State Rights vs Federal Protection

Three interesting stories intersected over the past week that bear a greater degree of scrutiny than the media typically provides.  Completely unrelated, they actually share a nexus that is emblematic of many of the philosophical problems we have as a society.  Namely… our intelligencia is abjectly grounded in achieving empirical outcomes with little to no regard of the underlying purpose of our system of government, or the philosophical rationale for having a system of limited government in the first place.

Let’s start with the hundreds of “talking heads” that bloviated on the airwaves after President Trump walked out of the “infrastructure” meeting with Speaker Pelosi and Minority Leader Schumer.  The President’s rationale for walking out of the meeting was that he is tired of being investigated.  “You cannot both investigate and legislate at the same time,” was the paraphrased statement of the President and the mantra of his Lieutenants on various news programs.  The Left responded with abject condemnation.  Legislation must be done!  We must allow for both legislative efficiency as well as branch oversight!  My God!  The rate of legislative throughput is being compromised by these petty squabbles! 

Ummmm… maybe this is a good thing?

As I have mentioned before, legislation, all legislation, is an abrogation of liberty.  The whole concept that the Framers had in mind was to limit the amount of restrictions on individual liberty and set up a system specifically to make legislation inefficient. 

Government is not to provide an outcome.  Quite the contrary, government is to provide a “safe space,” if you will.  A society where individuals have the ability to pursue happiness independently and consistent with their own individual perceptions of what happiness is.  Virtue cannot be achieved with coercion.  If I place a gun to your head and demand that you give your money to someone next to you, who may very well need it, your act of giving that money (which you may have done anyway without my interference) cannot ever be a virtuous act. 

Then there was Mark Cuban.

The possible presidential candidate decided to weigh in on the 2A debate with this interesting idea:  Recognize that the Second Amendment exists to protect a right to bear arms… but let the individual States regulate how they want their citizens and visitors to exercise that right.

What the hell?

This is an example of what I mention above as being outcome determinative policy with no regard to underlying political philosophy. 

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Imagine a world where the States have the ability to regulate a fundamental right like firearm ownership and use.  Wait!  There is no need to imagine… we have California, New York, and Hawaii to serve as excellent examples! 

And why are we so specific when we deal with the Second Amendment since, according to Mr. Cuban, we are free to screw around with fundamental rights?  Forget the fact that the 14th Amendment incorporates these rights directly into State Constitutions.  Why let Constitutional jurisprudence get in the way of “good” policy?  Let’s expand on this and start letting the states regulate all of our fundamental civil rights!

Chicago has a massive problem with crime (as does Detroit, New Orleans, and any other major metropolitan city).  That crime could easily be mitigated if we let law enforcement enter any premises, at any time, for any reason.  Moreover… it might be necessary to rough up, and dare I say, kill certain citizens who… well… just need killing.  If we let the various States regulate the Fourth Amendment, we could really make some serious inroads on crime!  After all, the Fourth Amendment might need to be implemented differently in St. Louis than in Jackson Hole.

Then there is Presidential Candidate Kamala Harris.

She is particularly distressed at the idea of the various States regulating (or nullifying) Roe v. Wade, as we saw in State legislation two weeks ago.

In a speech, she said that any proposed State law that would affect a “woman’s right to choose” would have to be approved by her (assuming she becomes President) Justice Department before it was able to be passed into law at the State level. 

Wow… I actually am not entirely against this idea!

Again… let’s expand it!  In Roe v. Wade Justice Blackmun articulated that the State does not enjoy a protective interest in a fetus during the first trimester of pregnancy.  This was essentially a balance struck between the privacy interest of the woman and the protective interests of the State in protecting a fetus.  Blackmun used the privacy argument that was articulated in Griswold v Connecticut.  In that decision, authored by Justice Douglas, the “right to privacy,” while not explicitly found in the Constitution, existed in the “penumbras” of all of the articulated rights.


So… Senator Harris is completely prepared to force federal oversight of potential State laws that would affect a right not really explicitly articulated in the Constitution… but shows little interest on offering the same level of federal protection of laws that are explicitly antagonistic to specifically enumerated individual rights.

I would utter a long sigh… but Senator Harris, like the pundits and Mr. Cuban, is not interested in intellectual honesty.  Being unmoored from the Framers’ intent to limit the intrusion of government allows them to come up with all sorts of fun and exciting things doesn’t it?

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