I gave one of my proffesors at BYU-Idaho a copy of The Real Lincoln by Thomas DiLorenzo. I asked him what he thought and this is what he e-mailed me...
I did read the book and I thoroughly enjoyed it. I think the author brings up excellent points and strong arguments. The question of Federal vs. State rights is an interesting one. I am sometimes in a conundrum as to where exactly I stand. For example, in the 1950s and the 1960s, states in the South did not allow Blacks to ride in certain places on a bus (among a zillion other discriminatory practices); that was the state law. When Robert F. Kennedy was the attorney general, M.L. King attempted to get him to send federal troops to intervene against the state so as to prevent the discrimination. Kennedy said he could not send federal troops because it was a state issue and that they (the Blacks) should sue in court. The problem was the judges were all good-old-boys who loved the status quo and would never rule against the prevailing views. So, what does one do when state law is clearly contrary to Constitutional rights?
That argument also seems to be parallel with the Mormon problem in Missouri . Van Buren’s famous line, that the LDS cause was just, but there was nothing he (federal government) could do (because it was a state right’s issue) is consonant with the whole line of argument of the Lincoln book I read – but is that the way it should be? How do you reconcile state rights where they are clearly discriminatory and federal involvement?
I am interested in your thoughts.
I can't answer him becuase I'm not sure about it either. Any answers or links would be appreciated.
Personally, I care more about the rights of the individual than the rights of the state. But, post 14th Amendment one could argue that the Jim Crow laws were in fact a federal as well as a state issue. Van Buren left office in 1841, the 14th Amendment was ratified in 1868.
Ryan
I am an eklektarchist not an anarchist.
Educational Pamphlet Mises Group
The example given was riding on a bus. I don't know what conception you hold of human rights, but I don't consider riding on a bus an inalienable right. The proper solution, of course, is that the buses should be privately owned, not owned by the state, and the owner should decide who rides on them. Failing that, and having state owned buses, I'll agree that it is wrong to discriminate in who may ride on them on racial grounds. The state was wrong in doing so. But was it wrong enough to justify the use of military force, which the teacher suggests, in order to fix it? Does it justify eliminating the principle of federalism?
Once we eliminate federalism, and allow the feds complete control over what states do with state property, would we be surprised to see that the feds also do unfair things with the property, discriminating against, say, the political opponents of those in power?
ErikMalin:So, what does one do when state law is clearly contrary to Constitutional rights?
Hmm? The Constitution enumerates the powers of the federal government, it does not grant rights to ride on a bus. The Constitution nowhere gives the federal government the power to control bus practices in the states. So where is this Constitutional argument coming from? The Constitution is about the federal power, not the states - it was a contract among the states to form a federal government, not to specify what each state will do.
Regardless, the book is about Lincoln. Even if one were to accept that the feds should march troops into the South to let people onto buses, that won't have justified a wholescale bloody invasion, the denial of the right to secede, the suspension of habeas corpus, the jailing of state legislators, the shutting down of newspapers, the draft, or the rest of Lincoln's crimes.
ErikMalin:How do you reconcile state rights where they are clearly discriminatory and federal involvement?
The short answer is you don't. If you accept the government's existence and that it is here to stay at all levels, it becomes a balancing act. Say you take a law that requires blacks to sit at the back of the bus at the state level, and you use the federal government to override that law. You have not given blacks the right to sit where they please, you have given the federal government the power to determine where blacks, and everyone else, can sit. And perhaps, where they will sit. For blacks to have the right to sit where they please they must take that right for themselves; fight for it in other words. Earn it. Convince the red necks that they should be allowed to sit where they want in a restaurant, etc. Once you use the government, at any level, and give it the ability to force such an issue they do not take a specific power but a general power. To give to the government the power to decide abortion should be legal is also to give to the government the power to decide abortion should be illegal. Same with seating arrangements, which is why using the federal government to strike down laws restricting where blacks can sit morphs into a power to force store owners to serve blacks, whites, arabs, and likewise the power to force owners not to serve such people should that become the prevailing view, as it has with smokers as an example.
