What does Ron Paul have to say about states rights?

[rekced]

I'm talking about actual states... What are their rights?

I know critics of Ron Paul say that because he doesn't believe in the incorporation doctrine, he is for allowing discrimination.

Paul supporters say he opposes the 14th amendment because of the Incorporation Doctrine. He opposes the Incorporation Doctrine because it denies states the individual rights expressed to them in the 10th amendment. They say we were not supposed to be protected from our respective State governments by the federal government; the people and the States were supposed to be protected from the federal government. Paul supporter: "For many years the Fourteenth Amendment has been used by the Court as a tool to dictate what the states can and cannot do in matters of education, religion, abortion, gender, and a whole host of other areas completely unrelated to the original purposes of that provision. The states are supposed to be sovereign to withstand the pressure of the supreme court. "

The progressives I talk to say that states have no rights. They say it is implied nowhere. I have read them saying on more than occasion that the Bill Of Rights is here to protect individuals from state tyranny. I then ask them why is it even necessary for states to have borders? If we give the one-size-fits-all key to the Federal Government, what are our local state government and state constitutions good for?

I don't really understand...

[Wendi]

You hit the nail on the head. If we give all the power to the feds there is no point in having states. Obviously the founding fathers thought we needed states, with separate powers. The constitution expressly states that powers not granted to the federal government are reserved to the people and the states. I don't have a copy handy as I'm at work & no time to search but someone should be able to find the exact phrase for you :)

[rekced]

Thanks for the response.

Can someone more knowledgeable than me help me develop a response for people who question Ron Paul on this? I am pretty much clueless. I would like to ask Ron Paul directly, but I assume he's too busy... ;)

[Tugboat1988]

I can't speak for Ron Paul, but I have a short opinion on this, and a longer opinion that I won't get into here unless you want it.

I suspect that governments don't actually have rights. Humans have rights, governments exercise rightful powers which have positive grant, and often exercise improper powers that do not enjoy positive grants. To determine what those powers are, you need to go to the respective Constitutions.

But, I suppose it's just easier to say a State has rights. But, isn't that just a little misleading?

Tugboat

[thisisgiparti]

Ron Paul said (in the face of much ridicule) that the Civil War was about States' rights and not slavery. Some people took this to mean that Ron Paul LIKES slavery, which is assinine or Democratic Party thinking.

The Constitution has a catch-all that says, if it is not specifically the federal government's business, it is left for the states to decide. An example of this would be abortion.

Does the government have the right to decide when life begins? No. What about imposing a punishment like making abortion a capital offense? Again no.

Btw, do you live in OH? I know a Tugboat there.

[Tugboat1988]

Btw, do you live in OH? I know a Tugboat there.


Nope, State of Washington.

[SuMuKong]

I'm talking about actual states... What are their rights?

I know critics of Ron Paul say that because he doesn't believe in the incorporation doctrine, he is for allowing discrimination.

Paul supporters say he opposes the 14th amendment because of the Incorporation Doctrine. He opposes the Incorporation Doctrine because it denies states the individual rights expressed to them in the 10th amendment. They say we were not supposed to be protected from our respective State governments by the federal government; the people and the States were supposed to be protected from the federal government. Paul supporter: "For many years the Fourteenth Amendment has been used by the Court as a tool to dictate what the states can and cannot do in matters of education, religion, abortion, gender, and a whole host of other areas completely unrelated to the original purposes of that provision. The states are supposed to be sovereign to withstand the pressure of the supreme court. "

The progressives I talk to say that states have no rights. They say it is implied nowhere. I have read them saying on more than occasion that the Bill Of Rights is here to protect individuals from state tyranny. I then ask them why is it even necessary for states to have borders? If we give the one-size-fits-all key to the Federal Government, what are our local state government and state constitutions good for?

I don't really understand...

I think that it would be useful to break the issue down into several discrete parts. If I am reviewing material that is elementary to you, I am not trying to be condescending; I found this issue quite confusing when I was studying Constitutional Law in Law School! And although I am not sure whether I will vote for Ron Paul, I am really glad to see people inquiring and thinking about things like the incorporation doctrine, etc.

"I know critics of Ron Paul say that because he doesn't believe in the incorporation doctrine, he is for allowing discrimination."

