Federalism and Rights in the U.S.
One more class to go. I think "National Security" went OK--I gave updates on Hamdi, Padilla, and Moussaiou, and discussed how the Bush administration's treatment of "enemy combatants" and military tribunals goes back to Quirin in WWII. I, er, neglected Rasul v. Bush, so I should say something about it next week.
For the final class, I will try to do some kind of overview. For part of it I will keep developing my thoughts about federalism.
During the ratification period, the Anti-Federalists spoke for many people in believing that the states would be closer to the people, i.e. to local majorities. This was supposed to mean states would be more protective of individual rights, i.e. of minorities.
In the PBS series on the Civil War, one of the Southern historians (Shelby Foote?) comes on and says that if northerners had advanced Lincoln's doctrine, that individual states had no right to secede, at the time of ratification, the South would have refused to ratify. That is to say: the South had a consistent message, that didn't change with circumstance, and it was not a mere smokescreen for a defence of slavery: it was genuine constitutionalism. (Maybe he said "if some people" had advanced Lincoln's view, "some states" would have refused to ratify.)
I don't think this is true. I think there was widespread understanding that it was "the people of the United States" who had tried to make do with the Articles of Confederation, and it was "the people of the United States" who ratified a new Constitution. Individual states didn't decide whether or not to join. The ratification process did not involve the agreement of state legislatures, even if the ratifying conventions were one per state, and their membership was determined (largely?) by state legislatures. Lincoln was right in saying: "no state was ever sovereign, except Texas." Both Union and (eventual) abolition of slavery were accepted as part of the ratification process--it was radical states' rights doctrine that was a nutbar invention of the decades before the Civil War, and it was grounded in slavery.
On the other hand: the anti-Federalists believed, or pretended to, that the states were better guardians of rights than the new Congress and national government would be. Small states always protect rights better? Especially if they are kept poor by trade barriers? Only in a libertarian's dreams. But I think this nonsense was in fact widely believed, so I would re-formulate Shelby Foote: If the Federalists had fought to have the Bill of Rights apply to the states, not just Congress, many states would not have ratified.
Does this mean that incorporation of the Bill of Rights in the 14th Amendment (which clearly does apply to the states) is wrong, according to the doctrine of original intent? Maybe, but this is a particularly stupid and bigoted part of the "intent of the Founders" to appeal to. Don't worry, small communities will protect rights? Or rather: they will maintain conformist and moralistic laws that have the support of bigoted majorities, and therefore keep individual rights in their place?
What is the status of the old "the majority as moral community" type laws--meting out harsher treatment to illegitimate children than to legitimate ones, criminalizing certain kinds of marriage, birth control, etc. Was it all an establishment of religion in disguise? Was it a kind of solidarity and spiritual uplift, as opposed to mere conformism, that even or especially modern, individualistic republics require?
What does it mean to say: The Supreme Court was wrong to strike down state laws on morality; federalism requires letting states legislate on "police powers," extremely broadly understood? (There may be a pun in there).
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