Secession!

[MdR Dave]

I actually support states rights, just not the misuse of the idea.

But i feel some issues (human rights, environment, etc.) are too important to let regionalism color.

I find the balance satisfactory.

[hippifried]

Stavros, don't let hippiefried mislead you. The idea of states rights is enshrined in the 10th Amendment: 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.

"States rights" as a rallying cry of the Civil War was a morally weak but widely held argument for slavery- the Feds had yet to banish that "peculiar institution".

But I'm with hippie on where the new secessionists can go.

The Constitution talks about the rights of people, the privileges & immunities of citizens, & the powers of government. No "State's Rights" anywhere. The 10th Amendment merely sets jurisdictional boundaries on power. The idea/rallying cry isn't about rights at all, but autonomy. We originally had 13 autonomous States, in a confederacy much like the EU today. It was too unwieldily & didn't work. So we held a convention, where we tossed the Articles of Confederation in the round file, & wrote the Constitution that created a single nation with the States as jurisdictional subordinates. States are not autonomous.

[broncofan]

I understand the points made by Broncofan and MdR Dave, but if every state had to have exactly the same laws as every other state because they had been passed by Congress, would this deprive the USA of its diversity and the 'freedom to choose' of local voters who believe that the situation in say, Maine, is so different from Texas that their laws -or their application of the laws- should reflect these differences? Take the case of the death penalty which remains on the statute books of more than 30 states, even if they do not in practice execute prisoners. Would the enforcement of 'one size fits all' mark the complete imposition of Federal law on states that did not want it on that issue?

This is a great point and a lot has been written about federalism, or as I understand it the proper balance between local and national governance. Even those who believe in a strong federal government understand the ability of states to better serve their constituents' needs in some areas, and to reflect their local cultures within certain constraints.

So, even though the federal government has pre-emptive power over state laws it cannot act outside the scope of a broadly enumerated power (in practical terms a type of power). As a result those who advocate states' rights in practice are really arguing that the federal government is acting outside its enumerated power. This is in my opinion a more legitimate argument than saying something is supposed to be left to the states.

I am not exactly sure where execution fits in. I did simplify the Constitutional analysis when I said the Constitution trumps State Laws. States cannot pass laws that violate a right present in the bill of rights (or any fundamental right however defined) unless the law they pass is narrowly tailored to meet a compelling need of the state. These compelling needs would be those that enable the state to serve the health, welfare, and safety of citizens. So, while the federal government and the Constitution have supremacy over state laws, states are given authority to act on matters of compelling need in contravention of Constitutional rights but the Supreme Courts applies "strict scrutiny" to these laws.

But there are also areas that have typically been within the purview of state legislation simply because the federal government has not been empowered to act in those areas. And although these are default powers I assume they were not enumerated to the federal government by design, or because it would not serve any special purpose to have uniformity on such laws. Or perhaps it would even be better to have local rule. Unfortunately, I am much longer on theory than practice and so I cannot give good examples, but perhaps Mr.Dave can.

I say none of this as a normative matter really. I agree that there are legitimate reasons that certain matters can be legislated better at the local level. On the other hand, there are also good reasons to have constraints and review for that ability. I think your post sort of brings up the cautionary point, as does Mr. Dave's that just because something has been abused does not mean it does not have a legitimate purpose. States should be able to legislate in certain areas and have their own vision of local governance, subject to the review of the Supreme Court to ensure conformity with the law of the land. I agree with you.