In the wake of the passage of Obamacare, the federal ruling that Prop 8 is unconstitutional, to name a few, there has been much discussion about states’ rights recently. Touting the importance of allowing states to enact their own laws and reject subservience to the federal government, states’ rights proponents hold that the more local nature of state governments gives them wider power than the federal government. While I agree with the sentiment that individuals have more of a say at the state level than the federal level, I have to challenge the notion that states have the right to enact laws that violate basic rights.
I believe this for a very simple, but important reason: States don’t have rights. People do.
Most states’ rights supporters invoke the 10th Amendment to legitimate and concretize their beliefs. However, the 10th Amendment has very specific wording:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The 10th Amendment nowhere provides for any rights of the states. Rather, it delegates powers, the ability to do things, to the states. And there are two conditions on the delegation of any powers to the state: that they are not articulated in the Constitution to the federal government and that they are not reserved by the people themselves. What’s more, the 10th Amendment comes after the 9th Amendment, which also has very specific, and noticeably distinct wording:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
So not only are the powers of the states qualified by the authority of the people, but the Constitution explicitly says that the rights of the people shall not be denied, even if not enumerated in the Constitution. With the incorporation doctrine of the 14th Amendment (that all rights protected by the federal Constitution may not be infringed upon by the states), this means there is a Constitutional guarantee that individual rights will not be denied by any government, state or federal, within the United States.
States do not have a carte blanche right to enact any law they want, even if done democratically. Their decisions are not irrevocable or immune from oversight. The use of state power is limited by the rights of the individuals within the state. If states violate the rights of those individuals, then there is just cause for intervention whether by the people or the federal government.
Federalism does not mean that the federal government has restricted power and states have unlimited power. The purpose of federalism is to provide multi-lateral checks on government to protect individuals from the excessive growth of any particular layer of government. The value in this decentralization of authority is that each layer is meant to stop the other when it is abusing its legitimate authority. For the very same reasons that we need to check abuses of federal power, we need to check abuses of state power. Those checks don’t just come from the people and local governments below, but also from the federal government above as well.
Yes, we need to restrict the federal government’s power. Yes, we ought to delegate authority to the states when we can. But no, don’t think that states can do whatever they want or are somehow an inherently better type of government than the federal layer. The power of any government, federal or state, is derived from the people and accountable to protecting their liberties. Individual rights trump state power every time. Speaking about “states’ rights” confuses the point. Governments have legitimate powers. Individuals have legitimate rights. Powers and rights are very different things.
The “States’ Rights” cause is silly a misnomer. It should be a “States’ Powers” movement, focused on the authority of the states to check the decisions of the federal government to protect the rights of its citizens from inappropriate government intervention in their lives.
Once this delineation is made, the appropriate justification for states challenging federal decisions can be more clearly articulated and utilized. However, it may also highlight the inconsistencies of those who wrongly advocate a “right” of state government to abuse any of the rights of individuals.