January 05, 2018

There Is No “Party of States’ Rights”

Not on slavery. Not on gay marriage. Not on gun control. Not on marijuana.

by Chris Thomas

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Photo by Esteban Lopez

American politicians love the idea of “state’s rights.” It’s a tried-and-true line of argument about standing up for the little guy that has been used by politicians of every stripe on issues from slavery to marijuana legalization. The issue is so old that even Chief Justice John Marshall got in on the action, writing in McCulloch v Maryland, “the Constitution and the laws made in pursuance thereof are supreme… they control the Constitution and laws of the respective states, and cannot be controlled by them.”

Marshall’s decision marks the beginning of the conflict between states’ rights and constitutional supremacy or at least the formalization of the dispute. The Constitution is the “supreme law of the land” and, Marshall argues, the laws made by Congress under its authority necessarily over-write whatever the states might decide. But the 10th Amendment 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.”

There is conflict here, especially when we think about these two statements in the context of a third, buried at the bottom of Article I of the United States’ Constitution (A1S8C18):

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.

So, which is it? Can Congress write pretty much any law it wants and over-rule the states on any issue? Or do the states have, as the 10th Amendment would suggest, ultimate authority on the issues not delegated to the federal government?

A Political Tool

Wars — literal wars — have been fought over this question. There’s a reason that the torch-wielding Nazis and their white-robed BFFs like to claim that the Civil War was fought over the issue of States’ Rights. It was. The states’ rights to preserve slavery, but states’ rights nonetheless. States’ Rights was a political tool of the conflict and slavery the moral issue to be decided.

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Pictured: Overthrowing the tyranny of the federal government

Since then, the issue of State’s Rights and the issue of Federal Supremacy have expanded to nearly every walk of American life. The issue was raised again and again over questions of segregation, voter identification, highway speed limits, the drinking age, and most recently firearms and marijuana.

No Party of States’ Rights

Since roundabout the 1960s when “States’ Rights” became the rallying cry of the white southerners who flocked to the GOP in protest of the Civil Rights Act, the GOP has branded itself as the party of states’ rights. And, certainly, when it came to issues like discrimination against black people, latino people, gay people, women, etc they were… and are. The party usually couches these issues in terms of “free speech” or “religious liberty” or “preserving our heritage” but the underlying message is the same: the federal government has no business telling state or local governments how their communities should be run.

Unless, of course, those states and localities are running things in a way that Republicans disagree with. Then the “states’ rights” language flies out the window.

This has happened on three notable issues in recent years:

  1. The application of the 2nd Amendment to state and local governments (“Incorporation” in Constitutional Law) in McDonald v Chicago
  2. The sudden obsession with “sanctuary cities” and Washington’s insistence upon cooperation with federal immigration authorities
  3. The recent statements by Attorney General Jeff Sessions indicating that the DOJ will once-again enforce marijuana prohibition.

Of course, the inverse might well be claimed of the Democrats, who dismissed the state’s rights argument on civil rights issues but are now eager to pick it up as state gun-control provisions, immigration policies, and marijuana legalization deals are under assault by the Trump administration.

The Real Divide

All of which is to suggest that there is not and never has been a “party of states’ rights.” There are merely parties with political objectives — differing viewpoints, not on the scope of federal power nor even on the ways that power should be used but on the goals it should be used to accomplish.

And just as there is no party of states’ rights there is, by logical extension, no party of small government. The debate in American politics is not about how large government ought to be but which spaces it ought to occupy, what wrongs it should attempt to redress, and who should pay to accomplish these things.

Because to shrink government, to relinquish power to the states, our Senators, Representatives, and President must do something few politicians in history have every marshalled the will to accomplish.

They must give up power.

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