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?

The other day my wife and I read an editorial which listed the unpleasant situation facing young people today, which cited the difficulties they faced, one of which was that more than half of the people aged 18-34 worked in a job to pay the bills, not because it was a career choice. Then we looked at each other and laughed.  We weren’t laughing to ridicule anyone, but because the entire idea of “career choices” is so American and so recent a phenomenon… and yet it’s almost a given today that it’s a hardship not to have a “career choice.”  Except for the upper class and upper middle class, which comprise perhaps ten percent of the population, there haven’t been many career choices for most people in the United States for most of its history. Throughout history, young people either followed in their parents’ craft or trade or in that of another crafter who needed a spare pair of hands.  People felt fortunate to be able to make ends meet, and many could not even do that.

For most of us who predate the Baby Boomers, even if we were able to find a job in a field of our choice, the positions open were usually limited and involved more than a few trade-offs, including moving all over the country.  There were usually many qualified applicants for each job, and in many fields this is still true.  There are usually several hundred applicants, if not more, for each opening in my wife’s profession, and in our entire working lives, neither of us ever has had the luxury of making a choice between two jobs, and more than once took jobs that were anything but ideal to “pay the bills.” This was true for most people of our not-quite-that-advanced age.

So… it’s no surprise that we laughed at the idea that “taking a job to pay the bills” was thought to be such a mighty hardship on younger workers. Jobs exist to fill the needs of those who offer them, not to meet the career aspirations of workers.  That’s frankly one reason why I wrote long hours after the day job for years… because it was the only way I could get to where I wanted to be, and I know I’m exceedingly fortunate to have been able to get where I am – and it’s also why I still work long hours… because I never want to be at the whim of an employer again.  But… to even hint that career choices are some sort of right or that today’s young workers are facing an unprecedented change in not having that many “career choices”… that is laughable.

What I find actually amazing is that we as a society have progressed over the past century or so to the point where half the young workers are actually working in a field of their choice. If that is indeed true, then it marks real progress… but it also wouldn’t hurt to remember that such is not the case in all too many countries across the globe… and it’s anything but a “right.”

According to a recent article in the Economist, the United States has become “America the Overregulated,” and that’s quite a claim, especially from a British publication. There’s been a great deal of rhetoric about the amount of “unnecessary” federal regulations, particularly from the far right, but also across the political spectrum.  Given the opposition to excessive regulation, why does it continue?

The simple, and largely accurate, answer is because there’s political pressure for more regulations to protect everything from workers to threatened and endangered species.  Personally, I believe the majority of that pressure comes because of real concerns, but that raises another question.  Why do we need regulations to deal with these concerns?

That’s where matters get interesting.  One reason often cited is that, in a world economy, goods are purchased largely on price, and companies will do anything they can to keep costs down – unless effective regulations preclude practices that are unsafe, unhealthy, polluting, or environmentally degrading.  Yet… over the past two years, U.S. corporate profits have soared, while wages have remained largely stagnant.  At the same time, more and more wealth and income have gone to the top 1/10^th of one percent of the U.S. population.  People – those who have jobs – are working harder and longer, and usually under more stress, just to keep what they have… but the rich get richer.

Maybe… just maybe, we’ve been looking at only part of the problem.  Would all of those regulations be necessary if there weren’t so much pressure to be more and more profitable?  And that such profitability depends on lower costs and greater productivity?  What if those at the top of the pyramid, and I’m talking about the 1/10^th of one percent, not the top one or two percent, didn’t get to keep over 85% of their income?

Would investment bankers and CEOs be quite so inclined to push everything and everyone to the wall to get their $100 million bonuses if the government took 90% of everything over, say, $10 million?

A study from the University of Southern California found that a high percentage of young investment bankers who worked 80-120 weeks developed a wide range of stress-related illnesses and conditions that would likely reduce their life expectancy and that such conditions contributed to the high rate of burn-out in the field. We’ve also seen a huge growth in the use of steroids and other substances that build muscles in young adulthood, especially for young men seeking a professional athletic career, but such artificially enhanced muscular abilities almost invariably result in early death among those who wish to be professional athletes.  Would the temptation be quite so great, if 90% of those $10-$100 million contracts went to the government? Would all the outsourcing take place if there weren’t so much pressure to be more and more profitable?

It seems to me that a great deal of the excesses in our society have been driven by greed… but if government were the beneficiary of the greatest excesses of that greed… would the pressures be so great to cut all the corners?  Would regulation after regulation be so necessary to curb the excesses of the financial sector?  Or to protect workers from greater and greater pressure to produce more and more with less and less?

Just a thought.

