The notion of “states’ rights,” as popular as it is among modern American conservatives, is deeply un-American. The Tenth Amendment is helpful as historical backdrop here; it says, “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.”
The federal government is obviously a government of enumerated powers – so much so that its powers (at least as to the law-making branch, Congress) are laid out in numbered paragraphs. (And the legal rule about how to interpret lists is expressed in Latin: expressio unius est exclusion alterius. This is fancy speak for, “If it ain’t on the list, it ain’t on the list.” Put another way, the list is exclusive, and whatever was left off the list is deemed to have been left off on purpose.)
The Tenth Amendment says that any power not enumerated (listed) on the list of federal (national governmental) powers belongs elsewhere (which seems obvious enough). But where? The Amendment says that this left-over power belongs either to the states or to the people. Conservatives – especially social conservatives – are prone to leaving that last part (the part about the people) out. Conservatives would have us thinking that states possess all the power not given to the federal government. But the Tenth Amendment contemplates three spheres of power, not two: there is a realm where neither the federal nor state-level governments may tread.
Why are social conservatives seemingly allergic to the third sphere of power reflected in the Tenth Amendment? Because they seek power for states, and they are opponents of both of the other spheres – both the power of the federal government and the power of the people.
As to the federal government, it reflects the views and policy choices of a broad and diverse polity. As a government that reaches into our lives from afar, it plays into conservatives’ fear of The Other – the imagined intrusion of foreign, alien, enemy values into the veins of a community that bleeds flags, Old-Testament Bible verses, tradition, and simplicity. The federal government is too far away, and its constituents too varied, for it to adequately reflect tribal preferences and mores.
As to people power, John Locke (whose writings were a weighty influence among our founders), had this to say:
To understand political power aright, and derive it from its original, we must consider what [state] all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons as they think fit, within the bounds of the law of Nature, without asking leave or depending upon the will of any other man.
A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another, there being nothing more evident than that creatures of the same species and rank, promiscuously born to all the same advantages of Nature, and the use of the same faculties, should also be equal one amongst another, without subordination or subjection, unless the lord and master of them all should, by any manifest declaration of his will, set one above another, and confer on him, by an evident and clear appointment, an undoubted right to dominion and sovereignty.
Locke believed that government should only possess that power ceded to it by the people, and that people only ceded the power “necessary to the ends for which [people] unite,” namely, “the preservation of their lives, liberties, and estates …” In a word, government exists to protect, not to oppress.
To a conservative, this view of the power of the people – a sphere of life where no government has jurisdiction because no jurisdiction has, of necessity, been ceded to the government by the people – will not do. Because conservatives, although they pass themselves off as proponents of “small government,” are not proponents of small government at all. They are, rather, proponents of limited power for the federal government (the government of The Other) but expansive power for state-level governments, which they can use to enforce the mores and values of the tribe against all within the tribe’s jurisdiction – including non-compliant carpet baggers from strange, foreign lands (like New York, for example).
John Locke, whom I will quote frequently in this Enlightenment series, saw the people themselves as sovereign in all areas of life that did not require a collective enterprise. For those who seek to shove their mythological dogmas and repressive lifestyles on all around them, this is dangerous thinking.
We CONCUR with John Locke: there is a sphere of authority where states lack any jurisdiction.
by Brendan Beery