States’ rights debate rages on
by Phil Burgess, Unabridged from the Rocky Mountain News, October 12, 1994
The more things change, the more they stay the same. Consider this: “Our fathers knew, when they made the government, that the laws and institutions which were well adapted to the green mountains of Vermont, were unsuited to the rice plantations of South Carolina. They knew then, (and) we know now, that the laws and institutions which would be well adapted to the beautiful prairies of Illinois would not be suited to the mining regions of California. For this reason, this Union was established on the right of each state to do as it pleased on the (major questions of public policy); and the various states were not allowed to complain of, much less interfere, with the policy of their neighbors.” Is this the testimony of a rancher, objecting to the one-size-fits-all approach of the Interior Department to the management of the public lands in the West? Is this the statement of a governor or county commissioner about a new federal mandate that will require all automobiles to undergo expensive and time-consuming inspection and maintenance regardless of local air quality conditions?
None of the above. The familiar themes in this statement were pronounced 136 years ago by Sen. Stephen A. Douglas in Alton, Ill., the site of the final round of the Lincoln-Douglas debates.
The debates between Douglas and his challenger, Abraham Lincoln — recently re-created by C-SPAN — focused on the future of slavery in the territories of a rapidly expanding United States. Douglas said it’s “a violation of the fundamental principles of this government to throw the weight of federal power into the scale, either in favor of the free or the slave states.”
Lincoln rejected Douglas’ constitutional arguments. To Lincoln, slavery was a transcendent moral issue. Listen to Lincoln in a debate at Knox College in Galesburg, III., on Oct. 7, 1858: “I confess myself as belonging to that class in the country who contemplates slavery as a moral, social and political evil.” Accordingly, Lincoln was willing to invoke federal power — in the form of congressional legislation — to turn back the effects of the Supreme Court’s decision in the Dred Scott case, which held that slavery could not be outlawed in the territories.
The recreated Lincoln-Douglas debates prompted many thoughts about contemporary issues: the role of the Supreme Court in human rights issues, such as abortion, and the relentless — some would say, reckless — expansion of federal authority at the expense of the 10th Amendment, which reserves to the states and the people powers not granted to the federal government.
States rights have been invoked for many reasons: to preserve civil liberties (by attempts to nullify the Alien and Sedition Acts in 1798); to prevent regional economic discrimination (by attempts to nullify federal tariffs that helped the industrial states but hurt the agrarian states in 1832); and to stop or slow down the expansion of civil rights in America.
Today, a larger and different movement seems to be taking shape: Let’s call it “popular sovereignty,” which uses the initiative and referendum and other methods of direct democracy to give citizens more control over their lives and their government. We may have passed the point where more power to states will satisfy the increasing demands of ordinary people to be left alone — as people increasingly turn to voluntary associations and civic (not public) institutions to solve problems and pursue larger purposes.