Dan Popp
States' wrongs
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By Dan Popp
March 17, 2014

Protecting the rights of even the least individual among us is basically the only excuse the government has for even existing. – Ronald Reagan

Imagine that you're swimming in the ocean. And something is wrong. You cry for help. You can see the lifeguard sitting atop his white perch. Sleeping. You spot another lifeguard standing on the beach. You try to yell louder, "HELP!" This lifeguard looks right in your direction, crosses his arms and smirks. Not good.

You can't tell it, but there's a third lifeguard on the beach. He's not on duty; he isn't even from around here. He's on vacation, in fact.

Question: Does this man have a moral duty to try to rescue you when the other two refuse or fail?

I offer this picture as a rough metaphor for federalism. I didn't say "States' rights." States don't have rights; people have rights. Governments (State, national and local) have finite grants of authority from the rights-holders.

When the national government forgets that it's supposed to protect our rights, some libertarian or quasi-conservative commentator will chirp, "Well, that's for the States to decide." Abortion. Play marriage. These issues come under the purview of State legislatures only, they say. As if Connecticut or Rhode Island may decide that lying is truth and fantasy is reality – as long as Washington stays out of it.

I don't believe that's how the Founders envisioned federalism.

The national government is one lifeguard – one guarantor of our life, liberty and property. If that lifeguard fails to do his duty, our State government must protect us, even against the national government, if necessary. We agree about that. But the reverse is also true: If your State abandons its duty to uphold your rights, it's the job of the national government to defend you against the State.

It is always required of every level of government to maintain our rights when the others fail to protect, or actively seek to destroy, our rights.

When Terri Schiavo was being murdered by the State of Florida, there was a brief attempt by some in the US Congress to halt her unlawful execution. Someone said to me that, since I was a "States' rights guy," I should be against the national government stepping in. I expect such comments from leftists. But when I hear opinion-leaders ostensibly on the right say that State-sanctioned murder and State-legitimized counterfeit marriage are no concern of the national government, I wonder whether they understand the concept of righteous force – much less federalism – at all.

And what about history?

When Utah wanted to enter the Union, the national government found a compelling interest in preventing the redefinition of marriage. No one at that time thought that the States were "laboratories for experimentation" in various forms of unholy matrimony. For about a hundred years, each State protected Civil Rights as it saw fit. Is that arrangement even defensible?

Let's remember our founding principles:
    We hold these truths to be self-evident, 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. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. – Declaration of Independence [emphases mine]
All governments exist to secure our God-given rights. So when our rights are threatened, it isn't just the State legislature, not only the Sheriff's Department, not merely the City Council that must rise up to defend them. Any government that does not guard our rights has abdicated its primary responsibility. It has resigned. It no longer exists, in truth. That includes, of course, our national government.

Hear Alexander Hamilton on the matter:
    This balance between the National and State governments ought to be dwelt on with peculiar attention, as it is of the utmost importance. It forms a double security to the people. If one encroaches on their rights they will find a powerful protection in the other. Indeed, they will both be prevented from overpassing their constitutional limits by a certain rivalship, which will ever subsist between them. (1788 speech to the New York Ratifying Convention)
I will admit that, in order for federalism to work, we must have the correct understanding of rights. Your desire for official endorsement of your depravity as "marriage" is not a right. Your desire to kill a child or an invalid who has done nothing wrong is not a right. Your covetousness for my property, even under the rhetoric of "fairness" or "compassion," is not a right.

Fake federalism in the Judge Napolitano mode means that our rights are only as strong as the most corrupt level of government allows. Real federalism means that our rights are only as weak as the best level of government allows.

The simple beauty of federalism is that we have more than one lifeguard.

© Dan Popp

 

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