States' rights and natural rights:

(Originally Posted on Freespace)

Regarding my comments on Everson, a reader writes, “Freedom of religion should be left to the states, not the federal government, for the same reasons that abortion should be left to the states. Rather than having a majority rule the entire country on [divisive] issues, such as school prayer, you should have the states experimenting with finding a correct balance. The market forces will eventually demonstrate which state policy is correct, and allow for dual successful models where appropriate. It is entirely rational to see Western states adopting very Newdow-like policies and the Bible-belt sticking to school prayer.”

Although I think there is tremendous merit to states' rights solutions, the problem here is that the religion clauses are essentially derived from the natural right of liberty of conscience. States ultimately don't have proper final authority over our natural rights. But that doesn’t mean that states shouldn’t have the first crack at righting wrongs. The states’ rights model is often useful in helping to secure natural rights because sometimes its just not feasible to secure these rights at the national level, better to let the states do their best to secure them, and then have the national government step in when the time is right. Slavery is a good example—it certainly wasn't feasible to secure those natural rights at the time of the founding (the slave states wouldn’t have ratified the Constitution if this were demanded) and it ultimately took a civil war to do it. I think Lawrence v. Texas was properly decided—but at the time it was, only 13 states had sodomy laws. Ditto with Loving v. Virginia—only 16 states had laws against interracial marriage at the time that case came down. There may very well be a natural right to gay marriage (or not). But the US Supreme Court ought not to impose gay marriage any time in the near future—it would tear this country apart. Leave it up to the states, and maybe when say 35 of them voluntarily recognize gay marriage, then have the Feds step in and secure the right in all states.