Fair Weather States Rights

Related Post Roulette

97 Responses

  1. Avatar Morat20 says:

    Sitting here in Texas, I happened to be watching the news with my very conservative father-in-law. It had a quote from a sheriff, talking about Texas’ proposed decriminalization of pot (possession of personal use amounts to be shifted to a two hundred dollar fine, at most — rather than 5000 and jail time at most).

    The Sheriff says “If you look at the history of decriminalization, you find it seems to always lead to legalization”.

    My 65+ father-in-law, hardcore law and order voter, snorts and say “So?”Report

      • Avatar Morat20 in reply to Burt Likko says:

        Yeah. It’s the retiring boomers like him that make me think pot legalization isn’t that far off, nation wide.

        Mind you, I don’t think that will make a shift towards legalizing other drugs and I’m not sure it should. I think every drug should be assessed on it’s own merits, although I think treatment for users is more effective than prison. Costs and end results, both.Report

      • @morat20

        Mind you, I don’t think that will make a shift towards legalizing other drugs and I’m not sure it should. I think every drug should be assessed on it’s own merits, although I think treatment for users is more effective than prison. Costs and end results, both.

        I suppose if I carried my inclinations and arguments to their logical conclusion(s), I’d advocate full-on legalization of all drugs. But I just can’t go there right now. So I’m pretty much where you are on the issue.Report

      • Avatar James K in reply to Burt Likko says:

        @morat20

        Bear in mind that intensity of preference matters too. A world with a non-overwhelming majority of people who are mildly in favour of legalisation and a sizeable minority who are vehemently opposed is not a world that is likely to get legalisation any time soon.Report

    • Avatar Brandon Berg in reply to Morat20 says:

      Decriminalization makes me a bit nervous, in that decriminalization of possession for personal use could increase demand while keeping supply in the hands of criminals, leading to more drug-related crime. I don’t know whether this has turned out to be the case empirically though, or whether it may play out differently for harder drugs than for marijuana (which is well-suited to small-sale producers and home cultivation, and was already a pretty low priority for law enforcement).

      But if it’s the path of least resistance and a short transition on the road to legalization, I guess it’s probably worth the risk.Report

      • +1 to this concern. Decriminalization in some ways seems to me to retain all of the disadvantages of the drug war while gaining none of the benefits of legalization.Report

      • Avatar Morat20 in reply to Brandon Berg says:

        Gotta live in the world you’ve got.

        In this one, in Texas — pot possession is anything from a small fine to several thousand dollars + jail.

        So decriminalization here is talking about reducing it to a 200 dollar fine for anything below a certain amount. No jail, no community service, no 5k fine. Nothing on your record, either. Flat misdemeanor.

        And I’ll take that over “nothing” because the status quo is worse. People are going to jail for possession (and to be blunt, I wouldn’t. But I’m a middle class white guy. I’d get a small fine and maybe community service. Less if I bothered to hire a lawyer. I don’t…fit..the demographic of those who end up with 5k fines or jail times).

        So yeah, I’d prefer pot legalization tooReport

      • Avatar Kimmi in reply to Brandon Berg says:

        morat20,
        middle class white guys get some pretty big time punishments up here. Boy do they whine about it though! “I’m A Doctor…!”Report

  2. Avatar Tod Kelly says:

    As I’ve long maintained, “states-rights” is neither a cherished value, a founding principle, nor a desired outcome. It’s a tactic, like a filibuster or dividing and conquering.Report

    • Avatar Stillwater in reply to Tod Kelly says:

      The origin of the term “states rights” goes back to the civil war.

      {{That’s all I have to say about that.}}Report

    • Avatar Will Truman in reply to Tod Kelly says:

      Tod, do you make any distinction between “states rights” and federalism? The former is a these-days loaded phrase, due to the history Stillwater refers to. The latter, though, is actually a thing (and in political science terms, an important thing).Report

      • Avatar Tod Kelly in reply to Will Truman says:

        @will-truman I’m talking about the political arena, not the legal or academic.

        I’m saying that today, in 2014, when someone claims that they are for or against a political position because of their principles and values of states rights/federalism, it is almost always used as a tactic. I’d say I could find 100 for every 1, but the truth is I doubt you can actually find me any one single politician and pundit who uses the mantel of federalism as the reason he supports something his party is for that doesn’t make federalism magically disappear the moment it interferes with something his party is against. It’s like being against subsidies in that regard.Report

      • Avatar Mike Schilling in reply to Will Truman says:

        Federalism is a thing, and the number of people who treasure it enough to, say, oppose DOMA even though same-sex marriage bothers them might be as many as six.Report

      • I’d view “federalism” somewhat like “freedom” in this context. It’s a concept that matters, and matters politically and for policy, though applicability is often a matter of convenience. Politicians are like that.

        Ideologically, though, there are definite biases in between greater and lesser centralized authority, between right and left, even if they aren’t consistent about it.

        I disagree with the plaintiffs in this particular case. But a big part of the argument is trying to hash out how federalism deals with negative externalities – or at least the perception thereof – towards other states. Gun control is another example, where the roles are somewhat reversed.Report

      • It is indeed shocking that politicians can be inconsistent,and that politics can lead to inconsistencies.

