|A guide to|
|Hail to the Chief?|
|Persons of interest|
|I fought the law|
and the law won
States' rights is a concept in United States politics asserting that individual states should control most domestic policy. This is due to several theoretical ideas; some believe no single national policy accommodates differing cultures and conditions among States. Others believe most powers belong to the states, since it was they that came together to form the United States.
The US provides far more power to individual states than most other nations grant their administrative units.[note 1] States control many aspects of law within their borders, and have substantial influence on health and family policy. These powers are usually considered under the 10th Amendment to the US Constitution, which claims powers not granted to the national government are reserved for the individual states.[note 2] However, the national government plays an increasing role for many of these areas, based in part on the authority of the 14th Amendment (forbidding the abridgements of citizens' rights, as well as requiring due process and equal protection for all citizens).[note 3]
In political rhetoric, states rights are often invoked as dog whistle politics. Any conservative opposing something the national government wants to do will claim the mantle of states rights, despite the fact that the phrase was most famously used as a justification for slavery and Jim Crow laws. Interestingly, most conservatives are willing to abandon any pretense when a state wishes to do something considered liberal, like grant same-sex marriage, or allow medicinal/recreational use of marijuana.[note 4]
States' rights and the Republican Party
It is an historical irony that the Republican Party ("Grand Old Party" or GOP) is the current "states' rights party".[note 5] At its inception in the 1850s it was, of the major political parties, the strongest supporter of an activist federal government. During the Civil War, the Republican President and Congress even passed a (gasp!) federal income tax, more than 50 years before the 16th Amendment to the U.S. Constitution became the law of the land. After the Civil War, the Republicans instituted Reconstruction of the former Confederacy, which whites in the Southern states bitterly resented, because… well… no slavery. Once Reconstruction ended and the whites were able to suppress blacks' exercise of their voting rights, the Republican Party would be dead in the South for nearly 100 years, only supported by those few blacks with the franchise and a handful of white liberals.
After Reconstruction failed (and the ire it provoked among Southern Democrats), the Republican Party shied away from social issues and dictating how people should live, until the Progressive Era and Theodore Roosevelt many years later. Without its founding cause — abolitionism, the party was taken over by business interests in the post-Civil War prosperity at the peak of the Gilded Age. Given its popularity and support among the victors in the Union Army, the party remained predominant in the North and in Washington, D.C. for the next 6 or 7 decades. It was during this period however, because of its reluctance to govern after Reconstruction and its captivity to business interests, the Republican Party earned its reputation for corruption and a vehicle for powerful business interests to buy-off government.
In the early 20th century, a voter's support for either the Democratic or Republican Party may very well been based on factors other than ideology.[note 6] Region, social class, religion and other demographic factors all played important roles. To simplify greatly: New Englanders and Midwesterners tended to be Republicans; Southerners tended to be Democrats. The wealthy were more likely to be Republicans; the poor were more likely to be Democrats. Protestants were Republicans; Catholics and Jews were Democrats. City dwellers voted Democratic; countryfolk voted Republican. Immigrants supported the Democrats; the native (not the "Native" native kind) born voted Republican. Sometimes one factor was more important than the others; thus, wealthy Southern native-born Protestants were still likely to be Democrats. Ideology still had a role to play in voters choosing between the parties, but less so than today.
The presidency of Democrat Franklin Delano Roosevelt remade the U.S. political landscape, and massively expanded the role of federal government in national life. Under his administration, the federal government would adopt many liberal programs to ameliorate the plight of the nation's poor and end the Great Depression. African Americans, who had significantly supported the Republicans after the Civil War, increasingly voted Democratic. The Republicans were now the party in opposition. Thus, liberals tended to become Democrats, conservatives tended to become Republicans. The major exception was the Southern wing of the Democratic Party, which was the most conservative political faction in the country, particularly on the increasingly prominent issue of civil rights.
