Democrats and state's rights...

[wyldwolf]

As a democrat, I've always been for a strong federal government - taking my cues from John Marshall, the first Chief Justice of the Supreme Court of the United States. In the seminal case of McCulloch v. Maryland, Marshall asserted, based on the supremacy clause of the United States Constitution, that the laws of the federal government were generally paramount over the laws of the separate state governments.

I've always associated "state's rights" with conservatives. For example, at a presidential campaign of Ronald Reagan where Senator Strom Thurmond was the keynote speaker, he said, this country "cannot stand four more years of Jimmy Carter ... We want that federal government to keep their filthy hands off the rights of the states."

Indeed, Ronald Reagan was a master at using the code words "state's rights" to attract conservative white voters. He even put William Rehnquist on the Supreme court who is on record as being against the Federal Government intruding on "the State's Rights."

The principle of states' rights was the fulcrum on which many of the political battles preceding the American Civil War were balanced. Slave states asserted that they had the right to maintain social institutions—particularly slavery—in whichever way their state legislatures saw fit, while the federal government and Northerners tended to disagree. Confederate States also believed that states' rights authorized them to dissolve the Union. Again, the federal government disagreed.

During the civil rights movement of the 1950s and 1960s, states' rights again become strongly associated with Southern racial politics, with proponents of segregation and Jim Crow laws denouncing federal interference in these state-level policies.

The extent of states' rights remains a hotly-debated topic to this day. The use (or non-use) of the death penalty is currently decided by individual states. Other controversial subjects entering the states' rights debate include the right to legalize assisted suicide, the right to legalize gay marriage, and the right to legalize medical marijuana, the last of which is in direct contravention of current federal U.S. law. (wikipedia.org)

I mention this because the the main (and I do mean main) problem I have with Howard Dean is his "state's rights" positions on issues that democrats have traditionally believed should be federal decisions.

For example, Medical Malpractice.

Just hours after U.S. Senate Democrats defeated legislation that would limit damage awards in medical malpractice cases Wednesday, the American Association of Health Plans called for candidates to take a stand on the issue.

Democrats who voted down the reform in Congress said the bill would punish individuals to protect groups like the American Medical Association, HMOs, drug companies and manufacturers of medical devices.

Howard Dean, a doctor, ... said the issue is best handled by state courts and legislators, not at the national level.

http://www.cmonitor.com/stories/news/politics2003/0713_malpractice_2003.shtml

Also, gun control. "Let's keep and enforce the federal gun laws we have, close the gun show loophole using Insta-check, and then let the states decide for themselves what if any gun control laws they want. - Howard Dean.

DeanForAmerica.com, "On the Issues" Nov 30, 2002

Stephen K. Medvic, assistant professor of government at Franklin & Marshall College and the co-editor of Shades of Gray: Perspectives on Campaign Ethics states that Howard Dean apparently believes that the federal government has no right to intervene in state decision-making. He bases this on Dean being opposed to making a civil unions law a federal law.

http://www.tompaine.com/feature2.cfm/ID/8387

Though I have heard good arguments that gun control should be a state issue, I've never been convinced by them.

I definitely believe that the federal government should make the final decisions involving all civil rights (a gay couple would be recognized in a legal union in one state but not another?), medical malpractice (I'd like to know that I could get what I deserved from a medical srew-up regardless of where I lived), the death penalty, assisted suicide, and abortion.

Yet, Dean only feels a few of the above are worthy of federal laws while the rest are not.

Or perhaps he takes decidedly untraditional democratic stances on them and uses the state's rights mantra so he won't have to reveal how he really feels about them and thus, would lose votes.

The most perplexing thing to me, though, is why some Dean supporters take his stances (or non-stances) on this issue without question.

Does Dean believe abortion should be a state issue? If not (or if so), why?

Medical marijuana?

Assisted suicide?

Other key democratic positions?

What are the differences in them that would make one a state issue and not another.

So, really. That is my main problem with Dean.

[arewethereyet]

1. this is the only plus Dr Dean has going for him

Read the Constitution, state's rights are protected and correctly so.

[imhotep]

2. so to sum up

Clark supporters have a problem with the 1st and 10th amendments to the Constitution. Let us know what other aspects of freedom is a problem......

[Faygo Kid]

3. Remember, states' rights can also expand civil rights

Many state constitutions have more expansive interpretations of civil rights protections, for instance, than the U.S. Constitution. I happen to agree with the governor on gun control; abortion is a federal right that is not to be abridged by the states. Med mal? Oh yes, will be a big issue to federalize in 2004; Bush pays off the doctors. Anyway, no one size fits all here. McCulloch stood for federal supremacy where the federal government has spoken and rightly usurped the playing field, not that the federal government is "generally" paramount in its power. Remember that the individual states were empowered to bar slavery, and many did. Under a second Bush term, with about four appointees to the Supreme Court, we may be very happy to retain the protections we have under our state Constitutions, because that may be all we have left.

[HFishbine]

4. My understanding

is that the Constitution should be the guide. Are rights innumerated in the Constitution in jeopardy by a state law? If so, it becomes a federal issue. If not, states can decide.

Some examples:

Abortion: Right to privacy defends reproductive choice. States cannot outlaw it.

Civil Uninions: Constitution does not address marriage, but it does guarantee equality under the law. Thus, states can make their own laws regarding civil unions, as long as they do not favor heterosexuals over homosexuals.

[wyldwolf]

5. I agree on abortion, but the same standards should apply to civil unions

If the constitution does guarantee equality under the law, then the states should be required to pass laws guaranteeing such to gays.

As they stand now, the state laws on marriage/civil unions favors heterosexuals.