        Federalism is indeed rarely an ideology in practice (like freedom, again). I’d still say it’s more than a tactic. Rather it’s an argument. Sometimes people argue for it, sometimes they argue that it should be overridden because of (reasons).

        I tend to favor federalism, but there are exceptions where I think it’s unworkable or there is a greater issue at play. Does that mean that my arguing that something should be a state issue is disingenuous? That it should be regarded as a tactic, rather than an argument or a general belief of leaving things to the states where we can?Report

      • Avatar Brandon Berg in reply to Will Truman says:

        I’d say I could find 100 for every 1, but the truth is I doubt you can actually find me any one single politician and pundit who uses the mantel of federalism as the reason he supports something his party is for that doesn’t make federalism magically disappear the moment it interferes with something his party is against.

        Rehnquist and Thomas dissented in Raich on federalist grounds, hewing to the archaic theory that activity which is neither interstate nor commerce cannot be considered interstate commerce.Report

      • Avatar Brandon Berg in reply to Will Truman says:

        Not sure if judges count, though.Report

      • Avatar LeeEsq in reply to Will Truman says:

        I can theoretically see federalism being used to describe somebody that strictly believes that the federal government should stick to the role given it by the Constitution, which nobody ever agreed on though, and leave everything else to the states. In practice, both federalism is used to mean the same thing as states rights without the baggage.Report

      • Avatar Jaybird in reply to Will Truman says:

        Ideally, Federalism is merely running with the idea that there’s more than one way to do anything and just because something is the right way to do something in Maine, that doesn’t mean that it’s the best way to do it in Texas or Oregon.

        Cynically, it’s running with the idea that it’s as likely for an official consensus to get things wrong as it is to get things right and allowing each jurisdiction to differ minimizes the harm from getting it wrong. (Back to ideally: after states see that they’re doing things sub-optimally, they’ll change policy to something similar to how the states that got it right are doing it.)

        In practice, you end up with some of that above but also a huge amount of injustice that other states can’t really influence without a super-duper majority.Report

      • Avatar ScarletNumbers in reply to Will Truman says:

        @brandon-berg

        Gotta give Thomas his due.

        Also, Day O’Connor also dissented.Report

      • Avatar Brandon Berg in reply to Will Truman says:

        @scarletnumbers You’re right. I was thinking it was one of the lefties who dissented, which wouldn’t have been for federalist reasons, or against their party’s policy preferences. I actually don’t know much about O’Connor, except a vague impression that her rulings put her in the center-right of the court.Report

      • Avatar Dave in reply to Will Truman says:

        @leeesq

        I can theoretically see federalism being used to describe somebody that strictly believes that the federal government should stick to the role given it by the Constitution, which nobody ever agreed on though, and leave everything else to the states. In practice, both federalism is used to mean the same thing as states rights without the baggage.

        To your first point, yes, but I think there’s enough historical evidence to determine that the intent was to limit the powers of the federal government and leave most of them to the states, even if the boundaries weren’t completely clear. The more nationalist position that Hamilton took and John Marshall would ultimately take in cases like McCullough v Maryland was exactly what the anti-Federalists feared and it took assurances from the Federalists that this wouldn’t happen to get key votes to ratify.

        States rights and federalism should not be used interchangeably. Federalism is the way to describe the allocation of powers between the federal government and states.

        The debate over states rights was a debate over the nature of sovereignty under the U.S. Constitution (i.e. the people of each sovereign and independent state or the people of the United States), one that was so contested that a war was necessary to resolve it. It appeared in the ratification debates, the protests over the Alien and Sedition Acts and a number of other times between the late 18th Century and the Civil War, most notably the Nullification Crisis.Report

    • Avatar Saul Degraw in reply to Tod Kelly says:

      @tod-kelly

      I generally agree with you.

      @will-truman

      We have been debating the scope, reach, and powers of the Federal Government since the ratification of the Constitution if not before. Interestingly the Federal Party originally thought that the Federal Government should have broad powers. It was the Jeffersonian Democratic-Republicans who thought that the Federal Government should be limited in powers. What stayed the same is that the people who liked broad national government power generally lived in cities and were tradespeople/professionals. Jefferson had a very rural-utopia ideal.Report

      • Avatar James Hanley in reply to Saul Degraw says:

        Those city folk/tradespeople also wanted to use the federal government to seek rents from the rural folk.Report

      • Lost me on the rents part, Prof. Can you expand on that, please?Report

      • Avatar James Hanley in reply to Saul Degraw says:

        Tariffs for one, taxes for another (the cause of the whiskey rebellion). The Constitution Convention itself may only have come about because of Shay’s rebellion–I’d probably not call that rent-seeking, but it reflected the same urban-rural dynamic.Report

      • Avatar Dave in reply to Saul Degraw says:

        Jefferson had a very rural-utopia ideal.

        Yet it was the Jeffersonian view of federal power that the people embraced when he won the 1800 Presidential election. I should also note that his belief of a Constitution as a compact** was the predominant political understanding of the Constitution for the next 30 years or so, the Marshall Court notwithstanding. Ironically, northern states would invoke Jefferson’s ideal (state sovereignty) to protest his sponsoring the Trade Embargo Act.

