State’s Rights. Earlier this month a Republican, an intelligent and thoughtful fellow of high reputation, remarked that he is for states’ rights.

One hundred years ago the Democratic Party wore the conservative label. During the 19th century the Democratic party supported or tolerated slavery, and it opposed civil rights reforms in order to retain the support of Southern voters. States’ rights was used in ways that gave it a bad odor. 

The notion of states’ rights was used to justify the maintenance of slavery in southern states; by free states to justify not enforcing fugitive slave laws; and continued to be employed in the 20th century to justify opposition to the Civil Rights at of 1964–a measure enacted over a 56-day filibuster and in spite of the NO votes of 21 of the 22 Civil War states’ senators, all Democrats at the time.

Hearing the words states’ rights my mind snapped to the 1960s usage. Surely this intelligent and thoughtful Republican had something different then the defense of slavery and Jim Crow in his mind when he said, “states’ rights.”

I imagine he meant Freedom—freedom of the states to manage their own affairs, free of intrusion by the federal government.  

Freedom is a Republican value; a thing Republicans value. Not that all Americans don’t equally desire a government that allows the maximum of personal freedom and a minimum of federal meddling in state government matters.

In fact, that is the way it is supposed to be—our federal constitution says so. Right there in the Bill of Rights, the 10th Amendment. To wit: “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 Bill of Rights serves to protect our fundamental rights from our federal government.  Fundamental rights being those rights that derive from common law and those enumerated in the federal constitution and statutes. And in state constitutions and statutes, as well.

The post-civil war 14th Amendment enhanced the power of the federal government to protect fundamental rights. Empowered the congress to protect fundamental rights from state governments and from persons when the state government does not do so. To wit: “nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” and “ The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

The exercising the power to protect fundamental rights from persons the congress enacted the 1964 civil rights act.  Cafe owners, thereafter, no longer had the right to refuse service to anyone.

It seems the bad odor the notion of states’ rights acquired during the 19th and 20th century has largely wafted away. (Except for curmudgeons like me.) So that now Republicans are free to employ it once more. That is probably a good thing, as we look to the states in the first instance to define and protect fundamental rights. 

States’ rights is inherently neither liberal nor conservative and is based on “the idea of having a check and balance and making sure that all power is not devolved in one entity. So it can be used for good and for bad reasons.”

Jim Holland

Dems Control Senate…

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