I am opposed to “states rights,” for I believe that it betrays both a basic conceptual confusion and a misunderstanding of the relationship of the states to the federal government. States don’t have “rights”; under the American constitutional system “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The question is: what powers are prohibited to the states? In the opinion of the writer who defended the Kelo decision as a victory for “states rights” and therefore as a just and lawful decision, it seems that no powers are prohibited to the states, that their powers are plenary. I strongly dissent.
Palmer is just a liar. I have not advocated states’ rights. I have advocated limitations on federal power, and a system having both horizontal separation of powers (legislature, executive, judiciary) and vertical separation of powers. Of course only individuals have rights. I have also stated explicitly several times that the Constitution does limit the states in some ways, and I have explained that this does not change the fact that their powers are plenary. Palmer is just being cute by repeating his charge after I have denied and refuted it.
Palmer’s evasions are meant to avoid having to answer the simple question: where does the Constitution authorize the federal courts to strike down state laws that violate rights expressed or implied in the Bill of Rights?