        ** – I’m not suggesting that Jefferson ever embraced the purely interstate compact theory of the Constitution, but rather am referring to his description of the Constitution in the Kentucky Resolution (even though others would eventually interpret it that way – wrongly in my view (i.e. John Calhoun).Report

      • Avatar Saul Degraw in reply to Saul Degraw says:

        @dave

        The United States was primarily agricultural and rural until the late 1800s or early 1900s. Prohibition 1.0 was in many ways one of the last ways that small-town and Protestant America tried to assert itself against an increasingly urban and increasingly non-Anglo Saxon country like our ancestors.

        Jefferson also violated his ideal and used executive power to purchase the Louisiana from cash-strapped France.

        So there was a time when the 1800 electorate did go for Jefferson’s ideal but I am not sure why 2014 America should be bound by an election that happened over 200 years ago. I have never found the Frozen Constitution argument to be that strong.Report

      • Avatar Dave in reply to Saul Degraw says:

        @saul-degraw

        The United States was primarily agricultural and rural until the late 1800s or early 1900s. Prohibition 1.0 was in many ways one of the last ways that small-town and Protestant America tried to assert itself against an increasingly urban and increasingly non-Anglo Saxon country like our ancestors.

        I’m not sure why this is completely relevant, but I agree with you. I’d also argue that John Calhoun’s doctrine of nullification and his theory of concurrent majorities was one of the most significant ways (albeit fatally flawed) to protect that rural ideal against northern manufacturing interests that successfully lobbied for the Tariff Act of 1828.

        Jefferson also violated his ideal and used executive power to purchase the Louisiana from cash-strapped France.

        I’m sure Madison wasn’t a saint as well.

        So there was a time when the 1800 electorate did go for Jefferson’s ideal but I am not sure why 2014 America should be bound by an election that happened over 200 years ago. I have never found the Frozen Constitution argument to be that strong.

        The historical case for a Constitution limiting the powers of a federal government is strong (see the ratification debates) even if the normative argument for interpreting the Constitution in that way is weak, very weak actually (I’ve never made that claim). On the flip side, the modern view of the Constitution as a democracy reinforcing document (a la John Hart Ely) has a few strong normative arguments to it, but it has almost no basis in founding era history. Obviously, I disagree with the “general welfare” types, Jack Balkin and people that try to reconcile John Marshall’s McCullough decision to the founding era. Not gonna happen.

        If by frozen you mean bound by the intentions of others, I would agree. However, if “unfrozen” means that someone can make an argument that the Commerce Clause gives the federal government the power to require people to enter into a market for a given product based on reasons that lack any limiting principle whatsoever, count me out. I’ll never buy off on that kind of absurdity.

        I’m all for entertaining non-originalist arguments so long as they have limiting principles.Report

  3. Avatar Jaybird says:

    To be perfectly honest, while I laud the goal of ending prohibition yet again, I’m not sure that I’m crazy about the whole thing of the Federal Government saying “nobody likes this law but we don’t have the political will to change it but we *DO* have the political will to not enforce it… so that’s what we’re going to (not) do.”

    As pleasant as I find the ends, I find the means odious.Report

    • Avatar Jaybird in reply to Jaybird says:

      Then again, it’s not like the law was truly being enforced before this. It was only enforced on certain sides of the tracks… I have stories from cop buddies about how they busted kids (from the right side of the tracks, naturally) where they caught them with a bag and, I was told, the cop emptied the bag into the wind, handed the baggie back to the guy and told him “don’t litter”.

      I don’t know which is worse: keeping the injustice of today going longer or the yet-undiscovered injustices that rely on even more regularized selective enforcement tomorrow.Report

    • Avatar Patrick in reply to Jaybird says:

      You would.Report

    • Avatar LeeEsq in reply to Jaybird says:

      Me thinks you are underestimating how many people support the war on drugs. Prohibition had a decent plurality of support until the very end even though most Americans began to oppose it. Drugs like marijuana still seem exotic and dangerous too many Americans in a way that alcohol never when the Prohibition movement was at its most popular. Ending the war on drugs is harder than repealing Prohibition because of how drugs are perceived by many Americans.Report

      • Avatar Jaybird in reply to LeeEsq says:

        Prohibition had a decent plurality of support because people thought that they would only go after “those” people. They didn’t. Mayors got busted. Captains of industry got busted. People who just wanted a damn beer got busted.

        Prohibition 2: Electric Boogaloo works so well because, primarily, it attacks “those” people. Once Prohibition 2 started kicking in for Privileged People, we started seeing “Medicinal” laws. Seeing as how the feds were still kicking in the doors of “Medicinal” shoppes, we started seeing “Legalization”.

        The reason we still have the war on drugs is because it wasn’t enforced except only against “those” people.Report

      • Avatar Saul Degraw in reply to LeeEsq says:

        @jaybird

        There interesting thing about Prohibition 1.0 was that the most zealous enforcers were people who realized that the law was nuts and that you would need vast amounts of money and resources to do so.

        The true believers sincerely expected the American public to give up drinking merely because it was illegal. Wayne Wheeler successfully argued for lowering enforcement funding during the mid-1920s. He didn’t realize that many of the rich-elite Republicans had no desire to enforce prohibition either and were all too willing to ignore it.