The issue of incorporation is not directly related to the issue of Fourteenth Amendment prohibition on discrimination, per se. This is because the 14th Amendment is not just one sentence that prohibits discrimination: it has several clauses, and each clause arguably stands independent of the other. When people talk about Incorporation, they are talking about the Due Process Clause of the 14th Amendment; when people talk about prohibition on discrimination, they refer to the Equal Protection Clause of the Fourteenth Amendment.. These are two very different things.

Why do I say this? Well, first, it is useful to have some background into what "incorporation" means. As you know, the Bill of Rights contains many Amendments, several of which we take for granted as bedrock protections against all Governmental Actors, whether the Actor is the Federal or State Government. For example, it would be inconceivable to you or me (I hope!) that we could not say what we wanted in front of the Townhall (First Amendment, protecting Freedom of Speech), that the State or Federal Government could knock down our doors without Warrant / Probable Cause and search our homes; etc.

But this is not what the Bill of Rights actually said, from a strictly textual perspective. If you read the text of the Bill of Rights (excluding the 14th Amendment), you won't find a single statement saying that the Bill of Rights applies to the States. So, although we can safely assume that the Bill of Rights (excluding the 14th Amendment) applies to the Federal Government, it does not necessarily apply to the State government. So, if you wanted, say, First Amendment protections to apply to States (e.g. Wyoming, Michigan, New Hampshire, etc.) you had a problem.

However, over time, judges on the United States Supreme Court gradually found ways to "incorporate" these Bill of Right protections so that they applied to States as well, by channelling it through the Due Process Clause of the Fourteenth Amendment. How does this work? Well, if you look at the text of the Fourteenth Amendment, the Fourteenth Amendment does explicitly apply to the States (e.g. "[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . .).

But this judicially-created "incorporation" through the 14th Amendment has nothing to do with the "discrimination" portion of the 14th Amendment ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . .")

In other words, you could support the 14th Amendment, support its anti-discrimination clause (i.e. the Equal Protection Clause), and support the Due Process Clause, but not support the use of the Due Process Clause to force States to comply with the Bill of Rights (except for the 14th Amendment).

This would be a very strict view of the Constitution, and it certainly isn't the only view (or even a popular view among judges); indeed, it's even stricter than Justice Black's interpretation of the incorporation doctrine, and Justice Black was a great exponent of federalism and State's rights.

"He opposes the Incorporation Doctrine because it denies states the individual rights expressed to them in the 10th amendment."

I am not that familiar with RP's campaign, so I do not know if he actually advocated this, at least in the way that you framed it. But yes, this proposition is true, as a matter of strict construction. If you force the States to submit to the Bill of Rights, then you are denying the States to, say, conduct trials without juries and so forth, and this would render the 10th Amendment (which reserves all unenumerated powers to the States) null and void. But even that may not be as alarming as it may sound: even if some State like California wants to guarantee jury trials in criminal trials, they could go ahead and do it by enacting this protection in the California State Constitution.

"They say we were not supposed to be protected from our respective State governments by the federal government; the people and the States were supposed to be protected from the federal government. Paul supporter: "For many years the Fourteenth Amendment has been used by the Court as a tool to dictate what the states can and cannot do in matters of education, religion, abortion, gender, and a whole host of other areas completely unrelated to the original purposes of that provision. The states are supposed to be sovereign to withstand the pressure of the supreme court."

Well, I think that this is partially true and partially false. I think that it is not entirely accurate to invoke federalism concerns to attack the 14th Amendment, because even from a strict Constitutional perspective, the States ceded some control to the Federal Government by enacting the 14th Amendment. The question is: how much? And this is where I think that you are right that the 14th Amendment has been abused. For example, where does the Constitution protect, say, a "right" to abortion? Blackmun's opinion in Roe v. Wade famously relied on some vague notion of a "pennumbra," which was supposedly derived from the Bill of Rights as a whole. Personally, I am pro-choice, but even I can see that this is a problem. If you can create a right to abortion out of thin air, you can create some other "rights" out of thin-air, too. And when you create rights, the one thing to always keep in mind is that you may also take rights away from other people at the same time.

"The progressives I talk to say that states have no rights. They say it is implied nowhere.

This strikes me as nonsensical. Of course States have rights. These rights are [i]defined (although not explicitly stated) in the 10th Amendment. As the 10th Amendment says, "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." This is the reasoning behind all sorts of Constitutional doctrines, such as the anti-commandeering doctrine in Printz and abstention.

