NOT ABOUT SLAVERY!

It was recently argued in the Richmond (Va.) Times-Dispatch that, though the federal government should be highly restricted (no argument from me there), states' powers are presumably unlimited!  It makes no sense at all that the "Founders" would have highly restricted the federal government (for good reason) then give the states a "blank check" of power!  If true, then there would be no need for state constitutions!  If the state legislatures could do whatever an electoral majority wanted, why bother with a constitution delineating the various powers and functions?

Contrary to the beliefs of a lot of people hereabouts, the states are as individually restrained in their powers by their own constitutions as is the federal government by its own Constitution.  Most of those state constitutions were adopted after the Revolution!  Some of the 13 original colonies had adopted their own constitutions (like Va.) before the Revolution, but the necessity of "state" ratification of the federal Constitution was a considered political decision, not an inherent legal decision.  The states had no legal standing at all after the Revolution relative to the then-weak national Confederation government but by whatever the Articles of Confederation had recognized.  They were basically just "colonies in rebellion."  In the subsequently adopted and ratified US Constitution there is no "savings" clause for the Articles of Confederation, which have now expired, so any previous status conveyed thereby has been supplanted by and merged into the existing Constitution.  There is also no constitutional clause at all declaring nor even acknowledging the "sovereignty" of the states themselves!  One should also note that the references therein to the US are as "THE United States" (singular), not "THESE United States" (plural).  The Preamble establishes the US is in the name of "we the PEOPLE," not the "we, the STATES."

It is true that the 10th Amendment "reserves" federally nonallocated powers (not "rights") to the States, etc., but there is no way that anyone can argue that the delegates to the Constitutional Convention were authorized to affirmatively allocate specific powers that the states were supposed to have.  "States' rightists" seem to believe that the 10th Amendment is a "blank check" of otherwise unlimited power to the states.  That is simply not so, since it refers only generically to "powers" and does not elaborate.  All the 10th Amendment can do is to say what the federal government cannot do.  One may never logically infer a "positive" from the "negative."

George Washington lobbied vigorously for a strong federal government that would allow the raising of an army and navy (as Article I specifically does) because the Articles of Confederation did not do so, and he was inadequately served by the colonial/state governments during the Revolution who would not and did not furnish adequate numbers of militia under his command!  Washington was very lucky to have defeated the British, who were probably more likely defeated by their own arrogance and hubris than by the might of US resistance.  That is in all the biographies of Washington that I have read.

The states have been coming up short ever since before Yorktown.  They often simply don't do "right," and it is foolish and short-sighted to base one's expectations of justice and competence on the efficacy of the states' governments.  As far as I am concerned, that has been the political reality ever since 1776.

As for our Supreme Court, we should note that each "state" has ratified the US Constitution AND thereby subordinated itself to that Constitution as to whatever is contained therein.  (Consider the "Supremacy Clause" in Article VI.)  In the American system of government, there are three distinct, separate and equal branches: legislative, executive and judicial.  In an ideal world they are supposed to exert "checks and balances" on each other.  For better or worse, the US Constitution provides that the federal judiciary are not to be chosen democratically like elected officials but by the process of nomination by the Executive Branch (President), then "advice and consent" by the US Senate.  Presidents and Senators ARE chosen democratically, but they are specifically delegated with the power to select and install judges in the name of the majority.  Thereafter, the federal judiciary are not directly subject to whatever the majority wants.  I think the Founders did that on purpose.  The "majority" directly controls 2 out of 3 branches of government, but not the US judiciary.

As John Marshall said, it is the business of the Congress to make the laws, but it is the business of the courts to say what the law "is."  The legislatures cannot possibly address every variable by the statutes, so the judiciary must resolve the differences that arise.  And, it is also the job of the judiciary to tell the majority when they are wrong, to speak truth to power.  If the majority had unlimited power, that certainly would not be the case, but our Constitution wisely puts limits on the majority, so somebody else has to say "when."  That is exactly the function of the courts--to say "when."  We cannot trust the President nor the Congress to be the sole judges of their own compliance.  The voters clearly have the power to remove those who step out of line (rarely used) at election time, but that is in no way negated by the courts having their own powers of review.

