States’ Rights?

The big old idea behind much of the Republican Party today is the idea of states’ rights, that somehow devolution of federal “overcontrol” and federal powers to the states will not only solve our problems but give us greater freedoms.  It’s a lovely argument, but it doesn’t hold water if you look at the origin of so-called states’ rights and what they really mean.

The fundamental issue behind the vast majority of issues debated under the rubric of “states rights” is the issue of property rights, in particular property rights as they existed in the seventeenth and eighteenth centuries in English speaking lands, i.e., the property rights of landed white males.  At that time, not only were real estate and structures considered property, but so were wives and all unmarried females, as well as underage males [unless they were the sole surviving heir, requiring a guardian to protect that property], and, of course, slaves.  The initial impetus for the American Revolution was the infringement of property rights of white males in the colonies without their consent or participation.

After the revolution, among the first champions of states’ rights were the Federalists of the New England states, who proposed secession from the union at the Hartford Convention of 1814-15 over the War of 1812, which they opposed because the war effectively infringed on their trade with England and Europe… and their property rights.     In 1832, the state of South Carolina passed a Nullification Ordinance, declaring null and void the federal tariffs imposed in 1828, because those tariffs increased the costs of British and European manufactured goods being imported to the south and thus threatened the value of southern cotton prosperity. President Andrew Jackson sent a flotilla to blockade South Carolina ports, and threatened to send federal troops as well.  Following that, the next to raise the issue of states’ rights were the states of the confederacy, and they wanted those rights not only in order to continue the right to enslave others, but also to ban the dissemination of anti-slavery literature in the southern states, because both acts infringed on their rights to their property – slaves in particular.

After Reconstruction, the states’ rights position centered on the use, largely in the south, on ways to restrict voting rights of blacks, equal access to education and other facilities. In fact, in 1948, the so-called segregationist “Dixiecrat party” was officially called the “States’ Rights Party,” and the term “states’ rights” was an open “code” term for supporters of segregation.

Over the last fifty years, the usage of the term has broadened, but in general it’s been used to identify opposition to federal laws or regulations unpopular in specific states.

In 1964, the state of California enacted a Proposition 14, which nullified the federal Fair Housing Act, a proposition later overturned by the U.S. Supreme Court.  Again, the state was acting to allow discrimination in housing, by supporting the “right” of owners to refuse to sell or rent property on the basis of the buyer’s or renter’s religion, creed, or color.  What Proposition 14 attempted was to continue as a property right the absolute right of the seller to determine who could purchase property on the basis of the purchaser’s color, creed, or other factors not related to his or her financial ability to meet the sales price.  Proposition 14 would have established in law an inequality in freedom to purchase or rent property, arrogating the rights of the property owner over the rights of some groups of buyers, resulting in a diminution or restriction of freedom.

Another “leftover” issue from the white male property owner’s rights is that of reproductive freedom.  In the eighteenth and nineteenth century, as property, women had no such rights, even if their lives were threatened by childbearing. Both before and after the U.S. Supreme Court decision on abortion [Roe v. Wade] many opponents of abortion insisted, and still do, that whether abortion should be legal should be a matter of state law, effectively making the point that they want states to limit women’s freedom to determine what happens to their own body.  Regardless of the moral issues, in practical terms, the demand for states’ rights is a way to obtain restriction of personal freedom, in effect a carryover of male property rights, and in no way an expansion of freedom.  The ramifications of Roe v Wade do not require any woman to have an abortion, even in the cases of rape or incest.  They leave the decision to her.  To give that decision to anyone else is essentially re-affirming that child-bearing women are property.

The issues over the teaching of birth control, evolution, climate change are not about faith or states’ rights; they’re essentially about power over what children should be taught, and they’re also an extension of the “property mindset.”  Those who oppose such teaching are effectively stating that they do not believe that children should have the freedom to be exposed to such knowledge, and that parents regard their children as property and should control to what knowledge those children should be exposed.