Now it's true that liberal justices on the Supreme Court continuously expand the "enumerated powers" of the Federal Government. This has the effect of indirectly reducing State rights (e.g. there is not much left "reserved" for the States). For a great exposition on why this is a bad idea, take a look at the dissent in Raich.

Next time someone seriously proposes that States have no rights, I would ask the following questions:

1. Does the Federal Government have the right to commandeer state police officers to do its bidding?
2. Can the Federal Government directly force States to comply with certain federal regulations, say, disposing of hazardous waste in a certain way?
3. Can the Federal Government pass a law that makes it a crime to possess a gun in a school zone?

All of these questions present serious Constitutional issues, and the Supreme Court has found each of the above actions to be unconstitutional at some point because these powers were not delegated to the Federal government by the Constitution. Of course, each State could take the actions above, with no problems whatsoever.

"I have read them saying on more than occasion that the Bill Of Rights is here to protect individuals from state tyranny. I then ask them why is it even necessary for states to have borders? If we give the one-size-fits-all key to the Federal Government, what are our local state government and state constitutions good for?"

I have two thoughts on this.

First, I think that you are touching on a particularly important strand of legal philosophy in your argument about State Constitutions and Local Governments. There is a school of thought that States are basically laboratories for policies, and that we should allow States to do what they want so that we can produce the best results. This view was first articulated by Justice Brandeis in New State Ice Co. v. Leibmann, and has since been a cornerstone in Federalist philosophy. And I think that if you tell people this, it makes a lot of sense. Let's say that you think that society will fall apart if you allow gays to marry. Well, let's wait for California to enact gay marriage and see what happens! Or suppose that you think that medical marijuana is a great innovation and will help many terminally-ill patients. OK, let's test out that theory. If Michigan allows them to do that, and it turns out to be a good innovation, then hey, it may be worth considering. (OTOH, if all college students turn into idle pot-heads--probably not such a great policy).

And this is closely linked to the Libertarian affinity for free-markets. By giving States greater rights, you're effectively creating a free market for policy ideas.

Second, The 14th Amendment was passed to protect individuals from State tyranny. Some people think that the rest of the Bill of Rights were passed to protect individuals from state tyranny, too. The theory behind this that the Federal Constitution provides a fundamental baseline, and State Constitutions provide additional protections. For example, the Federal Constitution says that you have a Due Process Right to an abortion before the third-trimester; the State Constitution might provide that you have an absolute right to abortion, any time.

But what people often fail to realize, or consciously ignore, is that whenever you seize rights from thin air and read them into the Federal Constitution, you take away from a State's right to consider the issue. This sounds great if you're talking about something that I think we all hold dear--for example, the right to protection against unreasonable searches and seizures. But when you read, say, abortion rights into the Federal Constitution, then you are imposing your will on the States.

In my opinion, federalism is the most honest answer. It concedes that, hey, you know, sometimes you won't get what you want on a national scale. If you oppose incorporation, then you oppose applying the 4th Amendment to all of the States. But federalism protects your right to amend your State Constitution to include a 4th Amendment provision (or the equivalent of whatever Bill of Rights provision you want). And this turns out to be way easier than amending the Federal Constitution!

So in this sense, you are absolutely correct. Federalism (and Ron Paul's position) is about protecting the 2nd-order right to decide your own rights, rather than imposing rights (or negative rights, for that matter) on everyone else.

[Tugboat1988]

Good effort SuMuKong

I won't debate the difference between powers and Rights concerning States or any other government organization. I don't think it would get anywhere because, as it boils down, it can be seen in either or both ways.

But there is one thing I will bring out that should amend some of the thing you write. I wouldn't mean that it damages anything you say. The difference, though is not only harder to find as time passes but does show the connection between the State/federal government a tad stronger.

Start with one of the few direct hot links that I could find without going deeper into the various State web pages. It's about the Enabling Acts Congress passed to provide for admission of new States. It seems to me they represents contractual agreements. Here's one for the State of Arizona, others when you can pull them out, are similar:

http://www.azleg.state.az.us/const/enabling.pdf

I took my grandson to Olympia a few years ago to attend a State Supreme Court hearing. While there, we went to the basement in the State house and to the library there. We each left with a Legislative Manual. It has the Declaration of Independence, the Constitution of the United States, the Enabling Act of Congress providing for the admission of the Dakotas, Montana and Washington into the Union of States on an equal footing with the original States.

