A stray remark in this post about the interplay between federalism and individual rights inspired me to quibble. (No, anything but that!) I expound upon that quibble here because I suspect it will be of interest to Readers.
It’s become somewhat respectable to refer to the concept of “states’ rights.” Those who make such arguments are no doubt aware of but bypass the morally questionable history of that phrase and indeed, they are not referring to slavery but rather making a very different argument. They suggest that the Federal government has in some cases overstepped its appropriate role delineated by the Constitution.
Now, in our post-New Deal world, we have three or four generations’ worth of history under our belt of a Federal government with powers reaching deeply and frequently into our individual lives. It’s easy to find examples of this exercise of power having good effects and it’s easy to find examples of bad effects too. The question of the appropriate role of the federal and state governments is not one of substance but one of procedure. Which level of government may make and enforce law “X”?
The problem with calling this dialogue one about “states’ rights” is that states do not have rights at all. People have rights. A “right,” in our philosophical framework, is the ability to act autonomously as one pleases without explanation or penalty. I have the ability on this blog to offer a criticism of President Obama. I do not owe the President an explanation of why I chose to criticize him. I do not owe the state of California where I live or any other state in which my remarks are published an explanation of why I chose to criticize him. Indeed, I do not owe you my Readers any such explanation — the only check on my exercise of my free speech right is that (at least in this venue) if I wish to persuade anyone else to my mode of thinking, I’d better be offering a worthwhile criticism with facts and logic to back it up. But you my Readers are free to agree or disagree with me as you see fit, and just like me, you owe no one any explanation of your response to whatever I might say.
Now, let’s say that shortly after publishing my post critical of the President, the FBI shows up and arrests me. They do owe me an explanation for their action. I can make them answer the question “Why did you arrest me?” What’s more, if the answer is “Because you criticized the President,” then I can compel them to free me and sue them for the damages and indignity that I suffered at their hands. If the answer is “Because you haven’t paid income tax since 1997,” my options are rather different — but then I can gather evidence to demonstrate that I have paid my taxes, or have my attorneys or family do that for me while I’m in custody. And, while I’m under arrest, I can refuse to answer questions. I do not owe the FBI an explanation for why I refuse to answer their questions.
So do states have rights? If it’s not the FBI that arrests me but instead the California Highway Patrol, whose actions are subject to question? The answer is, the CHP stands in the same shoes as does the FBI. It has the power of arrest, but I hold rights against the arbitrary exercise of that power. I don’t have to answer their questions, but they are obliged to answer mine.
The theoretical model I propose is that words like “rights” and “powers” all refer to action — somebody is doing something. But a “right” is qualitatively different than a “power” in that the “right” is something unquestionable and unpenalizable. If California has the “right” to do something, then that thing is not subject to question or penalty if Califonia does it. But everything California does should be subject to question or penalty in some form — in a democracy, the voters may examine any thing the state does that they choose and change the way the state does that thing. If the Governor orders action “X,” and the voters disapprove enough, the Governor is subject to sanction in the form of being removed from office. That’s what it means to be the sovereign, and the voters must be sovereign in a democracy. Consequently, the state can have no rights because the state is an implement of the sovereignty of the people as a whole.
So powers end where rights begin.
Call up MS Paint or some similar basic painting program and set it to black-and-white mode. Draw, freehand, a single-circled Venn diagram with a bisecting line. (I’ll defer the question of which side of the circle is larger for another day.) Use the “fill” function to color one of the two slices of the diagram black. The circle represents the entirety of actions in which the government acts. On one side are individual rights. On the other side are legitimate powers of government. From a distance, the line appears solid and straight. If we zoom in closely, we may find that the dividing line is actually pixellated unevenly because particular cases are sometimes contrary to what appears to be the big picture rule — but it is still a bright line. Either the state may legitimately do “X” or the individual possesses a right to prevent the state from doing “X.”
State powers end where individual rights begin. We can argue about where that line should be drawn another day; maybe you argue for robust state powers or maybe you argue for an empowered citizenry and everyone wants to achieve an appropriate balance even if we can’t always agree on what that balance is. But for today, I want to focus on the basic binary concept of powers versus rights. And governments — whether at the state, federal, or local levels — have no “rights” at all.