Roosevelt did little on civil rights, mostly because he wanted to avoid a split with the Dixiecrats within his administration, and continue the New Deal. And probably the ongoing war was a factor as well. He did, however, have the segregated Black Cabinet, a group of around 45 African-Americans working in his administration, some of the first blacks to ever get a position in government. His political strength lay largely with the local Democratic organizations. In the Northern cities these were called "machines" and were controlled by a boss. In the South, the Democratic machines tended to be controlled by the local sheriffs. The machines rather liked the federal dollars that were flowing to them.[note 7] The bosses were less keen about the support some of the Roosevelt administration's New Dealers showed for civil rights, however, as the political power of the Southern sheriffs depended on keeping the blacks from voting. The bosses in the Northern big city machines had a more delicate dance. Blacks were among the strongest supporters of the machines, and the bosses depended on harvesting their votes. However, the machines' core supporters were the whites who feared blacks moving into their neighborhoods. Thus, they opposed, openly or behind the scenes, desegregation and truly open housing.
Nevertheless, civil rights remained a prominent political issue. Roosevelt's successor, Harry Truman, desegregated the military and introduced the Fair Employment Practices Commission. Some anti-communists were also civil rights supporters, worried that discrimination gave the Soviet Union a propaganda victory in the Cold War. Politicians from both parties supported the Civil Rights Act of 1957, which was much watered down to appease Southern members of the U.S. Senate, who would have otherwise prevented its passage with a filibuster. Southerners objected that civil rights legislation amounted to the federal government's interference with their states' rights to govern their own internal affairs. Ahem.
In 1964, Democratic President Lyndon Johnson introduced and was instrumental in Congress passing the Civil Rights Act of 1964. This law, which had not been watered down, was bitterly opposed by the South. The Republicans, who had been the party that had advocated a smaller federal government ever since the New Deal, saw their chance and ran on the Southern strategy, promising Southern whites that a Republican federal government would do less to interfere with their discrimination against and disenfranchisement of blacks than the Democrats. Barry Goldwater ran as the Republican candidate for President unsuccessfully on the Southern strategy in 1964, but Richard M. Nixon succeeded in 1972.
Neither candidate seemed to be particularly racist: Goldwater had supported a nondiscrimination ordinance while serving on the Phoenix, Arizona city council, while Nixon, as Vice President, had been the Eisenhower administration's point person for its support of the 1957 Civil Rights Act. However, Goldwater, in the libertarian wing of the conservative movement, had a strange aversion to expanding the reach of the U.S. Constitution's Commerce Clause (as the 1964 Act would require). Who the hell knows what Nixon really thought, if anything, in his dark, rotten, soul? Whatever they both really believed, the Republicans knew that detaching the South from its firm allegiance to the Democratic Party was a political goldmine. And it was.
In recent history, the mantra of "states' rights" has found a new suit to wear: The Tenthers. Because they take an originalist interpretation of the Constitution, they believe that any power not explicitly enumerated in the Constitution belongs to the states, and that most of existing federal law is therefore invalid. They are named after the 10th Amendment to the U.S. Constitution, which says:
“”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.
Though the term "states' rights" is still bandied about, the Tenthers have gotten more traction as the former term has become seen as an increasingly racist dog-whistle. Tenthers tend to be conservative or libertarian, although the movement seems to have attracted many with a narrow agenda against some federal law, like those who oppose the War on Drugs, religious dominionists who want to bring back state religions, tax protesters and even some gay activists. The Teabaggers of course, have latched onto this movement to conveniently declare any law they don't like unconstitutional. The Tenthers have even invoked the language of nullification, i.e. the ability of a state to ignore or override federal law. Apparently, they know their case law better than all the Supreme Courts that have declared nullification invalid since the 19th century, starting with Prigg v. Pennsylvania in 1842 — though on certain issues like the War on Drugs there's no constitutional issue, as the Supreme Court has determined that states have no obligation to assist in the enforcement of federal law. They also seem to know better than the Constitution itself, having overlooked these clauses:
- The Necessary and Proper Clause:
“”The Congress shall have Power — To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
- The Taxing and Spending Clause:
“”The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
- The Commerce Clause:
“”[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;
Oh, and of course, there's a whole bunch of case law against this notion. For starters, in 1819, SCOTUS ruled that the Necessary and Proper Clause gave the federal government implied powers in the case of McCulloch v. Maryland. The Court ruled against secession in Texas v. White. In United States v. Darby, the court had this to say:
“”The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment, or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.