Other “states’ rights” issues follow a similar pattern. Another “states’ rights” issue was raised with the Obama Affordable Healthcare Act.  A number of states have filed lawsuits over the provisions, but what tends to be overlooked is that close to 50 million Americans have no healthcare – and that’s the largest number and percentage of uninsured in any advanced western nation.  Furthermore, under the previous practices of the insurance industry, the majority of the uninsured not afford health care or could not obtain it at all.  The legislation effectively curtailed the “rights” of the insurance industry to refuse coverage, but expanded the rights of 50 million people to obtain it.  How does this restrict overall freedoms?

A great many of the federal regulations that states’ rights activists and others find excessive and burdensome, such as environmental regulations, financial regulations, and even regulations requiring access for the disabled, are about restricting property rights because the unrestricted exercise of those rights infringes the freedom of others.  The right to operate a factory or a power plant without regulation allows pollution or air and water and can impair the health of not only the environment, but of hundreds of thousands, if not millions of individuals.  The same is true of the Food and Drug acts. Do some regulations go too far?  Undoubtedly, but those regulations were enacted because the unrestrained exercise of property rights proved unhealthy to millions, and in a heavily populated world, everyone’s rights impinge on everyone else, a fact conveniently overlooked by those who champion “states’ rights.”

Here in Utah, virtually every piece of legislation bandied about on the states’ rights platform is not about more rights, but about restricting rights.  The legislature is now considering a bill to prohibit photographing of farms and agriculture, because animal rights groups might target abusive Utah farmers.  It has restricted the dissemination of information about birth control to students.  It is attempting to take over the administration of Medicare and Medicaid in order to limit services.  It is seriously considering a law to claim all federal lands as state lands, so that it can grant mineral leases to private industry, and it has already given the state the power to condemn private lands to allow access to all mineral and mining production areas.  Similar restrictive laws are being attempted and enacted in a number of other states as well.

I’m sorry… but the states’ rights argument is almost always used either to restrict the freedoms of large numbers of people or to maintain or enhance the rights of small numbers of people, if not both, and historically, that has almost always been its use, even as those people who champion the supremacy of truly old-fashioned private property rights claim to be for the rights of the people.

Just which rights for what people?


22 thoughts on “States’ Rights?”

  1. Therman Campbell says:

    Dear Mr. Modesitt,

    I’ve been a big fan of your writing since I read The Silent Warrior when it was first published (somehow missed Dawn initially:)) and I have agreed with many of your views, both expressed by the characters in your books and on this blog, but I have to disagree strenuously with your implication that the Obama Affordable Healthcare Act increases personnal freedom. Any legislation that requires a competent citizen to purchase a commodity (i.e. health insurance) merely to exist is the antithesis of personnal freedom and liberty. I don’t deny that there are problems with healthcare in our country but this legislation does not address them and from what I can see, simply compounds existing problems and causes new ones as well.

    Best Regards, Therman.

  2. I’m sorry, but the legislation does address the problem of people without health care, not completely, obviously, and clearly not in a way of which you approve, but your answer exemplifies the polarization of our political spectrum. Too many people say that something doesn’t address a problem if it’s not addressed in a fashion of which they approve. I’d certainly admit that the Affordable Health Care Act is anything but perfect, but I don’t see any of the “alternatives” proposed by the opponents addressing the problem of the uninsured — only proposing fixes to the current system, and from what I can see, none of those fixes address the uninsured. Now… if those opponents wish to state publicly that we as a nation do not wish to pay the costs, financial and social, of a more comprehensive system, then they should say so and continue the debate from there, but attacking an attempt to address the issue of the uninsured is in fact an issue of rights and power. You don’t want your rights NOT to purchase insurance infringed, while the supporters of wider health care availability want the freedom and ability to protect their health. Your position may in fact be “right” by many standards, but my points about the trade-offs between rights still stand.

  3. Also, as a nation we do and have required, constitutionally, people to do affirmative things which they do not wish to do. We require them to hand over portions of their income, and we have required young men [through the draft]to hazard their lives in service to their country. Both of those impose far greater hardship than being required to purchase insurance… and in almost every state in the union automobile insurance is required as a condition of owning an automobile and driving.

