For Gold, Peace, and Freedom


Individual Rights: Which Level of Government Is Preferable?

June 27th, 2007

This is the third and last part in my series of essays regarding the system of federalism as it applies to the United States government. The first two parts of the series can be found by following their associated links at the bottom of the article.

On the question of whether the national government or the state governments best protect the rights of the individual, I would give a slight advantage to the states. One reason for this is that although the Bill of Rights provides a good foundation for the protection of individual rights at the federal level, many state constitutions provide additional protections of rights that are not found in the federal constitution. For example, Article 1, section 3a of the Texas Constitution provides for equality under the law for people of either sex, and prohibits public discrimination based on sex. Article 1, section 12 states that the writ of habeas corpus “shall not be suspended”. By contrast, the federal government did suspend the writ of habeas corpus during the Civil War. Other additional protections found in the Texas Constitution include Article 1, section 18, which prohibits imprisonment for debt, Article 1, section 20, which prohibits outlawry, Article 1, section 21 which prohibits the forfeiture of property in cases of suicide or “corruption of blood”, Article 1, section 26, which prohibits perpetuities, monopolies, primogeniture, and entailments, and Article 1, section 30, which provides certain rights for crime victims, including the right to be treated with respect, the right to privacy, the right to be notified of court proceedings, the right to restitution, the right to information concerning the crimes of the accused, and several others. Meanwhile, states such as California and Massachusetts provide for ballot initiative and referendum processes by which the citizens of those states can amend their state laws directly by simply voting on any proposal that is able to garner enough signatures to qualify it for placement on the ballot. The federal government does not seem to have any similar referendum process.

In other cases, even though protections of individual rights may be similar at both the federal and state levels, the federal government has effectively restricted or eroded certain rights, such that the states might be seen as providing better protection by default. For example, although the 2nd amendment to the U. S. Constitution states that the right to keep and bear arms “shall not be infringed”, many federal “gun control” laws have been enacted since the 1930’s that have effectively eroded this particular right. Although many states also have restrictive gun control laws, other states have attempted to restore some 2nd amendment rights by implementing “concealed carry laws”, which allow private citizens to carry concealed firearms for personal protection. In other instances, the federal government has occasionally breached 4th amendment protections against unlawful search and seizure, typically in the name of the “war on drugs”. Through the use of tactics such as “no-knock raids” and civil asset and forfeiture laws, the private estates and personal effects of many innocent people have been seized and later sold at auction by the federal government due to the fact that the property in question was somehow involved in a “drug-related crime”. In such cases, it is often very difficult for such people to recover their property, even though the owners may have been away from their homes at the time of the seizure and had no knowledge that their property was involved in any illegal drug activities.

Of course, there are also instances of overzealous state governments effectively eroding many of the same individual rights that the federal government has. However, the federal government’s affronts to our liberty are more disturbing in this regard, especially when codified into law, because federal laws automatically apply to all of the states, whereas state laws only apply to one specific state. In any event, it is always important for people who are concerned about individual rights and civil liberties to remain vigilant, informed, and ready to take action whenever possible. This is ultimately the best way to protect our most important constitutional rights.

Related Links:

Part 1: The Principle of Federalism
Part 2: The Doctrine of National Supremacy

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