[HFishbine]

8. No disagreement

You are correct. As they stand now, state laws are inequitable when it comes to civil unions. Dean explains it best in his Hardball interview. He rightly notes that the constitution gives the federal government no authority over marriage, then explains how he would assure equality none the less.

DEAN: As president, no. As president-first of all, marriage none of the federal government’s business. Marriage is a state issue. We chose not to do gay marriage in our state. California chose to do domestic partnerships. As president of the United States, if a state chooses to do gay marriage, that is their business. That is not the federal government’s business. Equality under the law is what’s important. How states get to that is their business, not the federal government’s business. What I have said...

MATTHEWS: Are you confident of that? Scalia-the Rehnquist-Scalia court went into the Lawrence case in Texas and said that the federal government had an interest in whether you can have what was called sodomy or not, legalized. And so obviously the federal government, through its courts, can interpose its judgment as to what are civil liberties are. How are you so confident that the federal government will not say what goes for Vermont, goes for the rest of the country?

You have to accept the Vermont or Massachusetts license out in the rest of the country?

DEAN: I actually, didn’t say that. Here is where I am on these issues. I think equal rights under the law is critical. We fought for that in the 1950’s and 1960’s. It culminated in the Civil Rights Act and the Voting Rights Act. Equal rights under the law for every single American. That’s part of the American dream. Now, how you get there is going to be a state-by-state basis. Different states have different laws. as long as everybody is equal. Now, the question about equal rights for gay people. This federal government has often said you must have equal rights, but in terms of marriage, it doesn’t say that you have to have marriage, it just says you have to have equal rights. And that’s what I interpret the Texas decision to have meant. That we’re not going to discriminate against people who are gay and lesbian. It did not say you have to allow gay marriage in your state. It did say there can be no discrimination, and I agree with that.

http://msnbc.msn.com/id/3607157/

[WhoCountsTheVotes]

6. States don't have rights

Neither the states nor the federal government have any rights. They have powers that are delegated to them, and that can be taken away. Nothing more.

People have rights.

[sandnsea]

7. Individual Rights, Bill of Rights

I tend to agree the States should have power to make laws and run things as they see fit. The problem comes in when they don't guarantee individual civil rights in violation of the Bill of Rights. That, to me, is what the federal government has to protect. Unfortunately, States have done a terrible job of protecting individual civil rights so the Federal govt. or Supreme Court has had to step in alot. I don't know exactly when those boundaries are crossed when it comes to somebody's health and the actual Bill of Rights. But it seems like staying alive is a pretty basic civil right, even though I'm not sure it's actually written out in the Constitution. One of those things that seems to be pretty much a given I guess.

[LittleDannySlowhorse]

9. The states' rights issue has always been pretty thorny

Wyldwolf, I think you and I had a discussion about this a little while ago --- you made the very valid point that the states' rights argument has been used to justify standing in the way of civil rights legislation. George Wallace standing in the doorway of a certain school comes to mind. At the same time, we talked about how the states' rights argument can be used to justify the passage of laws protecting gay marriage.

I'm pretty split down the middle about it, personally. I think it's largely a matter of what legislation is being promoted or protected. Long story short, if "states' rights" causes legislation that I like to get passed, then I'm for it, and if it causes legislation that I don't like to get passed, then I'm against it. To sum up, I'm a total hypocrite on this matter, and I think it's always going to be a tough call to decide when federal law should outweigh state laws, and vice versa.

[askew]

10. You are misunderstanding states' rights.

States' rights has been used by conservatives to try to prevent civil rights legislation, etc. and it has in many cases used as a "code word". However, there are valid reasons for states' rights.

Our founding fathers set up our country with two tiers of government - state and federal. In order for the federal government to establish a federal law, there must be a federal issue. This is to prevent federal government overpowering the rights of individual states. This is not something made up by conservatives or Dean. It is an established part of our Constitution, intended by our founding fathers. The difference is when conservatives incorrectly cry states' rights, as they did in the civil rights movement.

The other reason for states' rights is when an issue does not affect the entire U.S. in the same manner. In that case, it makes sense that each state set the laws to fit their population and circumstances. Not all issues are one size fits all.

As for your examples:

Medical malpractice is not a federal issue. Medical malpractice is cause of action based on negligence defined by state laws, tried in state court and awards are determined in state court. There is no federal issue here and as Dean as stated, federal legislation on this issue would most likely be found unconstitutional. This is also unnecessary legislation as not every state has a problem with medical malpractice awards. It does need to be decided by individual states and it may be decided by properly regulating insurance companies' rates, not by capping awards.

Gun control is both a federal and a state issue. The current federal laws do need to stay on the books and they do need to ACTUALLY be enforced. Dean also wants to close the gun show loop on the federal level. After that he wants to rely on each state to set up additional laws as necessary, which I agree with. I am pro-gun control, but there is HUGE difference between the gun laws needed in California vs. the gun laws needed in Montana.

Civil Unions is both a federal and a state issue. Marriage has always been a state issue. When you get married and divorced, you do it by the laws in your state. That is why California is a no-fault divorce state and others are not. That is why civil unions is a state issue. However, there is a federal law (which I can't remember the name of) that requires state A to recognize laws in state B. Also, civil unions are not currently eligible for the same federal tax qualifications as married people, which may create separate but equal situation. This is going to end up in the U.S. Supreme Court, because it is really a gray area between federal and state issues.

[Padraig18]

11. my rights are better protected under my STATE'S constitution...

... than they are under the US Constitution; there is no inherent 'evil' in being suppoprtive of the concept of 'states' rights', per se.