  4. Joe says:

    Allowing corporations to impose direct taxes on citizens strikes me as a very slippery slope in direct conflict to freedom. I would much prefer a government health program run directly by the government. Despite Santorum’s feverish nightmares about euthanasia such programs in Europe are much more efficient than privatized care since 30% is not skimmed off the top for corporate profits. This is a precedent we may all regret, even if I do agree with you that the previous status quo was also bad.

    Your analogy to car insurance seems weaker in that it is a cost of owning a car (which I need not have) rather than a corporate head tax. As to the draft, I believe that is violence of the state against the individual, and is simply wrong and indefensible.

  5. You may well be right, but we’ve already gone a ways down that slope with income taxes. I’m not arguing all out for the Obama approach, because it has a LOT of problems. What I’m trying to point out is there’s always a conflict of rights. One of the basic issues underlying health care is whether all people have an right to relatively equal access to health care or whether health care is only a commodity for sale to those who can afford it. No one wants to touch that issue even with a hundred meter pole, so to speak.

  6. You may not need a car, but in practical terms most of America does. Therefore, most people are in fact compelled to buy automobile insurance.

  7. Joe says:

    While they may be less practical, there are still ways around having a car (public transportation, taxis, car pooling, riding a bicycle, Amish horse and buggy, and walking). There’s no way around paying corporations for government mandated health care insurance.

    Driving a car is a dangerous activity (3000 deaths/month in the US), where people are often as not harmed by others. Car insurance protects other people from one’s own mistakes. Health insurance is mostly about protecting oneself (flu shots aside).

    Since most medical bankruptcies occur to people who have medical insurance, one can conclude that medical insurance companies are good at dodging the bullet we pay them to shield us from. Giving them guaranteed revenues will further reduce their incentive to provide good insurance.

    We’ve already tried helping companies that do a bad job. The bank bailouts have not improved bank behavior. Bill Black, one of the main regulators during the S&L crisis, does not believe anything has changed, and another financial crisis is pending. Corporations are set up to ensure that the people running them only worry about improving the bottom line. It is illogical to expect any other behavior from them.

    To address your main point, will devolution of powers from the Federal level solve all our problems? No, but it might make some of them more tractable. It’s been shown that we are unable to judge the competency of people who are more competent than ourselves. This means that it is very unlikely that a democracy will elect a person to office who is more than slightly more competent than the average. So you might expect representatives from industrial states to be more competent at industrial questions, and those from agricultural states to be more competent at agricultural ones. However once they are all collaborating on the same legislation, the same averaging effect applies. Net result: congress people and senators just do their best to get pork for their home state by trading favors and don’t worry too much about the resulting mess they are creating. Thus we end up with security theatre at our airports, useless military projects, bridges to nowhere and the like… and elected representatives who do more harm to our freedoms than any terrorist could.

    If these United States were still a union, I think you’d have different dynamics. More people would probably feel they had a meaningful voice and would participate in politics. Slavery would probably disappear since it’s actually quite inefficient (a slave cost around $50K, making slaves uncompetitive with machinery let along cheap chinese workers). Similarly discrimination’s economic cost makes it unlikely to survive (want the prospect of a “nice white” couple, or want this month’s rent?) States that insist on teaching children nonsense would also be outcompeted, and suffer emigration much like many of the 3rd world countries today. In fact the US would probably look more like the EU, where the different countries’ populations have different reactions to the same laws and influence their governmental policy (France rejecting genetically engineered foods, or the eastern european countries rejecting ACTA). With more popular participation, and different regulations across Europe, European transnationals are probably more regulated than American companies, and more fearful of public reaction to their misdeeds making them adopt consistent ethics across all their markets.

  8. Therman Campbell says:

    First, excellent post Joe!