        There were elements of “those people” in prohibition 1.0 though. “Those people” were urban and usually immigrants. Prohibition was small-town Protestant America trying to maintain their supremacy and authority.Report

      • Avatar LeeEsq in reply to LeeEsq says:

        @saul-degraw is right. Prohibition 1.0 ended up as disaster sooner than latter because it was chronically under-funded from the get go. @jaybird, on previous threads who mentioned that you were incredulous that Americans enacted Prohibition 2.0 within the living memory of the failure of Prohibition 1.0 as if we didn’t learn the lessons. I’d argue that people did learn the lessons of Prohibition 1.0, if you want to ban something than you need to fund the enforcement of the law. They learned the lessons of Prohibition, its just that they were different than the ones you would have liked.Report

      • Avatar Stillwater in reply to LeeEsq says:

        I’d argue that people did learn the lessons of Prohibition 1.0, if you want to ban something than you need to fund the enforcement of the law.

        This is an odd lesson to take away from the experiment of Prohibition since it assumes that there actually is a level of funding sufficient to enforce it. Is there any evidence, anywhere, in all of human history, to support that assumption? If there is, I’m not aware of it (which means absolutely nothing in this debate!). But the logic of enforcing a ban on a desired good or service necessarily entails that enforcement won’t keep pace with violations. In most cases, anyway.Report

      • Avatar Saul Degraw in reply to LeeEsq says:

        @stillwater

        It might be an odd lesson to learn but it was the lesson learned. I also agree that there is no amount of funding that could turn prohibition into a success.

        It is also worth pointing out that prohibitions against narcotics are not products of the 1960s but existed for decades before the 1960s. Bans or regulation of marijuana started before the Wilson administration and were strengthened during the Hoover administration. The final nail in the coffin happened in 1937 with the Marijuana Tax Act. Cocaine was illegal around 1914 in the U.S. and 1916 in the U.K.

        I suspect the real reason that the Drug War started in earnest in the 1960s was because that was when drugs went from being part of sub-cultures and the demimondes to being largely used by middle-class and white American youth. The Drug War was a failed attempt at turning young, white Americans away from the counter-culture.Report

      • Avatar LeeEsq in reply to LeeEsq says:

        Saul has the history right. The basic infrastructure of the drug war predates Prohinition. After Prohibition ended, a lot of the enforcement was shifted to drug enforcement. It was moral panic over hippies and cities that really made it big.Report

      • Avatar Stillwater in reply to LeeEsq says:

        I don’t mean this to sound insulting, but can either of you guys explain why what you just said up there is relevant to the point I made? I’m really not seeing it. I mean, no one is disputing that there is a history of drug-related legislation and enforcement in this country. ANd presumably lots of people would object to the characterization that the current incarnation of the war on drugs has anything whatsoever to do with hippies, or that it started in the 60s.

        Eg, from Wiki (since I wanted to ground this discussion in some facts and all):

        According to Human Rights Watch, the War on Drugs caused soaring arrest rates which deliberately disproportionately targeted African Americans.[49]

        The present state of incarceration in the U.S. as a result of the war on drugs arrived in several stages. By 1971, different stops on drugs had been implemented for more than 50 years (for e.g. since 1914, 1937 etc.) with only a very small increase of inmates per 100,000 citizens. During the first 9 years after Nixon coined the expression “War on Drugs”, statistics showed only a minor increase in the total number of imprisoned.

        After 1980, the situation began to change. In the 1980s, while the number of arrests for all crimes had risen by 28%, the number of arrests for drug offenses rose 126%.

        More to the point, tho, I just don’t see how appealing to history or hippy-fear accounts for the claim Lee made upthread: that the lesson learned is to sufficiently fund enforcement of drug bans. I mean, I’ve never heard anyone actually mention that as “the lesson learned”. If anything, it’s used an excuse for why drugs persists in light of a ban, but certainly not as an actual lesson learned, no?

        Maybe I’m confused as to what you guys mean here.Report

      • Avatar Saul Degraw in reply to LeeEsq says:

        @stillwater

        It has everything to do with what you said.

        I agree that there is probably not a level of enforcement that is going to support any form of narcotic prohibition but I am also trying to understand the kind of person who is going to be opposed to narcotics legalization no matter what. We are not in this camp but I suspect the reform crowd has a large range of opinions from legalizing all narcotics, legalizing and regulating all narcotics, legalizing marijuana and other soft drugs but getting wishy on stuff like cocaine/crack, heroin, LSD, and meth, to just decriminalization and lowering sentences, etc. There is still probably a plurality that supports complete illegalization and they are more unified in their end goals.

        I think that a lot of people on the reform or legalization side think that drug prohibition is relatively recent as a phenomenon when it wasn’t. If someone is deadset against legalizing narcotics, the lesson they are going to take from Prohibition 1.0 is one of funding and numbers, not one that prohibition is impossible. The desired end goal is what causes people to learn particular lessons. People who are more open or morally okay about recreational narcotic use are more likely to take a lesson of prohibition being impossible. People who are not are going to learn that we just need to put more resources into the issue.

