States’ Rights

States' Rights

Thomas Allen

I

    The essence of States’ rights is the dispersal and decentralization of political power. Its opposite is consolidation, which is the concentration and centralization of political power. The republican principle of not concentrating absolute political power in any one individual or body is a States’ rights principle. Because it disperses rather than concentrates political power, States’ rights are an antidemocratic principle. Democracy concentrates absolute political power in the majority.

    States’ rights do not mean the right of the States to do as they please. On the contrary, it limits the ability of the States to do as they please. 

    Whenever and wherever States’ rights are accepted as a valid principle, political subdivisions are able to judge the legality and constitutionality of acts of the government above them and are able to veto those acts judged illegal and unconstitutional. In a federation, be it a true federation or a pseudo federation, each State of that federation is able to judge the acts of the federal government and interpose and veto acts of the federal government, so far as they apply to that State when that State deems them illegal or unconstitutional. (A true federation is a confederation of several States. The United States prior to the War Between the States and Germany prior to World War I were true federations. A pseudo-federation is a State divided into several independent or quasi-independent parts. The Soviet Union, West Germany, and Brazil are pseudo federations.) Even in unitary countries, such as the United Kingdom, where regions thereof, such as Scotland, have guaranteed home rule, each of these regions has some veto over acts of the central government that the region judges illegal or unconstitutional. Even within a State, the counties have some veto over acts of the State government that the counties judge illegal or unconstitutional. Each political subdivision has the right to judge the acts of the government above it and veto acts judged illegal or unconstitutional if States’ rights are accepted as a valid principle.
 
    States’ rights do not end with political subdivisions. They include family governments and church governments. They may also be extended constitutionally to include other important segments of society, such as economic interests or racial interests. Whenever and wherever States’ rights are considered a valid principle, each of these bodies through their representatives has the right to judge the legality and constitutionality of the acts of their State and political subdivisions thereof and have the right to veto those acts judged illegal or unconstitutional so far as those acts apply to that body. To a certain degree, even individuals have the right to judge and veto laws. However, the veto of an individual may be overruled by a jury. The veto by the representatives of family governments, church governments, and perhaps some other segments of society is absolute and final. Under the principle of States’ rights, not only do political subdivisions have the right of veto, but so do the more important segments of society. 

    The following is an example of how States’ rights as just described could work in practice. Acting in their capacity as the representatives of family governments, the heads of households in each county elect members to a body that represents the family governments of that county. These bodies in turn elect members to a similar body that represents the family governments of the State. Now suppose that a county outlaws the spanking of children. If a sufficient minority, say about 10 or 20 percent, of the heads of households believes that the law usurps the authority or rights reserved for family governments and signs a petition proclaiming such and if the county board representing family governments agrees, then the law is vetoed so far as it applies to families. That is, parents or other members of the family can spank a child of that family and the law does not apply. However, if anyone else spanks the child, the law applies. If the State had enacted the antispanking law, the State board would be the body that would veto the law upon petition. If the State board fails to veto the law, then each county can judge the law. If the board of county commissioners, or preferably some other specific county board, finds the law unconstitutional and vetoes it, the law does not apply in that county. It does continue to apply in all other counties that have not vetoed it. As this example shows, the principle of States’ rights can be applied in a real situation without creating chaos.
 
    The question arises if the principle of initiative and referendum is a States’ rights doctrine. The answer is no. They are democratic principles. They are majority rule. An initiative is the positive act of enacting a law. Under an initiative, the majority imposes its will on the minority by enacting a law. A referendum is the negative act of repealing a law. Under a referendum, the majority imposes its will on the minority by repealing a law. Initiative and referendum are not States’ rights principles.
 
    There is at least one important difference between vetoing a law by the democratic principle of referendum and the republican principle of States’ rights. Under the doctrine of referendum, the law is vetoed completely; it no longer applies to anyone. Under the doctrine of States’ rights, the law is only partially vetoed. Although it no longer applies to that segment of society that has vetoed it, it continues to apply to all other segments of society. Thus, the vetoing body does not veto the law for other segments of society, which may desire the law (unless of course, they desire the law to oppress the segment of society that has vetoed the law in which case their plans have been foiled.) For example, the representatives of church governments judge a law of the State unconstitutional, i.e., the law usurps the rights, duties, or powers that belong to the church, and vetoes the law. The law would then no longer be of any force or effect with respect to any church or church official acting for and in the name of a church. However, it would continue to be enforced against all other segments of society. One of the important differences between veto by referendum and veto by States’ rights is the degree to which the law is repealed. 

    Applying a veto by States’ rights doctrine in lieu of a democratic referendum does not mean that the minority has the right to oppress the majority. On the contrary, the minority has no more right to oppress the majority than the majority has to oppress the minority. Under the States’ rights doctrine, instead of resorting to referendum and initiative to protect themselves from the minority, the majority uses the same avenues available to the minority to veto laws. That it can simultaneously protect the minority from the majority while protecting the majority from the minority makes States’ rights vastly superior to democratic doctrines, which can only protect the majority. 