Judges are not supposed to kiss the asses of the majority and just suck up to whatever the majority apparently wants to happen.  Those are the notions of "hyper-democrats" who would have everything (including our rights to be free from majority tyranny) put up for a vote.  They seem to think that the judiciary should always subordinate itself to whatever the legislature does or whatever a current majority seems to want.  For example, a lot of idiot "states' rightists" incredibly still believe the US Supremes' decision to desegregate the schools in 1954 exceeded its inherent powers via "activist judges" and, therefore, was a violation of "federalism."  They would argue that if a state majority (as manifest by the legislature &/or the governor) wants something to be so, then it has the inherent power to make it so, and we individuals and the courts can just go pound sand.  By that pathetic (il)logic, if a state still wanted to enforce Negro slavery it would be thus.  Fortunately, the states no longer (if ever) have the constitutional power to re-establish slavery or to re-segregate the schools or lunch counters.  They are impotent--as intended.

So, that is what the "Civil War" was about--slavery.  My authority for that assertion is the Confederate Constitution itself which, I daresay, most "states' rightists" have never read.  Like most other half-wits around us, they just cluelessly blather their uninformed opinions:

FROM THE CONFEDERATE CONSTITUTION (my copy, which I have read SEVERAL times, stays right beside this computer next to my copy of the US Constitution):

Article I, Section 9.  Limits on [Confederate] Congress, Bill of Rights 

1.  Prohibits "importation" of "negroes of the African race" from anywhere OTHER THAN other slaveholding states in the US;

2.  The Confederate Congress may also prohibit the "introduction" of slaves from any State or territory NOT already a member of the Confederacy;

Now, these two provisions may seem somewhat humanitarian at first glance, but they also have the effect of preserving the VALUE of slaves already held since more imports (& the resultant increase in numbers) might drive down the value of existing slaves;

4.  "No ... law denying or impairing the right of property [my emphasis] in negro slaves shall be passed."  Indeed.

Article IV, Section 2.  State Citizens,  Extradition

3.  "No slave ... escaping ... into another [free Confederate State] shall ... be discharged from such service or labor; but shall be delivered up...."  [My emphasis.]

Section 3.  New States

3.  The Confederate States may acquire new territory....  In all such territory the institution of negro slavery, as it now exists in the Confederate States, shall be recognized and protected...."  [My emphasis.]

For a movement supposedly not about slavery, that's an awful lot of constitutional verbiage about "the right of property in negro slaves."  I have yet to find any reference to the economic predations of the Northern states, to the tyranny of the US government, or to the imperial machinations of Abraham Lincoln, as the usual arguments go.

I must point out yet again as I have many times already that the Southern Confederacy, much like the national confederacy that existed prior to the adoption of the US Constitution, was a pathetic pretend government whose currency wound up worthless that also got soundly defeated, despite the loser generals in charge of the US Army, in a Civil War that the idiots in South Carolina started and the idiots in the other Southern states were too dumb to stay out of.

The US government is certainly a threat to our liberties from time to time but many states, especially in the South, have been controlled by a bunch of inbred cowards who readily sink to the level of the lowest common denominators.  I, for one, am glad that there has been a majority on the US Supreme Court willing, from time to time, to kick the states hard whenever they get too big for their own britches.  As Americans, our constitutional rights are NOT subject to denial or revocation or limitation by a bunch of half-wits in state legislatures.  All the States have subordinated their "sovereignty" to our individual rights when they ratified the US Constitution or their own constitutions.  In an ideal world, the courts should always protect the rights of the minority from the tyranny of the majority.

After all, the purest form of "democracy" is a lynch mob, where everyone in attendance agrees on the outcome except for the victim!