State's 'rights' is a misnomer. State and federal power is the proper way of putting it. And you give away state power to the federal level at your peril. Thomas E. Woods has some material on this subject, using state power as a check on federal power. But never assume or allow the term rights to be used if possible. Individuals have rights, the government only violates them. To a certain extent this is just the way of the world and you have to deal with it. The idea is to minimize it as much as possible, and one way which was somewhat effective at accomplishing that in the past is to set the levels of government at odds with each other, specifically here in the US the states against the feds. So when approaching the issue and viewing it in terms of power, you have to ask yourself is the general power you wish to give to the feds to over come this specific problem you're concerned with at the state level worth the federal abuse it will necessarily bring, and can that abuse be placed in some kind of tolerable check?
Is there a hard and fast rule? No, not unless you're an idealist anyway. And eventually no matter how careful you are the system will bloat and you'll likely lose control of the powers anyway. They will centralize until some factor leads to revolution, bloody or otherwise, and the powers will be localized again and the process will start over again. The best you can hope for is to live during a time where a good amount of freedom is to be had or gotten through reasonable effort. I think we're currently coming to the end of that time in the US and the feds will increasingly become more and more viscious and abusive. But that's another post.
ErikMalin:So, what does one do when state law is clearly contrary to Constitutional rights? How do you reconcile state rights where they are clearly discriminatory and federal involvement?
So, what does one do when state law is clearly contrary to Constitutional rights?
How do you reconcile state rights where they are clearly discriminatory and federal involvement?
I agree with one of the other posters, check out Thomas E. Woods, Jr. He has some very accessible and interesting arguments to make on the subject of Federalism under the US Constitution.
But, the 14th Amendment is what makes this whole area 'sticky'. Originally, the US Constitution limited and explicitly enumerated Federal power. This means that, under the original interpretation, the US Constitution did not really apply to people, but instead to the People and their agent the State. So, the States could defend their citizens from Federal power, and the Federal government only had those powers enumerated in Article 1;Section 8, and according to the 10th Amendment, the Federal government was only allowed to limit State power under the auspices of Article 1;Section 10.
The 14th Amendment, though, seemingly gives the Federal government the right to apply its Bill of Rights - the first 10 Amendments to the US Constitution - to the individual citizens of the States of the Union, despite the rule of the States and their several State Constitutions. This has created political problem after political problem, but the solution has always been increased degrees of Federal intervention. This push toward centrilization doesn't seem likely to soon abate since it is within Special Interests singular agenda to centralize control of the law for its benefit.
The questions your teacher asks are only difficult because we have abandoned Federalism. In this environment, it is increasingly difficult to come up with specific arguments against Federal authority. The only argument against Federal authority is very general in that without State Rights, we lose a check on Federal power. This general argument is easy to dismiss under any specific legal argument since it relies on the agregate of the balance of all power for its utility.
Originally, the three branches of government shared Federal power, but this is not sufficient because it is still within the Federal branches interest to increase Federal power as a whole - thereby increasing their share of political power. The check to this was State Right. Without State Rights, branches of the Federal government collude to usurp State authority. The Federal government has now enacted Amendments that allow the reversal of State authority in the face of Federal legislation, judicial rule, or executive order, but no State has the authority to limit Federal power without permission of the Federal government itself. The power of the Federal government today is truly only limited to its own discreation and not the US Constitution - a result that frightened Jefferson in his day.
Well, I've ranted enough. Your question could start a lifetime of scholarship. But basically, TheFederal government should really only be responsible for three things - The free movement of people between the States, the free movement of goods between the States, and the co-ordination of the combined defense of the States using a Navy and Air Force (I added A.F. since it is not in the Constitution but would have been if they had aircraft back then.) Also, the only three Federal crimes should be - Counterfeiting, Treason, and Piracy (terrorism). All these other Federal laws are B.S.