  Why not use the courts to decide the constitutionality and legality of governmental acts instead of resorting to veto under the principle of States’ rights? First, courts are part of the government. Being part of the government, courts cannot always be relied upon to act in an unbiased manner. Anything that adds to the power and importance of government adds to the power and importance of the courts. Most men prefer having power and importance to not having them. Therefore, the inclination of the courts is to increase their power and importance. The result is that the power and importance of the government are increased at the expense of the other segments of society. Second, in a republic, the courts are created by the federated parts of the body politic. In a federation, they are created by the federated States. Courts are created agents. As such they should not have the final say. The creators, each acting in its independent capacity, should be the final judge. Although the courts should be the first to judge the constitutionality and legality of governmental acts, for these two reasons it should not be the last.

    States’ rights is a principle that limits political power. It decentralizes and disperses political power. It allows each part of the State to judge whether the acts of the State trespass on the rights, duties, or powers reserved by that part of the State and to veto those acts that are judged to usurp these reserved rights, duties, or powers. It protects the minority from the majority while protecting the majority from the minority. States’ rights are a principle of liberty.

    The time has come to resurrect the principle of States’ rights. The time has come for a free and independent confederation of free and independent Southern States where States’ rights are truly considered a valid principle.

II

    There are two types of States’ righters: the true States’ righter and the false States’ righter. The true States’ righter advocates States’ rights regardless of the issue. He is a strict constitutionalist and believes that the federal government has only those powers expressly delegated to it and no more. All other governmental powers have been reserved by the States. That is, the States have retained all powers that they have not delegated to the federal government and that is not denied them by the compact creating the federal government. Before the false States’ righter advocates States’ rights, he first determines the position that the State has taken vis-a-vis the federal government. If a State favors his position while the federal government opposes it, the false States’ righter advocates States’ rights. On the other hand, if the federal government favors his position while a State opposes it, the false States’ righter opposes States’ rights and advocates consolidation. The following example of gun control illustrates the difference between the true and false States’ righter. 

    Excluding those who are indifferent, people tend to take one of two positions on gun control. One group believes that the ownership of guns should be moderately to severely restricted and regulated. The other group believes that there should be little or no restrictions or regulations on gun ownership. Because extremely few true States’ righters fall in the former group, only the latter group is considered. 

    The true States’ righter believes that the Second Amendment, “the right to bear arms” amendment, applies only to the federal government. Contrary to what the consolidationists and false States’ righters claim, it does not apply to the States. For the true States’ righter, whether gun ownership is restricted or not is a State issue. Gun ownership is protected from restriction by a State with the State’s constitution and not with the federal constitution. Therefore, even though nearly all true States’ righters favor little or no restriction on gun ownership, they would not consider appealing to the federal government when a State restricts gun ownership. That is an issue to be resolved by the State. The federal government, including the federal courts, has no say in the matter. 

    The false States’ righter views the matter differently. If a State restricts gun ownership, he has no inhibitions about pursuing the matter in federal court. The false States’ righter typically argues that the Second Amendment applies to the States through the Fourteenth Amendment. Therefore, a State may not restrict gun ownership. (The true States’ righter does not recognize the Fourteenth Amendment for several reasons. Foremost, it was adopted illegally and under the force of arms. Also, it is extremely anti-States’ rights because it changes the locus of citizenship from the States to the Union.) However, if the federal government restricts ownership, the false States’ righter has no inhibitions against turning to the States and persuading them to protest this infringement upon liberty. The more radical ones may even advocate interposition and nullification. (The true States’ righter would join the false States’ righter in this endeavor not only because he opposes the restriction of gun ownership but more importantly because he opposes usurpation of power by the federal government.) For the false States’ righter, the position taken by the federal government and States determines whether he advocates States’ rights or consolidation.

    The true States’ righter consistently advocates States’ rights. He believes that all governmental powers not expressly delegated to the federal government by the States in the federal constitution belong to the States unless the federal constitution specifically denies the States such power. Even where a power has been expressly delegated to the federal government, he believes that the States have concurrent power, provided the exercise of that power is not contrary to the federal constitution or federal law. However, if a particular power has been expressly delegated to the federal government and denied to the States, he will side with the federal government.
 
    On the other hand, the position taken by the false States’ righter depends on the issue in question. If a State supports his position while the federal government opposes it, he favors States’ rights. If the federal government supports his position while the State opposes it, he opposes States’ rights. If both the States and the federal government oppose his position, he usually favors consolidation in preference to States’ rights. It is much easier to persuade one government than many.
 
     In summary, there are two types of States’ righter: the true States’ righter and the false States’ righter. The true States’ righter support States’ rights regardless of the issue in question. The false States’ righter supports States’ rights only when the State supports his view of the issue in question; otherwise, he supports consolidation. 

    (The preceding discussion can be extended to describe the principle of States' rights within a State merely by substituting “State government” for “federal government” and “family government,” “church government,” etc. for “the State.”)

Copyright © 1987 by Thomas Coley Allen.

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