    Mr. Modesitt, I was trying to respond to the question posed in your para. about ObamaCare – ‘How does this restrict overall freedoms?’. Mandating health insurance for everyone doesn’t give freedom, it takes it away by removing choice. The question on whether taking this choice away from Americans is desirable is an entirely different issue. However, in my view, this type of legislation discourages personal responsibility and continues a trend of curtailing the rights and responsibilities of the citizens of this country. Whether this is a ‘good’ or a ‘bad’ thing will take decades or generations to sort out. For myself, I want to live in a society where personal liberty and responsibility is the rule, not the exception.

    1. You’re missing one basic point. One’s “liberty” is also dependent on one’s economic ability. One’s economic ability, especially these days in the USA, is predominantly the result of the economic status of one’s parents and has become more so over the past generation. Therefore, one’s ability to exercise one’s rights is far from just a matter of “will” or even raw ability. It’s also a matter of education/training, and it’s getting harder and harder to get both if you don’t have either money or above average raw ability.

  9. Derek says:

    I disagree with a specific statement you made…

    I’m not sure where you came up with 50k, unless it’s the one time cost for purchasing a slave in the south adjusted for inflation, but it just doesn’t sound right.

    Slavery is inefficient only if they are working by hand and you are not forcing said slaves to use machinery. Slaves are also capable of having children, who would be considered the property of the Slave-Owner, reproduction would be fairly cheap…

    To say advances in technology and international trade would make slavery obsolete is just silly, it would just make it more efficient.

    Also, your example for discrimination stands contrary to actual history and events, look to the southern states if you will… Are you saying that the institutionalized discrimination there would have collapsed naturally due to economic reasons? I don’t think that would be the case.

    1. Derek says:

      To Joe… not Mr. Modesitt…

      1. Joe says:

        One time cost adjusted for inflation for a “good specimen”.

        If you own a slave, you must feed him, tend to his health care needs, education, etc. Slaves that have children need to take time off to look after them. On top of it, there’s capital risk: the slave may have an accident, you may need to change your business, and your slave may need time to adapt. Your slave’s skill set may no longer be valuable, so you might not be able to sell him/her. Or your slave might just be past his/her prime. So there are costs to having a slave.

        Moreover, people aren’t meekly slaves, so there is a real additional cost of subjugating/terrorizing them. Recall the horrific torture implements used in the South. If you educate slaves to use machinery, they will learn to read, and can use that technology to work together against you. Recall that slaves were forbidden to read. The costs of repression rise significantly.

        There are a lot of costs which you don’t have if you simply employ people for low wages. When you don’t need them any more, you can just fire them. If there’s a large enough supply of potential employees, their salaries are guaranteed to be close to subsistence costs, and it is hard for them to revolt.

        While we don’t have slaves, we do have robots. Have you ever wondered why we employ people to stuff netflix envelopes, work in warehouses to put things in boxes, or employ them to build iPhones by hand? It’s cheaper, that’s why.

        My contention is that slavery makes little economic sense in a world where there are few jobs that do not require literacy which have not been mechanized. The exceptions are sexual slavery (no literacy) and debt slavery in countries like India with low mechanization.

        Now, none of this should be taken to construe any sympathy for slavery. However I think people adapt to the systems they inhabit, and behave so as to maximise some value. This value may be physical nourishment, it may be social status, it may be some set of moral values or it may be aesthetic satisfaction. If you were born a slave owner on a cotton ranch, at a time without machinery, it would be very hard for you to free your slaves and go against your peers. However if machines were available to pick cotton, and were cheaper, you’d be a fool not to modernise and let your slaves go.

        You speak of history. In England, there was a whole class of previously invaluable worker who tilled the fields, were responsable for moving people around the country, but who were displaced by machinery. Their value fell below the cost of feeding them, and their population collapsed from 3.2 million to around 100,000. They’re called working horses.

        So yes I believe most institutionalized discrimination is likely to collapse if there is enough economic incentive. That does not mean there is no value in helping it collapse faster… African Americans are still suffering the long term effects of having been subjugated to slavery. It certainly harms people. And this argument has no bearing on personal prejudice which science shows correlates to some extent with the biology of individual racists, as well as their life experiences (etc).