        It is not like Europe has legalized narcotics in many places either. The difference is that Europe just treats narcotics as another crime issue instead of as a moral crusade. The U.S. is between Europe and some Asian countries were drug trafficking comes with harsher prison terms and a death penalty charge if a person is caught with a certain amount. I’d still rather be caught with drugs in the U.S. over almost many Asian countries. I lived in a boarding house in Japan with a guy whose buddies sent him marijuana from Australia via the mail. He got caught. He was lucky that all he lost was his job and got kicked out of the house but he could have been looking at a long time in a Japanese prison if he they decided to press charges.

        The reform side or prohibition doesn’t work side is not very good at presenting their argument to the people because they are so firmly believing in the self-evident nature of their opinions but in a democracy you can’t assume anything is self-evident, you need to convince the people that you are right.Report

      • Avatar Stillwater in reply to LeeEsq says:

        Maybe Saul. It seems to me your comment is an account of how a bunch of people who aren’t here on this blog think about things and even more than that, defending how they think about things. But none of those people are here in this blog. Personally, I don’t really give a rats ass how “other people” think about things – there’s just too many of em!Report

      • Avatar Kimmi in reply to LeeEsq says:

        Saul,
        It’s hilarious when you say that the Mennonites had authority.
        Truth? who knows, but it still makes me laugh.Report

  4. Avatar Brandon Berg says:

    And federal supremacists oppose this. Because marijuana is different.Report

  5. Avatar Mike Schilling says:

    From the linked article:

    The two states are arguing that federal law outlawing marijuana doesn’t just make the use and sale of marijuana federal crimes. Rather, they’re arguing that Congress intended to force state legislatures to criminalize marijuana, and to use their states’ police power to punish marijuana users.

    Two points. First, this is the only argument they could make. Colorado and Washington haven’t legalized marijuana, because it’s still illegal at the federal level. They have merely removed the overlapping state laws against it.

    Second, it’s batshit crazy.Report

    • Avatar James Hanley in reply to Mike Schilling says:

      It is batshit crazy. The police power is a sovereign political authority of each U.S. state, not subject to direct federal authority, but only to the constraints of the U.S. Constitution. The federal government could bribe the states into compliance, as they have with speed limits, drinking age laws, NCLB, and other policies, but they can’t directly order states to enforce a particular criminal law, to the best of my knowledge.Report

  6. Avatar Road Scholar says:

    I grew up in a town in Kansas about ten miles from the Nebraska border. Back in the day there was a brisk cross-border trade due to differences in the liquor laws. At the time (it’s since been changed) Kansas had no open bars for serving liquor, you had to be a member of a private club, but you could buy bottles at a liquor store at 21, and this is crucial, drink watered down beer, not to exceed 3.2% alcohol in bars at 18. Nebraska, on the other hand, was open bars and buy anything at 19.

    So… Nebraska kids between the ages of 18 and 19 would make the drive down south on Saturday night while Kansas kids would head north once they hit 19. Notice how the disparity in the laws had the unintended consequence of putting a hell of a lot of drunk young adults on the highway in the wee hours of the weekends. I’m sure it resulted in a few deaths. And I’m sure similar results were occurring wrt to Missouri, Oklahoma, and Colorado.

    States have rights I guess so this kind of thing happens.Report

    • Avatar Brandon Berg in reply to Road Scholar says:

      I’ve lived in cities bordering Mexico and Canada, whose drinking ages are 18 and 19, respectively. Nations have rights, I guess, so that kind of thing happened.Report

      • Avatar Road Scholar in reply to Brandon Berg says:

        I’m not making the argument you apparently think I’m making. My point (to the extent that I have one) would be that disparities across state lines create all manner of situations like the one I described and this isn’t really any different in any important way. So, in my considered opinion, the complainers can go pound sand.Report

      • Avatar Brandon Berg in reply to Brandon Berg says:

        Ah, sorry for the misunderstanding. I hadn’t read page 2 of the linked article, so I didn’t notice the parallel and thought you were just saying “Federalism kills.”Report

    • States do not have “rights.” They have “powers.” People have “rights.”Report

      • Avatar LeeEsq in reply to Burt Likko says:

        If only more people would understand this, we could solve a whole bunch of problems. There will be a lot of debate on what powers the Federal government has and what powers the states have but at least we could avoid the foolishness about states rights. When people say that states have rights, what they really mean is that they don’t agree with the decisions made by the Federal government in certain areas and want to ignore them.

        The actual arguments advanced against Colorado aren’t really that dumb. They only seem dumb because they are being advanced by people who invoked states rights against Obama care. The Constitution and Federal law are supposed to triumph over state law though. How much of discrepancy could there be between the Federal government and state governments when it comes to the legality of narcotics is a legitimate question.Report

      • Avatar Brandon Berg in reply to Burt Likko says:

        It’s not clear to me that this is more than a semantic disagreement. Suppose we define a “right” as “something your government doesn’t get to decide for you,” or more broadly, “something you get to decide for yourself.” If we consider the federal government to be the states’ governments’ government, then it makes sense to say that states have rights.

        “States’ rights” also makes sense if by “state” we mean the state as a whole (including the people), rather than the state government specifically.

        And if a state has powers, does it not have the right to exercise those powers?

