Thursday, February 10, 2011

States' Rights Stink!

I admit that isn't very moderate, but it is passionate. And it wasn't me who came up with it.  Here's the quote: 
Moved by Joseph Smith, That every man in the meeting who could wield a pen write an address to his mother country. Carried.
Mayor [Smith] read the Memorial to Congress. The State rights doctrines are what feed mobs. They are a dead carcass --a stink, and they shall ascend up as a stink offering in the nose of the Almighty.

When I wrote my piece on Joseph Smith and States' Rights that was published in the Salt Lake Tribune a few months back, I didn't use the strongest quotes available. Brother Joseph was understandably incensed over the persecutions of the Saints by the State power of Missouri and the failure of the United States to provide any redress. His interpretations of the Constitution were rather strongly worded:

Well may it be said that one man is not a state, nor one state the nation. . . .
Why, sir, the powers not delegated to the United States and the States belong to the people, and Congress sent to do the people's business have all power. . . .
And let me say that all men who say that Congress has no power to restore and defend the rights of her citizens have not the love of the truth abiding in them. Congress has power to protect the nation against foreign invasion and internal broil; and whenever that body passes an act to maintain right with any power, or to restore right to any portion of her citizens, it is the supreme law of the land; and should a State refuse submission, that State is guilty of insurrection or rebellion, and the President has as much power to repel it as Washington had to march against the "whisky boys at Pittsburgh," or General Jackson had to send an armed force to suppress the rebellion of South Carolina. . . .
To close, I would admonish you . . . to read in the 8th section and 1st article of the Constitution of the United States, the first, fourteenth [he meant 15th] and seventeenth [he meant 18th] "specific" and not very "limited powers" of the Federal Government. . . .
And God, who cooled the heat of a Nebuchadnezzar's furnace or shut the mouths of lions for the honor of a Daniel, will raise your mind above the narrow notion that the General Government has no power, to the sublime idea that Congress, with the President as Executor, is as almighty in its sphere as Jehovah is in his.
Excerpts from Joseph Smith letter to Senator John C. Calhoun of South Carolina, January 2, 1844 Id. The letter may also be found at: Joseph Smith, History of the Church 6: 156–60. 

There's not a lot of deference to the Tenth Amendment in that language. It is interesting that he referenced the historical precedents of the Whiskey Rebellion (which was a tax revolt) and the South Carolina Nullification Crisis (challenging the federal tariff) that did not have anything to do with the protection of religious or property rights that were violated when his people were expelled from Missouri. He clearly had a broad view of national power under the Constitution. To sum it up:
I am the greatest advocate of the Constitution of the United States there is on the earth. In my feelings I am always ready to die for the protection of the weak and oppressed in their just rights. The only fault I find with the Constitution is, it is not broad enough to cover the whole ground.
Joseph Smith in BYU, American History 100 on-line course materials from Johnson, "The Missouri Redress Petitions: A Reappraisal of Mormon Persecutions in Missouri," BYU Studies 26 (spring 1986).

What set me off on this was hearing today about a proposed bill in the Utah Legislature, HB 76, by Ken Ivory (R. West Jordan). The bill proposes a state council to review federal laws to see if they are within the "limited and enumerated" powers of the federal government. The bill actually makes a list of those powers which is essentially a copy of much of the U.S. Constitution Art. II, Sec. 8, with a few other provisions. It says the state committee is not bound by federal court decisions in its interpretations. It goes on to include an abbreviated reference to the Fourteenth Amendment that the federal government can protect certain rights of individuals but doesn't say what they are or how they are to be protected (rather "unlimited" and "vague"). And of course there is no mention of the Supremacy Clause of Art. VI. I find this most troubling.  I would think it best to read the U.S. Constitution itself rather than a list of "approved" federal powers prepared by a Utah State Representative. 

