The Salvation of States' Rights
Or we succumb to a federal leviathan with an insatiable appetite for power.
Barack Obama’s administration once again revealed its contempt for the Constitution last Friday. A letter signed by officials at the Departments of Justice and Education was sent to every public school district in the country, and it’s nothing less than federally inflicted blackmail: Either transgender students get to use whatever bathroom they choose, or those districts could be subjected to lawsuits and/or a loss of federal aid. Thus the stage is set for a battle that may ultimately decide the nation’s future. Either we restore the notion of states' rights, or we succumb to a federal leviathan with an insatiable appetite for power.
The Obama administration, and by extension the American Left, have made it clear they have little use for federalism. U.S. Attorney General Loretta Lynch, revealed to be every bit the ideological hack as her predecessor Eric Holder, is busy threatening North Carolina with a loss of Title VII and Title IX funding unless Gov. Pat McCrory dumps the recently passed “Public Facilities Privacy and Security Act.” It requires people to use the restroom that aligns with the sex on their birth certificate. That there is no mention of “gender identity” anywhere in the Constitution — meaning either the states or the people themselves determine such issues — means nothing to our would-be federal overlords.
Furthermore, the administration is creating rather than executing law. As National Review’s David French explains, neither Title VII or Title IX prohibits sexual-orientation or gender-identity discrimination. LGBT activists spent 20 years trying — and failing — to get the law amended, using the Employment Non-Discrimination Act (ENDA) as their vehicle. Nonetheless, incremental changes to Title VII were engendered by “federal regulators and lawless federal judges,” leading to the Equal Employment Opportunity Commission unilaterally amending the statute last July, forbidding any discrimination based on sexual orientation and gender identity. “At a stroke, the EEOC decided that it was going to essentially enforce ENDA — a statute that doesn’t exist,” French writes. “Democracy wasn’t working fast enough for the Obama administration, so it decided to give authoritarianism a try.”
It is likely many Americans don’t frame the so-called “bathroom wars” in terms of states' rights vs. authoritarian federal overreach. But if the 2016 election cycle has made anything clear, it is the idea that millions of Americans are fed up with an Us vs. Them status quo best described as the People versus a cabal of pompous elites dedicated to a one-size-fits-all, top-down ruling apparatus ensconced in Washington, DC.
It is time to reverse this odious trend. As National Affairs editor Yuval Levin explains in his new book, “The Fractured Republic: Renewing America’s Social Contract in the Age of Individualism,” Americans on both sides of the political divide are immersed in “Baby Boomer nostalgia.” Liberals long for a return to the radicalism of the 1960s, and conservatives for the Cold War victory of the 1980s. Levin also believes both groups pine for the 1950s when the American dream was readily attainable. The commonality of those dreams lies in the mistaken idea that DC is the vehicle for restoring them.
Levin sees this as a fool’s errand, insisting institutions that give Americans individual choices are best suited to 21st century living. Columnist Jonah Goldberg poses the ultimate question: “What would be so terrible about letting diverse communities decide how they want to live and spend their tax dollars?”
Only the devolution of power from DC — along the notion that a collectivist and enforced national unity is the ultimate panacea for what ails us.
Such a notion is utterly at odds with reality, and has been since the birth of the republic. Article One, Section 8 of the Constitution lists exactly 18 “enumerated powers” that accrue to the federal government. The Ninth and Tenth Amendments make it clear anything beyond those enumerated powers accrues to the people and the states, respectively. The reason for that construct is simple: The Founding Fathers believed individual Americans acting in their own best interests would produce far better solutions to the nation’s problems than edicts emanating from a central bureaucracy. A central bureaucracy that now embraces a level of authoritarianism far exceeding its constitutional limits.
A laughable tweet disseminated by Sen. Elizabeth Warren (D-MA) demonstrates the obliviousness of our ruling class. In a shot at presumptive GOP nominee Donald Trump, Warren warned that the 2016 election “will determine whether we move forward as one nation or splinter at the hands of one man’s narcissism and divisiveness.”
Isn’t that splintering precisely what America has endured for the last seven-plus years, Ms. Warren? Isn’t it precisely one man’s narcissism and divisiveness driving the attempt to completely usurp states' rights using fiscal blackmail as a hammer?
“As the more astute political observers will have noticed over the past few decades, there exist a number of discrete social and political camps in this country, and they’re pretty implacably opposed to one another,” writes National Review columnist Charles C.W. Cooke. “As a result, it really doesn’t matter who wins in 2016; whatever happens, the result is going to upset just under half the people.”
Other than rare instances of national unity, usually driven by tragedy or war, it has always been this way. Yet for much of our history, such divisiveness, animosity and a sense of powerlessness was mitigated by federalism and individual rights.
The best way for Americans to reacquire greater power over their own lives is to divide it into the smaller “live and let live” segments federalism and individual rights represent. An added bonus? Those who resist such efforts will be unmasked as the arrogant would-be tyrants they truly are.
Ironically, it is the arrogant would-be tyrants of the Obama administration forcing the states' rights issue front and center. With any luck, they are sowing the seeds of their own over-reaching destruction.