It’s certainly understandable when foreigners don’t understand the different roles between the federal and state governments under the U.S. Constitution, especially when few Americans understand it themselves. However, perhaps charity isn’t the best attitude when dealing with a foreign magazine that really should know better.
For example, The Economist‘s latest issue includes an editorial about California’s new law liberalizing marijuana use. Unfortunately, the magazine’s understanding of states rights is simply a mess.
State activism is often confused with an argument that sounds similar but is fundamentally different. To many American ears, the notion that states should do their own thing has an echo of secession, the “states’ rights” defence of slavery made before the civil war and the resistance to federal civil-rights laws in the 1960s. To be clear: states do not have an innate right to resist federal laws, which is why California’s position on immigration enforcement, which comes close to non-compliance with the federal government, is mistaken. The federal government does often need to step in on questions of fundamental importance, such as who can vote in elections.
But in many areas, particularly in social policy, it makes sense for the states to have plenty of leeway. When mistakes are made, as they inevitably will be, the damage is limited to the state or city that did the experimenting. When new laws do succeed, they can be copied across the country.
What is absent from The Economist‘s analysis is any understanding about where the respective scopes of the federal and state governments.
In essence, the activities of the federal government under the Constitution is limited to Article 1, Section 8, which, according to Brion McClanahan, is essentially focused on common defense and commerce. States are otherwise free to address any issues outside of that scope. That would also include immigration. As McClanahan writes:
You see, immigration was long considered a State issue. Jefferson said as much in the Virginia and Kentucky Resolutions of 1798. A State like Texas could, at least according to the original Constitution, build its own wall and craft its own strict rules on immigration and state citizenship. That includes voting. The Constitution is clear that States determine who can vote as long as the distinction is not made on the basis of race, sex, age over 18, and the requirement of a poll tax. They can prohibit aliens from voting.
In other words, whether the state can act on a particular issue has nothing to do with the sensitive feelings of those who don’t know American history, and everything to do whether the state has the legal authority to do so. A state has every right to “resist federal laws”, especially when they overstep the rights of its citizens. All the American civil war proved was that the North was military and economically more capable of overcoming the South’s desire to secede from the Union. Force does not negate an argument. States today have as much a right to nullify unconstitutional federal law, or secede from the United States, as they did when the Constitution was ratified in 1788.
The Economist clearly demonstrated that it understands none of this, notwithstanding its support for California’s liberalized pot laws. Unfortunately, given my previous rants about the magazine, this is not a surprise in the slightest.