Get arid of "states' rights" terminology and replace with what it is proxy for.

[Calvin Johnson]

                The first desperate purpose of the Constitution was to give this new national government the power to raise revenue, on its own without recourse to the unreliable states, to restore the federal credit so it could borrow from the Dutch in the next inevitable war.    But the Framers went way beyond the minimum fiscal needs, to eviscerate the states, end state supremacy and the confederate form of government, and replace it with a national government paramount over the states.  Able to nationalize their militias among other things.  The Framers took out the "expressly delegated" limitation, in the face of the cries of the Anti-Fedralists.    I don't see how you can read the grand design of the Constitution as limiting the federal government in favor of the states under those circumstances.      So if you want to define states rights as limitations of the federal government in favor of the states - a definition I don't have any trouble with - there aint much there.  

                The reason we should abandon States Rights as a terminology, however, except in this narrow not very meaningful case,  is that it sets the thinking wrong, so as to give Wyoming citizens too much power, impose too high txes on Virginia carriages, and allow abuses of state minorities, when we would tolerate none of that without the misleading positive ring to States' rights that arises from the false analogy to individual rights.    

        We would understand the world better if we replaced the term "states rights" with whatever it is a proxy for.   If it is for the rights of Southern Slaveholders to whip slaves , let us say so.  If it is to get Jim Crow legislation let us say so.  If it is to give Wyoming citizens 66 times more power in Senate than California citizens, let us say so.  If it is to impose tax rates on Virgnia carriages that is 10 times higher than new York carriages or rates in mississippi that are twice the rates of Connecticut rates, let us say so.   We under stand the proxy arguments a lot better than the rhetorical "states' rights" that cover the terribe arguments and make them way too plausible. 

       Any one who uses the term "states rights" of course much prefers the rhetorical punch of the term to the proxy argument it disguises.  For very good reason.  And that is why I want to get rid of it.   

              States simply are not rights bearing entities.    

 

Calvin H. Johnson 
Andrews & Kurth Centennial Professor of Law 
The University of  Texas  School of Law 
727 E. Dean Keeton (26th) St. 
Austin, TX 78705 
(512) 232-1306 (voice) 
FAX: (512) 232-2399 
Website: http://www.utexas.edu/law/faculty/cvs/chj7107_cv.pdf 
For reviews, chapters, discounts and news on Johnson, Righteous Anger at the Wicked States: The Meaning of the Founders Constitution (Cambridge University Press 2005) see http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/

From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, March 16, 2009 6:43 PM
To: conlawprof at lists.ucla.edu
Subject: RE: states rights/language meaning

 

            But Hamilton talked about the rights of states.  Madison talked about the rights of states, and I hear he had some influence on the drafting of the Constitution.  Where are we getting this notion that talk of the rights of states was the exclusive province of Anti-Federalists.

 

            Eugene

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