        1. Derek says:

          Thank you for clarifying.

  10. j says:

    I’m wondering, Mr. Modesitt, after reading your analysis and comments here, how it was possible that you fit into the Reagan administration. I seem to remember Carter arguing in favor of universal health care in his debate with Reagan, the one where Reagan gave his famous ‘There you go again…’ response. Of course there’s also the ‘nine most terrifying words in the English language.’ Naturally I understand your reticence to be too direct about current hot-button political issues on your authorial blog. But I’m wondering if your views have changed since Reagan, or if the Republican party has changed, or if you just didn’t like the Reagan era Democratic party…? I’m just trying to piece a larger picture of your views together from your many short blog articles.

  11. I honestly believe the Republican Party has changed drastically. Nixon actually proposed health care reform and created the EPA. Teddy Roosevelt created national parks and opposed business excesses, and tried to break up business monopolies. Even Herbert Hoover supported humanitarian projects. Dwight Eisenhower created one of the biggest public works projects ever with the creation of the interstate highway system, and famously warned of the dangers of the military-industrial complex. Barry Goldwater, Mr. Conservative, believed in a woman’s right to choose on the abortion issue. At the same time, the Democratic Party in the 1970s and 1980s was horribly corrupt and abused its power in Congress as much as, if not worse than, the Republicans have done in recent years.

  12. Therman Campbell says:

    Hello Sir,

    In your last response you stated: ‘You’re missing one basic point. One’s “liberty” is also dependent on one’s economic ability.’. I couldn’t agree with you more and I didn’t miss this point, I just didn’t see how it applied to the issue we’ve been discussing and I fail to see how the health care act improves the situation. The way I understand it, it vastly increases the customer base of the insurance companies who will find loopholes to increase their profits even further. Now, if the legislation had gone a regulatory route to curb the predatory practices that are prevalent in the health care industry, we wouldn’t be having this discussion and the economically average and below average persons would be in much better shape. I am not against health care reform but I want that reform to be at least effective if it is going to chip away at individual rights. The only true problem (in my view, some may disagree) the current legislation solves is ensuring that those with pre-existing conditions cannot be denied coverage but it does this by causing a host of other problems. Best Regards –

  13. j says:

    In your view, did this change in the Republican party happen in the 80s, or in the ‘contract with America’ congress of the 90s, or has it just been a gradual process over the last 30 years?

  14. From what I’ve seen it actually began at a grassroots level even earlier, when the Democratic Party rejected segregation, and disenchanted southern segregationists turned to the Republican party. Then Bill Bright and other evangelical Christian leaders began to convert some Republican members of Congress, and this led to the realization by Republicans that fundamentalist stands on issues led to winning elections in many districts… Combine that with the founding of the Heritage Foundation by ulta-conservative Republicans in the early 1970s as a reaction to the Brookings Institution… and the Republican movement to the far right was already well underway long before the “Contract with America.”

    1. Mayhem says:

      j & Mr. Modesitt

      You might find it interesting to read the latest post from Adam Curtis on the rise of fundamentalist religion in politics,

  15. Carl says:

    This post might make sense inside your bubble, but it makes no sense in the real world.

    At the state level people have some democratic power. At the federal level, they don’t.

    White males created almost all of the property, so it’s not unreasonable that they should have some rights to it.

    A fetus is NOT a woman’s own body, and it is NOT their right to choose. Don’t get me wrong, I’m an atheist, so I understand the difference between an embryo and a human being. But when I support abortion, it’s not because of a supposed woman’s right to choose whom to murder. It’s because it’s not murder.

    I hope you meant to say “to stop abusive animal rights activists from attacking innocent farmers”.

    I do like universal health care. But there needs to be a trade-off that the government is allowed to force people to live healthier lives. Otherwise it’s not fair to ask the government to bail people out when they get sick.

  16. I think you’ve just made most of my points by example.

    Also, as many of my readers have pointed out, and I agree, legal rights are the guarantee to opportunities and protections against various types of discrimination, not guarantees of entitlement.

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