Homicide itself, not even considering abortion, is a state crime that is differently determined and treated across the 50 states. And the differences are not random, they were determined by the separate deliberative procedures and laws developed by the representative processes of each state. At the start of the country on federal level, only three offenses---treason, counterfeiting and piracy---were considered within its jurisdiction, all else was understood to be the province of the states to determine or prosecute.
You seem to be under the common and false impression that the Constitution does not apply to "states". Even if that had been the Framers' original intention, it is wrong.
The United States is a club of sorts, made up of individual territories that at one time claimed sovereignty. They did each in turn "apply" for membership (original 13 colonies were a bit different, but not so much so that we could not say the same of them in the relevant senses) and were granted it on the proviso that they accepted certain conditions and rules. One of them, the most important one by a vast margin, was the Bill of Rights, which enumerated certain key rights of men, recognizing and holding them sacrosanct, as well as acknowledging the innumerable rights of all free men (Amendment IX and, lesser, X). The BoR could actually have served as the body of the Constitution, the rest of it being left on the cutting room floor for all I could have cared, because it remains the ONLY thing that keeps those last manacles from being clapped on to our wrists and ankles.
To suggest that the 1A applies only to the fedgov, the direct and unavoidable implication being that "states" hold the 10A right to establish mandatory state religions and silence the speech of free men is absurd and beneath contempt on its face. The idea that "states" are empowered to disarm their respective populations, to deny due process, to quarter military or police in others' homes at will, to employ cruel and unusual punishments (including torture to extract confessions in subversion- or arbitrary redefinition-of due process, is equally abhorrent even in the face of the least critical scrutiny.
The BoR was an addition that says, "if you want to be in this club, here are the rules by which you shall comport yourselves, and the fedgov SHALL have the power to enforce these rules of comport upon you because those edicts are the Law of the Land. PERIOD." There is no other interpretation that even makes sense on this issue. The "states rights" interpretations basically say that free speech is only defensible against arbitrary violation by the fedgov, but that states are free to silence their people. Must I point out how revolting and abhorrent this notion actually is on its face?
State's rights is relevant because it accordingly decentralizes government, and thereby makes it easier to correct or reverse its centralizing abuses, on this or other subjects.
That is the theory, but we see how well it has worked in practice.
Firstly, there is no such thing as a "state". The term itself is an abstract construct of shorthand speech, a mere linguistic convenience that points to nothing possessing a reality of its own above and beyond that of a group of people acting in accord with a script. That is IT. When one conducts a noiseless analysis of the notion of "the state", we see there are nothing but vapors and people. Yet those people would have the rest believe that the vaporous shades are stone and steel. This is lies, deceit, and grotesque ignorance at play. It is idiocy of the first order and of such danger that it claimed 200+ million lives in the course of a single, miserable century of humanity run wildly insane behind ideas so lacking in validity that the fact that so many people accepted them as true and sound "law" constitutes proof of how quietly deranged the human race has become. Or would you argue that the notions and pursuant actions of the likes of Stalin and Mao were sound, valid "law" in action?
The 10A is a horrible stain upon the face of the BoR and ought to be either excised or rewritten for clarity, completeness, and correctness.
Secondly, a "state", being a non-extistent entity (or at the very least a non-living one) cannot have
RIGHTS. A right is a claim. Can my '32 Ford three-window coupe make claims to anything, even leaded, high-octane fuels? Short of ingesting a very stiff dose of LSD, I am unable to see how it could; and even then. Can your kitchen sink lay a claim of any sort, even to its own existence? No. Then how can a "state"? Short answer: it cannot because even if we grant that it has an existence of its own, which it does not, it is nonetheless
INANIMATE. Therefore, "states" have no rights of which to speak. Being non-existent, they really do not even have powers, but that is a discussion for another day.
Our Constitution is a study in the grand political short-shrift. But once again I voice my forgiveness to the Framers and assume their best intentions, rather than that of ensnaring the people with pretty words ( a BIG assumption, I admit, but valid for the purpose of this discussion). As I have pointed out at least once before, they were children of Empire, monarchy no less, raised on basic assumptions so deeply seated, such as the king being a given in the world, that the fact that they wandered far enough off the plantation to conceive of this in-hindsight weak mishmash of specifications for a free nation, is something of a miracle. But that miracle of the day, which still holds a greatness in its bosom as valid now as ever before, comes under need of clarification such that it may be better and more broadly understood by people, more deeply respected and valued through the lens of one's own precious and rightly esteemed freedoms, and either edited, replaced, or at least viewed with different eyes such that the people will no longer be vulnerable to the brands of abuse to which they have acceded since the earliest days of the Republic, in main due to the understandable absence of certain perspectives that we have been privileged to acquire through the agency of many decades of said abuses and the horrors of the Twentieth Century's mass-mechanization of oppression and murder.
Decentralization is not the issue in question here - I am fully on board with that notion, more so than most. It is the question of a "state's" valid powers I take to task and assert that they have few, if any, and that the shorthand of "state" is dangerous and should be excised from general usage. Forsake "state" as a deceptive term, as well as that of "government", their validity being near zero, the dangers they carry nearly without limit. Replace it with gover
nance, which is what we should all be doing in order to keep one another on the right paths of behavior at the margins of our rightful prerogatives as individuals. Dispense with the lousy notion of the "state" and the "government", which corrupt and dangerously ignorant men have employed to justify their outrages against their fellows, and come back to plain language not of
things but of
deeds or
functions. Think not in terms of what the "state/government"
is, but what it is supposed to
do. Form v.
function. In truth, so-called "government" is should be nothing other than people guaranteeing and protecting each others' rights, and nothing more.
There are no "state interests", "states' rights", and so forth as the courts and other dangerous malefactors have asserted in the past. To assert that the "state" has a "compelling interest in..." is definitive proof at the very minimum of an ignorance so deeply dangerous that the person uttering such blathering nonsense should be shunned by all such that he becomes an exile
in situo, his ability to negatively effect the lives of others staunched off in fullest measure, at least until such time as he comes to a better understanding of truth and propriety in proper human relations. I would not, in fact, be completely opposed to caning or horse-whipping such men when such grotesque mis-pronouncements and other abuses of sacred language are made in their official capacities as guardians of freedom - and that is precisely what ALL politicians are supposed to be: sentinels and protectors of the inborn freedoms of all men.
Of course it is. So what? There is not nor can there be any ethical precept about which this is not true.
