The Laughing Wolf

Judge Moore and States Rights

The case of Judge Bean, er, Moore, has received a great deal of commentary and analysis from a legalistic perspective. What has not been discussed in great detail, however, is that this issue is in many ways less about religious tolerance/intolerance, but about State’s Rights.

While it annoys many people, it is very true that the American Civil War was not fought over slavery. Slavery was simply the most emotional of several catalyst issues that fronted the fundamental issues of the power of the Federal government versus State Governments. This was, and is, an issue that goes back to the War of Independence and the Articles of Confederation.

Despite what is often taught in school, the Constitution did not spring forth full grown from the breasts of the Founding Fathers. Instead, for many years, America operated under the rules of the Articles of Confederation. The Constitution came out of a conference that was designed to simply revise the Articles of Confederation, but was – in essence – hijacked by a group of Federalists who came up with the Constitution sans the Bill of Rights. With the addition of the Bill of Rights and much debate, a majority of the States finally agreed to ratify the new document.

It was the issue of the division of the powers of government that was behind the imperfect Articles and the new Constitution. As is always the case, governments and politicians do not and will not give up power. One of the prime problems with the Articles was that they allowed the States to each enact tariffs and such between each other, hampering trade and economic development. Said tariffs and taxes were how State and local governments funded themselves and maintained power. The fact that these items ultimately hurt the States and the country as a whole was small matter beside the retention of power.

The Constitution was, in part, designed to curb such excesses by providing a stronger Federal government that had the power to prevent such abuses. As with other systems, there were supposed to be checks and balances between the power of the member States to order their affairs and the affairs of their citizens and the power of the Federal government, which was to maintain economic viability and ensure that basic rights were protected in a uniform manner. Needless to say, this created much more than the dynamic tension intended.

There were several catalyst issues that arose, but the one that gripped the attention of the public was that of slavery. It emphasized the difference between the economies of many of the states, it emphasized the differences in local control applied, and it brought to the fore the possibility that in enforcing basic rights that the Federal government had the right and the ability to apply those in a manner not previously addressed.

With slavery as the public issue, the underlying foundation of the disagreement centered on if States had the right and/or the responsibility to withdraw from the union created under the Constitution; on the rights and responsibilities of the Federal Government to impose its will upon domestic matters of the States; and, on if the States had the right to reject Federal interjection into any given area. The decisions were reached not in court, but on the field of battle. Often overlooked in many history texts is that Abraham Lincoln tied the Constitution up in knots to save it (and rigged an election to do so) and that it was the unwritten interpretations of the Constitution and Constitutional law that were changed by the war.

Since that time, the rights of the States have been secondary and waning in comparison to the power of the Federal government. Indeed, a conscious decision was made to break the power of the States lest another civil war take place. Since that time, by court ruling or by direct action, the power and size of the Federal government has grown. This has not been an easy process and there has been bitter resistance at the State and Local level.

For now I will not go into the concept of multiple local governments and the positive and negatives of same. Nor will I go into many of the other interesting possibilities for discussion. What does matter is that the graven image in Montgomery has become a focal point for the State’s Rights movement.

Rather than simply being a matter of separation of Church and State, there are those who see this as the right and ability of a State to set reasonable goals, limits, and choices in place for their citizens. It is felt that the States have the right to choose such things for themselves, and that such should not be dictated by Washington.

While this is an emotional lightning rod on par with slavery for many, it is not a wise choice insofar as State’s Rights are concerned. The Constitution, and I believe even the Articles, clearly state that there is a separation of Church and State. This was because not all the Founding Fathers were Christian, of the majority who were publicly such some or even many were Deists, and because they had seen – often firsthand – the problems that arise with a State religion. Because America was a melting pot of beliefs and ideas, and the joys of State religions so well known, it was decided to let all practice as they felt: Christian, Jew, or other. Taken to its logical conclusion, it also means that people are free to not practice any religion.

While the latter can be argued, what cannot be argued is that even before the Constitution the will of the Founding Fathers was clear. There would be no State religion, nor would any one sect within any religion be raised above others. This was one of those areas of basic rights that was clearly and specifically reserved to the Federal government, not the States. It was made clear to the States even before the Constitution that they were not to attempt to set up a State religion within their prevue and the acceptance of same was shown by the fact that none did so.

While the limits of government, including the powers of the State and the powers of the Federal government, needs to be addressed, this is not the issue for it. On this issue the matter has been made clear from the moment of liberty. To attempt to use it as one such is doomed to failure. There are other issues that will catch the attention of the public and reach the emotional levels of this one, and those seeking to use the monument would be much better served to find and promote one of them.

-30-