My Dear Fellow Conservatives and Libertarians:
We need to give up this notion of “states’ rights.” First of all, it’s in bad taste. The phrase used to be code for “Jim Crow.” And while I’m certain that’s not true for 99% of us, we can — and should — do better than to emulate vile racists. Secondly, however, “states’ rights” is a misnomer. It’s an impossible thing. It doesn’t exist, and shouldn’t.
Let me explain.
I remember reading once somewhere that:
All men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
In other words, individuals have rights, and governments are instituted with powers to protect those rights, and are (or ought to be) restricted from abusing them.
With me so far? Individuals have rights; governments have powers.
A few short years after Thomas Jefferson wrote those words, our Constitution was designed in such a way as to protect our individual rights, and not just by the legal fiat of enacting it. Our system of government was constituted to prevent, or at least slow down, the accumulation of government powers in ways that would restrict our rights.
We have three branches of the federal government, each in tension with the other two — as everyone should (but probably no longer does) learn in civics class. But there’s another level to it. The federal government also has tensions and oppositions with the governments of the several states. (Less tension and opposition than there used to be, thanks to the 17th Amendment — but that’s an open letter for another day.)
This is all well and good and as it should be. Fast, efficient government is an oppressive government.
One of the tensions that exists between Washington and the states is that Washington has the duty — the power — to “guarantee to every State in this Union a Republican Form of Government.” And when a particular state government discriminates against 20, 30, 40% of its citizens, then it’s no stretch to argue that that state no longer enjoys a republican form of government. At least not how republicanism is properly understood in this country.
If you think I’m alluding here to the Civil Rights Act of 1964, and the recent controversy raised by Rand Paul, you’re absolutely right.
We can argue all day and all night about whether Title II was necessary and proper and constitutional (I believe it was). As George Will argued on This Week last Sunday:
The simple fact is that in 1964, we, as a nation, repealed one widely-exercised right — the right of private property owners to serve on public accommodations whom they want — and replaced it with another right, that is the right of the entire American public to use public accommodations.
And as I argued on PJTV’s Trifecta earlier this week, race relations are so improved that repealing Title II would be mostly an academic matter, with little or no practical repercussions. Outright racism is simply no longer publicly acceptable, and we can thank, at least in part, Title II for that.
So, why then, my conservative and libertarian brothers and sisters, do we associate ourselves with a phrase that is historically icky and philosophically untenable? Do we do so just because it’s a convenient shorthand for the 9th and 10th Amendments? OK, there is that. But to millions, “states’ rights” is also a convenient shorthand for “Jim Crow.” We can and should do better.
States don’t have rights. Individuals do. It’s time we went about the business of restoring those rights, without alienating a huge constituency which suffered too long without them.