Here is a couple of things these documents set down as requirements for the State as provisions that needed to be met as conditions of membership.

They were required to adopt the Constitution of the United States, whereupon they were authorized to form State Constitutions and State Governments for said proposed States.

The constitutions they formed 'shall be' republican in form.

Their constitutions shall not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence.

And the last Section reads: "That all acts or parts of acts in conflict with the provisions of this act, whether passed by the legislatures of said Territories or by Congress, are hereby repealed.

So, we find that the Bill of Rights was required as an adoption before the delegates could form their own constitutions and state governments. So, in terms of the Bill of Rights, the question was settled before the State was formed. And, as the Constitution is a contract between the States, and the various State memberships have a direct tie, as in all contracts the enterpretation becomes consistant between all the parties.

Well, I know that most attorneys, and politicians, like to think that it takes court processes to interpret these documents But that opens up misconstrution and abuse of government powers especially when it comes to regulating and controlling the liberty of the members of a population. And, besides, doesn't a more generous view carry an intent to prolong the debate?

Anyway, I'm not trying to pick away at your effort. But I do think this does adjust it.

Tugboat

[SuMuKong]

Tugboat:

You bring up a good point about social contract theory, a la Rawls, and in a broader sense the more important (and deeper point) -- regardless of how we interpret the Constitution -- is what kind of rights States cede by signing the "contract" of being in the United States.

However, the reason that incorporation provides such a lively debate in legal circles is that we don't know how much power the States were supposed to cede to the Federal Government on the Bill of Rights. If incorporation happened before the States entered into their soverign contract, there would be absolutely no debate about incorporation at all. But incorporation did not happen until the 1900s -- and even then, it did not happen all at once. Incorporation was not complete until the mid-1900s, and legal scholars still disagree on the extent to which the Bill of Rights are incorporated.

So even if the State agreed to accede to the Bill of Rights, one might argue -- textually -- that they did not agree to incorporation, which did not exist at the time that most States were admitted (except for, say, Hawaii). Even if Rawls is right (which I think that he is), and States enter into a social contract with the federal sovereign, incorporation is a complex issue because you're essentially changing the terms of the contract after it was accepted by both parties.

The counterargument, of course, is that there was ample legislative history in the drafting of the Fourteenth Amendment to support the view that the Fourteenth Amendment was intended to incorporate the entire Bill of Rights apply to the States, regardless of what the text of the Bill of Rights actually says.

Personally, I believe that the legislative history surrounding the enactment of the Fourteenth Amendment makes a pretty compelling case for incorporation. But as you note, once judges start interpreting things loosely -- and the classic example of loose interpretion is the use of legislative history -- they often slip into the habit of creating law out of thin-air.

[Tugboat1988]

SuMuKong

I see you have already noticed how this discussion already touches on most interesting thoughts. Well, I have and I give you the credit from the beginning starting with you first post. I’m not an old participant in this forum, but I am an old advocate of the Constitution as it is intended, as it was interpreted from the beginning, and how it was understood by those who ratified it. I guess that makes me old fashioned. But then, I earned when I turned 68 last November. That never makes me right by its own merits, but it does point out that discussion is important. Let me say that I appreciate you obvious interest and energy about the subject. With that I proceed.

You began you last post with these words: “You bring up a good point about social contract theory, a la Rawls, and in a broader sense the more important (and deeper point) – regardless of how we interpret the Constitution – is what kind of rights States cede by signing the “contract” of being in the United States.”

Your comment here turns out to be a highly interesting thought. Frankly we could debate the idea to the turn of this present century but I’m not sure it would do anything but form several ideologies from it. But, that’s part of the fun when you enter into discussions, isn’t it.

Frankly, the contracts I mentioned, the Enabling Acts, does a surprising thing. Recall the last Section (25) I mentioned from the Act relating to the admission of Washington into the Union of States. It says that all Acts or parts of Acts in conflict with this Act – are hereby repealed. When you read the Act, and put it next to the Constitution, the Act seems to repeal a great part of the Act itself. And, one must understand that these things must be compared to it, under contract processes, as the rule or order. The reason it appears to do that is because many of its provisions conflict with the Constitution. I won’t get into it here, but you can start by viewing the matter of land title holding of public lands. You begin by determining what the Constitution grants to the central government in terms of authority to hold title. But that departs from my thoughts here.

