Should human rights be determined by the serendipity of location ?

The principle of subsidiarity, enshrined in the European Union’s treaties, says that decisions should be taken at the lowest level possible practicable. It’s arguably an essential component of trans-national agreements and bolsters national sovereignty. In general nation states should take their own decisions and in the EU, despite the moaning of hard line Brexiteers, they do.

Which brings me to federal nations and other countries, like the United Kingdom, which have elements of federalism about them. Let’s deal with the latter first. Scotland, Wales and Northern Ireland do some things differently but are, arguably, no less British for it. The Scottish legal system is different to the English. Since devolution and the setting up of parliaments in Edinburgh, Belfast and Cardiff subsidiarity in the U.K. has increased.

Federal republics are premised on a voluntary association of separate states. This, nominally at least, gives these states the freedom to be the different. In Germany, for example, the differences between, say the states of, Prussia and Bavaria are minor. It’s a federal republic but the nation is more important than the state.

Which brings us to the United States where there are few more contentious issues that “States’ Rights”. The founding fathers seeking to find a way of binding different ex-colonies together created a Constitution which enshrined a high degree of subsidiarity in their governance. Less than a hundred years later this led to Civil War.

The American Civil War was a conflict about States’ Rights – in particular the right of individual states to keep slavery. South of the Mason-Dixon line eleven states seceded from the Union over the matter leading to war.

Slavery is a Human Rights issue and for Abraham Lincoln no member state of the Union could have the option to do their own thing on human rights. After the War the Constitution was amended to recognise this – at least as far as slavery was concerned.

But what is a nation if it is not consistent across its territory on human rights? Let’s predicate an imaginary situation where a murder is committed in one state and just down the road, across the state line, an identical murder takes place in an adjoining state. One guilty murderer could face the death penalty whereas the other would not because his offence was committed in a state that had abolished capital punishment.

Should individual states really have the freedom judicially to execute someone – surely, like slavery, this is an area where national consistency should apply ? Which brings us to Roe v Wade.

In 1973 the US Supreme Court ruled that the right to have an abortion is a human right that should be applied consistently across the country. It was an issue where, like slavery before it, States’ Rights should be subordinate to federal law. Recently changes to the composition of the Supreme Court thanks to Donald Trump’s appointments are such that it looks like Roe v Wade will be overturned. As with capital punishment your human rights will be determined by which side of a state line something happens.

Subsidiarity is limited in most jurisdictions for practical and sometimes cultural reasons. But in a nation, and arguably at a higher level, surely human rights are a constant? Should one American state be liberal whilst an adjoining state is conservative? Should human rights, especially in the case of abortion womens’ rights , be determined by the serendipity of location ? Surely not.