Monday, May 22, 2017

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.

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