This brings me to a trick question I play on Boy Scouts or BLM Realty Specialists when I teach about the Constitution. "Does England have a Constitution?" The answer is "yes" but the trick is that  it's not written down in one document. It includes the common law and the important principles of government powers and individual rights that have been developed and referenced by British Courts for a thousand years. The point is that our inspired Founders included the common law in our system of government. It's even referenced in the Seventh Amendment. So our jurisprudence, or rule of law, includes the U.S. Constitution, the statutes (and treaties, etc.) enacted thereunder, and the common law of Great Britain (at least up to 1776 and ours in the State and Federal Courts since). The common law is developed by relying on case precedent decided by judges.  It has gone on for centuries, and is nothing extraordinary, that judges interpret and yes, sometimes establish precedent in interpreting Constitutional, statutory, and common law. There are important common law rights and interpretations that are not written in our Constitution. Two glaring ones come to mind: The Right of Travel (or Freedom of Movement - perhaps implied in the Commerce Clause), and the Right of Privacy (also hinted at in the Fourth Amendment). We are not a civil code nation limited by written rights and law dictated by a Napoleonic figure (well, maybe in Louisiana a little bit).

And I don't believe that there is only one way to interpret the Constitution correctly. You may find that some like Rep. Ivory can "proof-text" the Federalist Papers like some do the Bible to argue whatever interpretation they prefer.  The Federalist Papers, the purpose of which was to convince the state legislatures to ratify the Constitution, are no more easy to understand and interpret than some of the vague language of the Constitution itself. That language was sometimes left deliberately vague because our inspired Founders could not agree or had to compromise to come up with language that would work the best way possible. And I just don't think it is possible to ignore the totality of the Constitutional history of the United States (including the Civil War), and how the courts have interpreted it, and how We the People have actually put it in practice for all these years. Yes, it does adapt and change as We the People  struggle for that More Perfect Union. You don't have to agree with me. I just want you to think about it and understand that you don't have to agree with anyone, especially the dogmatic ones.  The US Constitution is big enough to give us the processes we need to work it out.

I understand and have some sympathy for the theory that local government is the best government, except for the fact that it doesn't seem really to work that well in practice. As was said, I don't remember by whom but somebody during the progressive era, "It's easier to buy up a state legislature than the whole U.S. Congress." And the idea of "States' Rights" is mostly attractive only in theory.  When you look at 220-some years of actual history under our Constitution, "states' rights" have usually been invoked to defend things like slavery, Jim Crow, and segregation. And this is what bothers me the most.  When you hear "states' rights" being trumpeted, it's advisable to look around to see if there might just be someone's individual or group rights being trampled. In Utah we could hope we are past all that. But then there is Representative Sandstrom's (R. Orem) Bill imitating Arizona law to authorize local law enforcement to question and detain reasonably suspected illegal immigrants. Of course it's reasonably easy to determine who they are because the illegals obviously appear and speak differently than legal immigrants or US citizens. Like with the Hispanic population for instance, the illegals are clearly distinguishable, just like those illegal Canadians and Swedes among the Caucasian population. Sorry for the sarcasm, but I hope you can see that this law with its fig leaf of "illegal" attached to "immigrant" is nothing more than arbitrary and arrogant state power to harass a disfavored ethnic minority.

And that stinks.

June 29, 2012
For some good news on Sandstrom's change of heart, click here.

1 comment:

  1. Great post. I find it so hard to understand how Idaho, and now Utah, both states which have huge LDS populations are traveling down the dead-end roads of nullification an states rights. It goes to show the lack of understanding of history within the legislative bodies of those states.

    On the "illegal alien" legislation, it smacks of bigotry and blame. People often try to find some sector of the population they can blame society's problems on. The more easily identifiable the group the easier it is to vilify them.

    The Fascists of Germany chose the Jews because they were easily identifiable, and could be segregated from the general population both in word and deed; and so history begins to repeat itself with so-called "Americans" blaming the "illegal alien", aka "those people" from Mexico.


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