        When people say that states have rights, what they really mean is that they don’t agree with the decisions made by the Federal government in certain areas and want to ignore them.

        I don’t know what other people really mean, but I believe the term “states’ rights” usually pops up when there’s a tenable case that the federal government has overstepped its constitutional bounds—in other words, that it has violated the “states’ rights” by interfering in a decision constitutionally delegated to the states.Report

      • Avatar Will Truman in reply to Burt Likko says:

        It’s worth pointing out – if I didn’t earlier – that “state’s rights” is not something that supporters of federalism and state autonomy usually say. I see it more often as it being something that critics call it (presumably to rope it into the southern insurrection and Jim Crow).Report

      • States do not have “rights.” They have “powers.” People have “rights.”

        I probably agree with Brandon that it’s mostly a semantic issue. If someone pleads for “states’ rights” (assuming they actually do, given Will’s suggestion they don’t usually do so), their arguments, for what they’re worth, would be the same if they replaced the word “rights” with the word “powers” or “autonomy.”

        Or mostly the same. The choice of words is probably important at a subconscious level. “Rights” connotes something more inviolable, or at least something more fixed than “powers” or “autonomy” does. So the language is important, and it’s necessary to remember that states don’t have rights and to point that out. I’m just saying the act of pointing that out does not by itself invalidate the point in question.Report

      • Avatar LWA in reply to Burt Likko says:

        Ah, but if a state incorporates as a corporation, then it becomes a person with rights!

        To misquote Mark Twain- There is something fascinating about law. One gets such wholesale returns of absurdity out of such a trifling investment of reason.Report

      • Avatar Mike Schilling in reply to Burt Likko says:

        The actual arguments advanced against Colorado aren’t really that dumb.

        Yeah, they are. There’s no obligation for a state to duplicate and enforce a federal law.Report

      • Avatar Mike Schilling in reply to Burt Likko says:

        If someone brings up states’ rights, he means he’s goodam sick of the feds protecting Those People (for some value of Those, but usually the traditional one.) It’s honestly never meant anything else.Report

      • What about Personal Liberty Laws?Report

      • I should admit that I don’t know whether the supporters of such laws invoked states’ rights, and even if they did, you say the Fugitive Slave Laws protected “those people” with “those people” being the slave owners.Report

      • “even if they did, you say the Fugitive Slave Laws….”

        Err….there should be a “could” between “you” and “say.”Report

      • There’s no obligation for a state to duplicate and enforce a federal law.

        Aren’t things a bit more nuanced than that? There’s the whole preemption doctrine, which generally says that once there’s a federal law in place, state laws on the same subject are preempted except in cases where Congress allows it (eg, Congress allows states to adopt tougher air pollution standards than the federal ones, but doesn’t allow them to adopt less stringent standards). There are certainly examples where the federal law explicitly allows state authorities to enforce federal laws (eg, consumer protections). I’m not sure, but think that there are examples where states are required to enforce federal laws (eg, if a state declines to create its own plan to meet some requirement of the Clean Air Act, the federal EPA creates a plan for them and the state is then required to enforce that).

        It seems to me that some of the preemption doctrine is being finessed in the case of marijuana by the current administration’s decision to enforce the federal law selectively. And only some of the laws: the DEA may be under instructions not to harass drug dealers that conform to the law in states that have passed laws that conflict with parts of the Controlled Substances Act; banks have for the most part refused to provide those dealers with services because there’s been no guarantee that the banking laws on handling money from the sale of those drugs will receive similarly constrained enforcement. The last would seem to be particularly tricky in the case of interstate banks. Can Nebraska prosecute a bank headquartered there for Colorado operations that violate a federal law that Nebraska is authorized to enforce?Report

      • Avatar Mike Schilling in reply to Burt Likko says:

        I don’t know how pre-emption applies to drug laws. Certainly there are state laws against marijuana possession and sale here in California, enforced (or not) by the state. And it’s conventional wisdom that if you’re arrested for a more serious drug offense (e.g. cocaine), you want to be tried for the state offense, not the federal one.

        I agree that the whole thing is being confused by the Obama administration’s stance of not enforcing the federal marijuana laws completely. Which could of course be changed by the next one, so you’d have to be an idiot to do anything like open a pot store and leave yourself over to civil forfeiture as soon as the wind shifts.Report

      • Avatar James Hanley in reply to Burt Likko says:

        Michael and Michael,

        States can’t enforce laws that pre-empt valid federal laws. But that doesn’t actually mean they can’t enact them and keep them on the books, so long as they’re not otherwise constitutionally prohibited. I.e., many states have minimum-wage laws below the federal minimum wage. The state law has no effect at present, but will become effective in the case that the federal minimum wage is abolished or sufficiently reduced.

        Nor do states generally have a duty to enforce federal laws. Colorado and Washington’s laws do not actually attempt to pre-empt federal law. They aren’t trying to block federal enforcement of the law.

        If the neighboring states have a case, it is against the federal government for not enforcing its laws, not against the legalizing states.Report

      • @james-hanley

        What about court-ordered busing? If a state, or subdivision thereof, is ordered by a federal judge to bus students, then that state is in some sense “required” to enact the enabling legislation, or exercise existing legislation to that effect.

