In his concurring opinion in Dobbs v. Jackson Women’s Health Organization, Associate Justice Clarence Thomas wrote, “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous, we have a duty to ‘correct the error’ established in those precedents.”
According to Thomas, all of these rulings should be reviewed and overturned. While Thomas doesn’t explicitly say so, he would allow issues such as contraception, homosexuality, and same-sex marriage to be decided on the state level. The federal government should not intervene and should allow states to pass whatever laws the citizens demand. This is a position that the advocates of “states’ rights” have been advocating for decades. However, the idea of “states’ rights” is flawed.
The proper purpose of government is the protection of individual rights. Individual rights protect our freedom to pursue, obtain, and use the values required to sustain life. Rights protect our freedom to act as we choose, so long as we respect the freedom of others to do the same. The idea of “states’ rights” is contrary to individual rights. “States’ rights” holds that states should be allowed to pass any laws deemed appropriate by its citizens—including laws that violate individual rights.
The Constitution was written to limit the powers of government. Those limits apply to government at every level, not just the federal government. “States’ rights” holds that the powers of the states should not be limited.
In our federal system, the national government has the authority (and properly so) to overrule state and local laws that are deemed unconstitutional. Similarly, state governments have the authority to overrule local laws that are deemed to violate individual rights. Indeed, many advocates of “states’ rights” defend state action to limit local regulations. In recent legislative sessions, Texas lawmakers have enacted or considered laws to limit the ability of local governments to restrict short-term rentals, to regulate ride-sharing services, to ban plastic bags, and more.
Local governments have decried the state’s actions, arguing for local control in such matters. But this is nothing more than the “states’ rights” argument applied to a lower level of government. “States’ rights” advocates want control vested in the state government. The advocates of local control want that power to be vested in the municipal or county government. Both sets of advocates want the power to control and restrict the activities of individual Texans, and they don’t want a higher level of government interfering.
Both sets of advocates want the “will of the people” to reign supreme, though they disagree on which people and whose will. They want the values of the majority to be imposed on everyone, though they disagree on whether the majority should be on the state or the local level. The majority should be permitted to do as it pleases simply because it is the majority. If the majority wants to ban contraception, restrict gun ownership, prohibit same-sex marriages, outlaw short-term rentals, criminalize homosexuality, regulate historic buildings, or persecute redheads, so be it. Missing from the entire discussion is the principle of individual rights.
Individual rights are the ultimate in local control. Individual rights vest power in the individual, not one level of government or another. Individual rights enable each individual to pursue the values that will sustain and enrich his life, to pursue his own personal happiness. Individual rights protect the freedom of each individual to live his life as he chooses, so long as he respects the freedom of others to do the same.
At the end of the day, discussions of “states’ rights” and local control present us with false alternatives. The alternatives are not federal control of our lives versus state control of our lives versus local control of our lives. Another alternative exists: control of our own lives with government as the protector of our freedom to exercise that control.