Get arid of "states' rights" terminology and replace with what it is proxy for.
stevenjamar at gmail.com
Tue Mar 17 08:11:39 PDT 2009
Hmm. States were given disproportionate power in the senate and the
federal government was to be one of limited enumerated powers.
States have the power to do lots of stuff. Even after the civil war
amendments properly applied. I think the term "states rights" does
little good and some harm. But I don't think we can stop its usage,
correct or not (and I think it may be imprecise ormosleading at times,
but not historically or jurisprudetially or semantically incorrect).
A number of things about our system of government, power, and rights
is, from my lights, messed up. But I don't think merely setting the
words right will fix anything--even if it were possible to do so.
Better to argue about substantive problems and solutions than words--
especially when those words are not so inaccurate but rather just used
as code for a concept that allows the great mischiefs complained of.
Another such phrase which can distort: intellectual property--makes
some people overemphasize the anology to real property in ways words
like trademark, copyright, and patent do not.
Sent from Steve Jamar's iPhone
On Mar 17, 2009, at 9:43 AM, "Calvin Johnson"
<CJohnson at law.utexas.edu> wrote:
> 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 de
> legated” limitation, in the face of the cries of the Anti-Fedralists
> . I don’t see how you can read the grand design of the Constituti
> on as limiting the federal government in favor of the states under t
> hose circumstances. So if you want to define states rights as l
> imitations of the federal government in favor of the states – a defi
> nition 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 ari
> ses 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.
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