happening in this country. Polls taken, such as after the series of Snowden data releases, and now after the CIA torture report, indicate that too many Americans have become sheep and ceased to be wary citizens. They have thereby left the fight to the rest of us who are 'on' 24/7 and perceive how the country is declining at a horrific rate. 

No one said citizenship was easy, or automatic. But, that just means one has to be aware that this honorable calling has - in the last 30 or so years- been driven to the sidelines by the "consumer". But consumers are not citizens, they are more akin to cattle - as noted by Erik Larson in his terrific book, The Naked Consumer.  Larson noted how consumer monitors in stores regularly referred to shoppers as "grazing like cattle"(p. 167).

One thing is clear: If you are like cattle, dumb, numb and not long for the meat grinder - you can't be doing your duty as a citizen. You are more an exploitable, brainwashable puppet. Sadly, the more such puppets are germinated the more rapid will be our nation's decline.

See also:

http://www.smirkingchimp.com/thread/jaime-oneill/60302/american-schnooks-the-people-who-can-be-fooled-again-and-again-and-still-again-not-to-mention-a-time-o

Two Dumb States File Pot Lawsuit Against Colorado - Can You Believe It?

Question: Does the oft misrepresented principle of "states' rights"* mean that a couple states can overturn the voting preferences and state amendments cast by a neighbor state? If I represent Louisiana can I file a lawsuit against Mississippi for not using its educational funds properly - or building too many casinos? If I live in a gun control state like New York can I file a lawsuit against a state like Virginia because too many guns purchased there are ending up in NYC with dire consequences?  If I live in Nebraska and Oklahoma can I file a joint lawsuit against Colorado because "too much retail marijuana is flowing into our states and we can't control it....BWHAHAHAHHAA!"

Clearly not  - because if all those things could happen, then we'd have chaos from coast to coast. Each dumb state (that would actually believe it can inveigh on another's voting priorities- which entails issues of states' prerogatives* not rights) would demolish the fabric of the country by continually undermining the ballots cast by citizens in other states to promote or legalize assorted behaviors, actions..

Yet when I picked up The Denver Post Friday, there on the front page - midway down- was the headline:

'Nebraska, Oklahoma Sue Colorado Over Pot Law'

And even wifey, currently suffering from the H3 N2 variant of flu could only scream - mostly through her nose:

"ARE THEY NUTS!?"

Well, probably more dumb than nuts if they really think they can get this before the Supreme Court and win..  I mean, good god, what a couple of dumbo whiners! SO you're too cheap to spend the needed money to enforce your own repressive anti-pot laws and so you blame Colorado for your woes? What are YOU smoking?

Even the Post in its editorial yesterday called this effort bullocks since the two states couldn't even quantify the alleged damage they're suffering. For example, how many total ounces (or pounds)  exactly are transiting into their states from CO in a given month or year?  (Which would clearly disclose violation of the part of CO law prohibiting cross-state transport of MJ.) Unless they can quantify the extent of injury  it's basically an empty complaint and has no legal heft. I'd even go as far as to assert their evidence is wholly anecdotal, not even rising to the level of 'circumstantial'.

The technical wording of their grievance according to the Post::

"Marijuana flows from this gap into neighboring states, undermining Plaintiff' states own marijuana laws, draining their treasuries and placing stress on their criminal justice systems."

Oh, BWWAHHAHAHAHHAAAA! Mayhap you have too damn many laws to enforce, and IF - I say IF you backed off, especially on the pot laws, you'd need less money to lock people up or enforce your dumb, overly restrictive laws. (See my Dec 7th  post, 'Yes, We Have Too Damned Many Laws').

Fortunately, our attorney general, John Suthers(a Republican, btw) is prepared to go to the wall on this gibberish, even though he himself was never a fan of Colorado Amendment 64  which  gave the green light to set up pot retail shops two years ago. But at least Suthers respects the law and the will of the people (56 percent of CO voters affirmed the passage of 64, including a slim majority in conservative El Paso County).  As he noted (ibid.)

"It appears the plaintiffs' primary grievance stems from non-enforcement of 'federal laws regarding marijuana as opposed to choices made by the voters of Colorado'"

Which is spot on correct. But merely because those 2 regressive states - among many other Red states, choose not to challenge the federal law (placing MJ on the controlled substances list)  and refuse to put up their own amendments, doesn't mean they have license to take down Colorado's.  And if the funds are too steep for all the pot enforcement they desire, well hell, do what CO did and enact higher state and excise taxes to pay for the MJ you allow. But don't whine on about Colorado's amendment and how it's straining your treasuries.

Anyway, AG Suthers is prepared to go to the mat on this, as he should be - as defender of Colorado laws, even those with which he might disagree. Meanwhile, Robert Mikos of Vanderbilt University - an expert on the intersection of federal power and state MJ laws, has noted (ibid.)  that "Oklahoma and Nebraska can't simply force Colorado to join their fight" - e.g. against any use of MJ. He also added that "congress can't force states to criminalize marijuana".

As for the Supreme Court, it is more likely than not they are sane and rational enough (one hopes!)  to see things as Prof. Mikos does. If, OTOH,  they acknowledged these two states'  egregious claim of CO violating the "Supremacy clause" then all states had better watch out for what they put on ballots. My guess, like Suthers, is that the SC will dismiss this lawsuit for the empty bollocks it is and deal with real, substantive matters.

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* States have prerogatives, not rights, because states exist as governmental entities not as persons-individuals. Prof. Garry Wills (‘A Necessary Evil: A History Of American Distrust of Government’, Simon & Schuster, 1999)