However, while the above clauses have been cited to expand federal powers to a ludicrous extent, such as empowering federal involvement in the War on Drugs, it has never been the law that Congress has plenary power to do what it pleases. Such a reading would mean that most of Article I, § 8 is just redundant verbiage, a position that no one is willing to admit to taking. Instead, the Tenth Amendment has been used to strike down such provisions of federal law as § 3 of the Defense of Marriage Act. Also, the fact that Donald Trump is President and that Republicans control both houses of Congress shows the need to respect Constitutional limitations on the power of the federal government. In particular, progressives are rightfully criticizing Jeff Sessions for invading the powers reserved to the states with regard to marijuana and Donald Trump for tax policies that invade state sovereignty and for his push to raise the minimum age for purchasing tobacco products when the Constitution does not hint at such powers. Republicans seem not to want to understand that if the federal government actually needs such powers, the Constitution provides a remedy in Article V, not Article III (or Trump's mythical Article XII). We see this also in Trump's impeachment trial, in which Democrats argue the text of the Constitution and the original intent of the framers, while Republicans appeal to results-oriented jurisprudence.
Everything is unconstitutional!
Some things not found in the Constitution we'd have to live without:
- Social Security
- Political parties, primaries, and caucuses
- The Air Force and the Space Force
- The FDA and EPA
- The Louisiana Purchase
- A federally determined minimum age for buying tobacco products
Tenthers say the darn'dest things
Politicians embracing Tenther arguments:
- Joe Miller: Unemployment insurance is unconstitutional
- Sharron Angle: The UN is unconstitutional
- Mike Lee: Child labor laws are unconstitutional
- The GOP's Pledge to America:
“”We pledge to honor the Constitution as constructed by its framers and honor the original intent of those precepts that have been consistently ignored – particularly the Tenth Amendment, which grants that all 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.
A number of candidates stood on a States' Rights ticket in the mid 20th century, with limited electoral success.
T. Coleman Andrews
Andrews was an accountant from Richmond, Virginia who during World War II had served in the Marine Corps — as an accountant. In the 1956 presidential election, he came 3rd with 107,929 votes. His running mate was Thomas H. Werdel. Andrews later led the American Independent Party, which backed George Wallace's presidential candidacy. Yet, Andrews was still almost respectable compared to his successors.
Orval Faubus stood in 1960, but polled only 44,984, coming behind the Socialist Labor and Prohibition candidates. His running mate was the white supremacist John G. Crommelin. Faubus was a governor of Arkansas most famous for calling out the National Guard to oppose desegregation of schools in Little Rock.
The 1964 States' Rights candidate was a Ku Klux Klan member who had opposed school desegregation in Tennessee. He was even less successful, with 6,953 votes; by then it was the era of Barry Goldwater and the New Right.
- Commerce Clause
- Argumentum ad populum
- Dred Scott
- Southern strategy
- Tenth Amendment
- Wickard v. Filburn
- While some countries, particularly Australia (in part), Brazil, Germany, and Mexico, refer to their highest-level divisions as "states", this doesn't always mean they share the same system. Interestingly, however, with "devolved" governments in Scotland, Wales, and Northern Ireland, the United Kingdom might be heading towards a similar system.
- Or the 'Doctrine of Enumerated powers'
- Or the 'Enfranchisement of the Negro' clauses.
- Unless you're Ron Paul
- Unless of course, we're discussing marijuana.
- The main difference was that Democrats generally supported free trade while Republicans favored more protectionist policies. On almost every other issue however, the same party could take diametrically opposed positions from one election to another.
- After all, they would get to control some of the contracting and patronage hiring that went along with the increased federal activity.
- Ironically, "states' rights" was also invoked as an argument against the fugitive slave laws. See States' Rights and the Fugitive Slave Law at the Library of Congress, and PBS' analysis of Prigg v. Pennsylvania.
- The Tenth Amendment Center is probably the largest organization promoting this.
- T. Coleman Andrews
- Obituaries: T. C. Andrews Jr., 64, Political Organizer, New York Times, April 20, 1989
- John G. Crommelin
- Orval Faubus
- John Kasper