        I do see a difference, especially if the judge can order and implement the busing on his or her own. I’m not sure exactly how that works, to be honest.

        Even if I am right, I do admit that’s probably an exceptional circumstance.Report

      • Avatar Burt Likko in reply to Burt Likko says:

        While to a degree @brandon-berg is right that this is something of a semantic quibble, @gabriel-conroy has grasped a big part of my point:

        The choice of words is probably important at a subconscious level. “Rights” connotes something more inviolable, or at least something more fixed than “powers” or “autonomy” does.

        Where @gabriel-conroy uses “subconscious” I would say “emotional.” If I have a “right” to do something it implies a degree of validation and legitimacy in what I do. You might not agree with how I use my right to free speech, for instance, in that you might disagree with what I say. But you do not question, and may even consciously affirm, that I have a right to say it. Further, there is a presumption that a right may be exercised; the burden is on he who would restrict the exercise of that right to explain why the right must be circumscribed and under what circumstances. Nor do I need to justify my exercise of my right to anyone. I wish to speak: that is justification enough.

        Compare to the exercise of a governmental power, for instance, a search of a private citizen’s house. We agree that in some circumstances (e.g., after a warrant is issued upon a demonstration of probable cause) the search can be done. But the presumption is against the exercise of power: government must stay its hand and it bears the burden of demonstrating why it ought to act at all. When it does act, it lacks the same sort of patina of legitimacy that accompanies a citizen exercising her rights — rather, it must act out of necessity: if the government did not act this way, a worse result would occur. And what the law empowers the government to do is subject to a variety of external controls and checks, including but not limited to judicial review and the political process, in a way that individual acts are not.

        Perhaps there is a level upon which this is a semantic difference and the line I am drawing draws upon the irrational to a significant degree. But even if it is irrational, it is still important to bear in mind. The connotation of the “exercise of a right” compared to the “exercise of a power” makes a difference, particularly to those who dislike but are asked to nevertheless accept what is being done.Report

      • Avatar Michael Drew in reply to Burt Likko says:

        This is a great point by @burt-likko, and I’d add in that, even beyond semantics, conceptually there is an important difference between states rights and federalism. I’m cribbing from Prof. Hanley’s explanation in comments a few months back, but federalism as I understand it is about how powers are divided between central and subsidiary governments. I might be wrong, but it seems like that could involve various dynamics and rules governing how a polity gets to a given arrangement regarding issues of federalism and whether and why the arrangement may stay that way or change. So that it would be possible for powers to be devolved to subsidiary levels of government largely by discretion of the central government, and even subject to its discretion on an ongoing basis, meaning that very little in the way of rights would adhere in the subsidaries’ exercise of delegated powers. The fact that powers were in practice left to subsidiaries would still imply federalism of at least a sort.

        Contrariwise, under federalism it would also be possible to arrange the delegation of powers in such a way that subsidiaries acquire an acknowledged, legitimate expectation that they’ll retain the prerogative to exercise a set of powers. I.e., something like a right. So in the abstract, the ‘states rights’ cry is not just a cry in favor a federalism, but a cry relating to a particular political basis for establishing and maintaining a particular federalist order, claiming legal or moral basis for its legitimacy based in legitimate expectations of deference to subsidiary units of government on a set of questions.

        All of which is entirely prior to and apart from the contingent fact of the historical freight the phrase carries in U.S. politics.Report

      • Avatar Dave in reply to Burt Likko says:

        @michael-drew

        This is a great point by@Burt Likko and I’d add in that, even beyond semantics, conceptually there is an important difference between states rights and federalism.

        The reason I agree with Burt’s statement as it applies to today is because the states rights debate of the 19th Century, whether or not each state remained a completely sovereign entity under the Constitution and thereby had a sovereign right to enter or exit at will, was resolved.Report

      • Avatar Citizen in reply to Burt Likko says:

        In simple terms, do states have the right to exist or the power to exist?Report

      • Avatar Tod Kelly in reply to Burt Likko says:

        Both?

        I’m pretty sure we could wipe Rhode Island off the map in about an hour, even if we didn’t like the way the State is run. I don’t think it’s their power that keeps us in check, so much as we collectively agree Rhode Island has a right to exist.Report

      • Avatar Saul Degraw in reply to Burt Likko says:

        @tod-kelly

        What did Rhode Island ever do to you? Besides not being a Rhode or an Island that is….Report

      • Avatar Burt Likko in reply to Burt Likko says:

        @saul-degraw have you ever had to drive there?

        [Shudders at the memory]

        I’ve never been so close to death in my life.Report

      • @burt-likko That’s because you’re spoiled driving in California. Seriously, my standard for areas outside where I live and am used to the drivers is “how often do the drivers do things that surprise me completely?” Californians are the best-behaved drivers I’ve encountered — quite possibly because the place is so congested that everyone has to behave well.

        When I first moved to New Jersey, my aunt who lives there gave me a copy of New Jersey Magazine with an article “How to be a New Jersey driver”. You know that things are not going to go well when one of the first tips is “Never have a damaged front bumper replaced. Because tailgating is a way of life, and a rumpled bumper that says, ‘I’m not afraid to hit things’ is a much more effective message.'”Report

      • Avatar Saul Degraw in reply to Burt Likko says:

        @burt-likko

        The only way to travel to Newport for the Summer is by Pullman car, silly…Report

      • Avatar Dave in reply to Burt Likko says:

        @citizen

        In simple terms, do states have the right to exist or the power to exist?