You mentioned Rawls social contract theory, and direct comment toward a broader sense of the contracts. OK, I’ll go along with that suggestion, but it would bring in more than Rawls. For example, a modern thought is entertained by George Mercier. He presented a massive commentary on “Invisible Contracts” one could discover at this link: http://www.constitution.org/mercier/incon.htm . It’s lengthy but it is a very interesting commentary especially when you get to “Doing Business With the King”.

Well, see, everyone who has a voice carries with that voice, an opinion. Here, I’ll connect back what turns out to be one of my opinions. That is, consider the thought that you can tell who the king, in Mercier’s writing, is by finding who claims title to land. If we look at it, especially in lands of the west, we find that federal government holds title to a great deal of that land. Is that the king? History indicates that it might be. But we left out one important part of the test required to know for sure. What does the Constitution say about it? The document grants ten miles square and certain other lands for specific purposes. If we go on from there, we can debate the conflicts that seem to appear from the facts we see on signs throughout the west. But that’s just a thought.

Contracts…. I already told you that I’m rather old fashioned. I tend to look at things through a narrow lens and color them firmly into central concepts. In terms of our discussion, I give place for the common practice of judging contract provisions based upon how they were understood by those who formed them. That is especially true when I consider the Bill of Rights. I do that dogmatically when modern thought seems to depart from that view. And here, we see a great departure.

Consider what one writer (John DeWitt) offered to the Citizens of Massachusetts when the Constitution was proposed to them. He wrote “All contracts are to be construed according to the meaning of the parties at the time of making them.” Nothing has changed to this day in contracts.

But, did they believe that a constitution is a contract? DeWitt wrote “There is no difference in the constitution of government.” He went on to say “That government, originally consented to, which is in practice, what it purports to be in theory, is a government of choice; on the contrary, that which is essentially different in practice, from its appearance in theory, however it may be in letter a government of choice, it never can be so in spirit.”

It’s amazing how insightful the founding writers were, and how great they understood the nature of mankind and his tendency to manipulate agreements. But, without belaboring further what I say here, I’ll go directly to the Bill of Rights.

Following the concept of referring to the founders of agreements for a sense of their beliefs I go to the Resolution of the First Congress that submitted twelve proposed amendments to the Constitution here at: http://www.yale.edu/lawweb/avalon/const/resolu02.htm

The Resolution tells you the purpose of the Bill of Rights and that’s what the Citizens believed. It was for that purpose that they gave authority to their State to ratify ten of the proposed articles. The purposes does not change in time; that is, to render the Constitution itself acceptable. The purposes are continued in the agreements of Union and do not change. And to change them, it would require a process provided by the Constitution itself. Here I will quote one more thing DeWitt wrote about the Bill of Rights. “That the want of a Bill of Rights to accompany this proposed System, is a solid objection to it.”

If a lack of a Bill of Rights was a solid objection to the Constitution in those days, it remains so to this day. I might add that even a change in the Spirit of the document or how it operates would also be a solid objection to the Constitution as well.

The Resolution reads in part “The conventions of a number of States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added…”

So, we get to the document itself. You need only read the first few words to understand what it does. “Congress shall make no law respecting…” There, you see, it begins by declaring restrictive clauses. The restrictions operate upon government.

Many people want to read into the Bill of Rights comments that ‘give’ them some right. The founds commented on that thought saying it was not necessary to render a Bill of Rights that ‘gave’ individuals rights. Frankly, they stood true to that comment with what they offered. They presented a document that worked upon government as denials of powers. They extended that same thing in the fabric of Union as well.

I’ll close with another quote from one of my favorite period writers John DeWitt. “The people, although fully sensible that they reserved every tittle of power they did not expressly grant away, yet afraid that the words made use of, to express those rights so granted might convey more than they originally intended, they chose at the same moment to express in different language those rights which the agreement did not include, and which they never designed to part with, endeavoring thereby to prevent any cause for future altercation and the intrusion into society of that doctrine of tacit implication which has been the favorite theme of every tyrant from the origin of all governments to the present day.”

You see, DeWitt didn’t say that it was the government who intended something, it was the people who intended. They understood that Union was necessary, but they required that Union be subject to their agreements of what the Bill of Rights accomplished.

Tugboat