Republican presidential candidate Rick Santorum recently declared that President Obama’s acts as President were about “some phony theology… not a theology based on the Bible.” Frankly, I find an assertion such as this incredibly disturbing, because what Santorum is effectively saying is that public policy should be based on his reading of Christian theology.  As I’ve noted before, as have Constitutional scholars for more than a century, while the Founding Fathers did mention the Deity, they made it very clear that specific theologies – or theological belief systems – were not to be a part of government.  Yet Santorum is apparently attacking the president – and anyone else who doesn’t believe as Santorum does – for failing to base their policies and acts upon specific doctrinaire theological points.

Like it or not, the President of the United States and the Congress are responsible for the health and welfare of all the people of the United States and for allowing all of them the same freedoms, as set out in the Constitution and as interpreted, again, like it or not, by the U.S. Supreme Court.

Now, according to the best figures I can find, 75% of Americans define themselves as members of faiths considered Christian by most theologians.  Fifteen percent are atheists, and the remaining ten percent belong to other faiths.  Of those considered Christian, 25% are Catholic, 15% Baptist, and 4% evangelical or Pentecostal Christians, meaning that, in rough terms, essentially half of the American people, assuming they follow the theological guidelines of their faiths, might agree with Senator Santorum’s theological beliefs. The problem with Santorum’s position is that as much as half the population might well not agree, and fully one quarter of all Americans are not believing Christians at all.

In addition, a study conducted by Baylor University, based on interviews with 35,000 people, definitely a healthy sample, showed that more than 40% of the people had changed their faith and belief at least once in their lifetime, which also suggests that “faith” is far less constant than the protections in the Constitution.

Even more to the point, Santorum is not talking about freedom of religion, but about imposing restrictions on all members of society, restrictions based on his theological biases, and restrictions with which tens of millions of Americans do not agree.  Those who agree with the senator are not precluded from following exactly, and with no persecution whatsoever, the dictates of their own conscience insofar as their own property and bodies are concerned.  Under the Constitution and current law, however, they are precluded from imposing those beliefs on others, and effectively limiting the rights of half the population [women]. The senator clearly wants to change this.

It’s taken a long time to reduce discrimination based on color, creed, or gender… and Santorum’s use of religion, whether intended or not, would essentially turn the clock back to a time of greater discrimination under the guise of “true religion.”

Putting power in the hands of religious true believers has been a disaster wherever it’s happened, whether in the time of the Inquisition, the Salem witch trials, the ayatollahs in Iran, the Taliban in Afghanistan, or any other number of instances.  Doing so here wouldn’t be any different… and it would be a betrayal of the Founding Fathers that all so many of those of Santorum’s stripe quote so much when it suits their needs… and ignore when it doesn’t.

From the considerable amount I’ve read about the early history of the United States, one of the goals of the Founding Fathers was to protect the government – and the people – from the heavy hand of religion… and to keep organized religion from infringing the rights of the people.  So, it’s with a sense of irony that I find so many religious zealots of so many types complaining essentially about what the Constitution was designed to do – to stop government from being a tool of religion.

When the Supreme Court decided in Roe v. Wade that women had a right to abortion, the Court essentially came down on the side of individual freedom, asserting that the “right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the district court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

Under the Constitution, that sort of finding is the Court’s to make, and unless Congress and the states see fit to amend the Constitution, or the Court extends, modifies, or reverses its ruling, that ruling is the law of the land.  Period.

When a state legislator proposes laws to forbid schools from teaching about birth control unless it’s abstinence and only abstinence, that legislator is attempting to restrict the freedom of information, and to determine exactly what information is to be conveyed, for religious purposes. This is particularly heinous because it restricts an individual’s knowledge.  When legislators oppose civil unions for same-sex couples, they’re effectively declaring that the state sanction such a legal union only on the basis of religious traditions and practices.  When states or legislators require businesses to close on Sunday – as many did at one time – that is imposing the requirement of Christian religions on commerce.  Why not require closure for the Jewish Sabbath… or on Saturday for Seventh Day Adventists?

One of the founding principles underlying the Constitution of the United States was an understanding that there’s a significant difference between freedom of religion and state imposition of religious requirements on everyone. It’s one thing to allow someone to close their business on their holy days.  That’s allowing individual freedom.  Requiring everyone to close on Sunday is using government for religious purposes.  Several years ago, here in Utah, constituents pressured local lawmakers to forbid civic functions on Monday nights because that interfered with the LDS practice of Monday home evenings.  Thankfully, such prohibitions weren’t imposed.

Virtually all widely accepted ethical, moral, or religious beliefs agree that such acts as theft, assault, forgery, fraud, murder, rape should be prohibited, and their practice punished.  The obvious conflict between freedom and legal codes lies in the gray areas where various beliefs and religious codes disagree.  But under the U.S. Constitution, as articulated by the Founding Fathers, personal freedom of action or speech should not be restricted unless it poses a clear and present danger to others…. And all too many “religiously-associated” attempts to restrict freedom of action and of speech have little or nothing to do with preventing such clear and present dangers, and far more to do with imposing restrictions on others in furtherance of one religious doctrine over another.