        Based on our constitutional system, states have the right to exist only insofar as people collectively decide to form the political society becomes the ultimate sovereign over that state. They then allocate certain powers to states and keep everything else for themselves. States have no powers allocated to them by the people, whether that’s We the People of Ohio or We the People of the United States.

        Again, I should stress that the states rights had nothing to do with rights vs. powers but rather a debate over sovereignty and the nature of the federal union. Then again, I find the antebellum era and the states rights debate to be among the most fascinating in American history. I suppose I can thank the Tenthers for that, although I don’t consider myself one.Report

    • Avatar Saul Degraw in reply to Road Scholar says:

      @road-scholar

      It is worth pointing out that allowing states to set their own alcohol laws was key to getting prohibition repealed.Report

      • Avatar Saul Degraw in reply to Saul Degraw says:

        Yup. There were probably enough states that wanted Prohibition 1.0 to make repeal efforts unsuccessful even during the Great Depression. The way F.D.R. and the Wets got Prohibition repealed is by letting states set their own rules on alcohol. This is why some states still have government monopolies on the sale of alcohol. When I lived in New York, it was illegal for supermarkets (and maybe other retail establishments) to sell alcohol before noon on Sunday. I don’t think NY Supermarkets are allowed to sell anything but beer.

        On the other hand, California is largely liberal with their alcohol laws. The one new rule is that you can’t purchase alcohol from self-checkout. You are allowed to buy anything under the sun from supermarkets though.Report

      • Avatar Brandon Berg in reply to Saul Degraw says:

        Saul’s probably alluding to the fact that the 21st amendment explicitly delegates to states the authority to ban the importation of alcohol, and that this was, IIRC, important as a compromise for getting it ratified.

        I may just be imagining that last part as a false memory triggered by Saul’s comment, but I think that’s correct.Report

      • Avatar Mike Schilling in reply to Saul Degraw says:

        The one new rule is that you can’t purchase alcohol from self-checkout.

        And that’s there to enforce the age limit.Report

      • And that’s there to enforce the age limit.

        On both sides of the transaction. Groceries here can sell products with alcohol content below 3.2%. But when you go through check-out, the cashier who is under age 21 has to call over a 21+ person to ring up those items.Report

      • That’s true in Chicago, too, at least when it comes to underage checkers. In Chicago, however, the alcohol content doesn’t seem to matter. Most major grocery stores sell all kinds.

        That was one thing that surprised me when I moved here from Denver. Another, related thing is that in Chicago grocery stores, it’s not uncommon for people to offer free samples of wine (and, I suppose, beer, although I don’t recall seeing anyone offer free samples of beer).Report

      • Avatar Burt Likko in reply to Saul Degraw says:

        Free samples of beer? My local BevMo comes close — a beer tasting costs a few dollars, which often as not turns out to be exactly the amount of the coupon for the beers being sampled.Report

      • For some reason, wine strikes me as something more amenable to being free sampled in grocery stores than beer does. Again, I don’t think I’ve ever seen beer offered. If I did, I might take one or two. (Wine not so much. Not a big wine drinker.)Report

  7. Avatar Brandon Berg says:

    Just noticed the OTC blurb. Again, you’re misrepresenting the position of those who disagree with you. Besides Christian Scientists, nobody hates health care. Even Robin Hanson only hates most health care. It’s disingenuous to equate opposition to a federal system of taxes, subsidies, and mandates with “hating health care.”

    It’s also worth noting that the argument they’re pushing here is essentially the same argument accepted in Raich by Breyer, Ginsburg, Kennedy, Souter, Stevens, and Scalia, from whom I kind of expected better. And, for that matter, Wickard v Filburn, of which I might venture to guess you’re a fan.Report

  8. Avatar Jaybird says:

    There are still some foul-weather federalists out there, apparently:

    http://reason.com/blog/2015/01/05/republican-legislators-object-to-oklahom

    Last Wednesday seven state legislators in Oklahoma, all Republicans, echoed that concern in a letter to Attorney General Scott Pruitt. “Oklahoma has been a pioneer and a leader in standing up to federal usurpations of power on everything from gun control to Obamacare and beyond,” they write. “We believe this lawsuit against our sister state has the potential, if it were to be successful at the Supreme Court, to undermine all of those efforts to protect our own state’s right to govern itself under the Tenth Amendment to the U.S. Constitution.”

    Good for them. I think.Report

    • Avatar Stillwater in reply to Jaybird says:

      The letter gives the impression that the AG acted +/- unilaterally in filing the lawsuit, and didn’t consult the state legislature before acting. Not that he’d necessarily have to acourse… The writers indicate in the letter that if the case is heard by the court (because the suit isn’t dropped b the AGs, I guess) they’d write a brief in support of Colorado’s right to legalize pot. Which is very interesting, indeed.Report

    • Avatar Mike Schilling in reply to Jaybird says:

      Also, who ate all the cookies?Report