Federalism, State’s Rights (2 of 3)

The question has always been: Is this imbalance of the majority of power belonging to the states workable? Philosophically on paper it looks good, but pragmatically does it work? Sometimes a principle is too idealistic and therefore unworkable. Other times the principle is right, it’s people who fight against it and make it unworkable, or troublesome. So which is it? After giving it much thought I don’t believe it’s idealistically wrong, but it is too idealistically formed. I do believe our Founders writing our new Constitution really did understand this and why they included Article V:

“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

This could include granting the federal government more power taking some of their power away from the states. It’s why the Constitution moved that governing line to the 20-yard line and could in agreement between all the states (at least 2/3rds) move it to the 30-yard line.

But here is the serious rub; when progressivism came into our government through Theodore Roosevelt and really took root in Woodrow Wilson our political governing drastically changed, and not for the better. We began in 1789 here in Article I Section 3:

“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.”

We ended in 1912 here in Amendment 17:

“Clause 1. The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years”.

This was a very major change to our government and to a large degree, though never fully accepted, mooted state’s rights over federal rights. We the people spoke through our House of Representatives, but remember we are not One State, but several states, and the states protected their rights through the two senators each state had. They were chosen by state legislators to speak for the state. This was the balancing between states and the people. The 17th Amendment made the Senate pragmatically superfluous when Senators were now to be chosen by the people, not beholden to the state effectively leaving no one to speak for the State. Progressivism was nothing more than Marxism that is for all its language about the people is nothing more than state controlled politics. It’s about erasing the idea of “natural” rights making rights the prerogative of the State. Natural rights can’t be rescinded, rights granted by the state can change, and as we’ve seen are.

One of the first challenges to what are state’s rights and what are federal rights came in 1832 in a U.S. Supreme Court case, Worcester v. Georgia:

“The U.S. argument being that the Cherokee nation was a ‘distinct community occupying its own territory in which the laws of Georgia can have no force.’ Any dealings with the Native American Tribes, Chief Justice John Marshall concluded, were up to the federal government, not state governments. ‘The whole intercourse between the United States and this nation . . . is, by our constitution and laws, vested in the government of the United States.” (Quoted from Our Lost Declaration by Senator Mike Lee.)

How did we get to this fight? While a correct ruling, and I will get to why, President Andrew Jackson would not enforce it as he in particular was behind much of the forced displacements of Native peoples. This wasn’t a case where state’s rights was a winner, more the Federal government failed to govern.

Over the century leading up to the new Constitution of the United States, each colony/state had its own constitution defining the behavior of the state government and the people’s behavior. Some things legal in one state might not be legal in another. The relationship between the citizens and the state might be different from state to state. While being independent from each other they did support very similar governing philosophies as you would expect in that each colony was made up of mostly British citizens fleeing Britain for religious and political and individual freedom. While the British technically ran the colonies each colony was given the right to form its own government and have a legislative body and a court system. It is true that this independence clashed with King George III as he demanded more loyalty from the colonists, more money to pay for England’s war with France, especially the Seven Years War (French and Indian War) in America. Each State would retain its governing power over its citizens with this major caveat in what is known as the supremacy clause:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding” .(Article 6 Clause 2.)

If any state has a law or creates a law that conflicts with duly established Federal law the state must abandon that law in favor of the Federal law. The Preamble to the Constitution including these words inside the Preamble “life, liberty, and property/happiness” is not the law, but inside the Constitution and the Amendments—which is law—are guarantee for life, liberty, and property/happiness.

Let’s return for a moment to that issue in that U.S. Supreme Court case, Worcester v. Georgia. From the National Archives we read this:

“From 1774 until about 1832, treaties between individual sovereign American Indian nations and the U.S. were negotiated to establish borders and prescribe conditions of behavior between the parties. The form of these agreements was nearly identical to the Treaty of Paris ending the Revolutionary War between the U.S. and Great Britain. The negotiations ended in a mutually signed pact which had to be approved by the U.S. Congress. Non-tribal citizens were required to have a passport to cross sovereign Indian lands.

“From 1832 until 1871, American Indian nations were considered to be domestic, dependent tribes. Negotiated treaties between tribes and the U.S. had to be approved by the U.S. Congress.

“In 1871, the House of Representatives ceased recognition of individual tribes within the U.S. as independent nations with whom the United States could contract by treaty, ending the nearly 100 year old practice of treaty-making between the U.S. and American Indian tribes.”

We find two things happening from the above history: paragraph 1 clearly shows Federal law, in this case a treaty, had precedence over State actions, in this case Missouri’s attempt to remove Indians from their land making it illegal (not to mention immoral) to remove Indians off their land; and 2, beginning in paragraph 2 ending in paragraph 3 even the United States began to renege in its own laws.

A treaty is first an agreement between the President of the United States and whatever party to the treaty. It does not become binding and law until it is approved by the Senate, after that it must be followed. A treaty can become legally broken only if the Senate holds a vote to end the treaty. The Paris Accord signed by President Obama and walked away from by President Trump was not a legal treaty and had no authority upon the United States.

“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” (Article II Section II Clause 6.)

It doth appear that nobody wants to follow the law if it’s inconvenient to do so. And so we come to the 1860s, to another clash between state’s rights and federal rights, slavery. Technically slavery violates the “life, liberty, and property/happiness” affirmed in the Preamble and in the Bill of Rights both at the federal level and state level. For what they felt as security reasons in forming the Constitution the Founders compromised with slavery. Those states that were predicated on slavery argued it was their state right to own slaves. The issue wasn’t settled, just deferred. 

Abraham Lincoln came into office at the very time that pimple of slavery was ripe for breaking and the squeeze was slowly being applied to break it. While I see it as a false issue Lincoln saw the argument between state and federal rights as a serious one caught in the dilemma whether the federal government could violate state’s rights and unilaterally free the slaves. The political argument on his side was that it had to be done through an Amendment. To moot the argument states ceded from the Union.