States' Rights Rise Again
The Rehnquist Court has revived Ronald Reagan's attempts to gut the New
Deal, Great Society and civil rights laws enacted to help the have-nots
of American society. Its weapon of choice has been the states' rights
doctrine. Just as during the New Deal, when this doctrine was also
invoked against the expansion of federal power that was used in the
interests of ordinary people, the Rehnquist Court's seemingly neutral
states' rights rhetoric and argumentation have been a fig leaf to cover
up more tangible interests like race and money.
Also by the Author
Citizens United and Bush v. Gore don't stand alone. A decade worth of Supreme Court decisions has tiled the electoral playing field toward the Republicans.
3 comments
How a mere "procedural" decision blatantly shortchanges justice.
This is not new. Throughout our history, states' rights rhetoric has
been used for regressive causes. It has been an especially favored
strategy since the Civil War, because the two great transfers of power
to the federal government at the expense of the states, at which this
strategy has been aimed--the post-Civil War amendments and the New
Deal--have also been reform movements threatening conservatives with
respect to race and class.
The anti-Washington leader on the Court is Chief Justice William
Rehnquist. Raised in a Roosevelt-hating family, he has been an
archconservative since his earliest days. His first opportunity to
strike at federal power came in 1976 in National League of Cities v.
Usery, a case involving the 1974 amendments to the Fair Labor
Standards Act, which extended minimum-wage and maximum-hours
requirements to state and local governments. Cobbling together a 5-to-4
majority, he got the Court to strike down the 1974 extension.
For authority, Rehnquist looked to the Tenth Amendment, which provides
that "the powers not delegated to the United States by the
Constitution...are reserved to the states." The amendment does not,
however, specify what is "reserved," so Rehnquist created a new doctrine
based on the "policy" of the Tenth Amendment, which he said authorized
the courts to prohibit the federal government from regulating the
states' "traditional functions" if doing so "impaired their sovereignty"
and "their ability to function effectively in a federal system."
The result was judicial confusion, as courts struggled with these
vacuous criteria. After nine years, the Court overruled National
League of Cities, but in 1990 the tide turned again. Avoiding
constitutional issues, a 5-to-4 majority in Gregory v. Ashcroft
interpreted a federal law banning age discrimination as not applying
to state judges.
After Clarence Thomas joined Anthony Kennedy, Sandra Day O'Connor and
Antonin Scalia on the Court in 1991, cementing the conservative
majority, the constitutional assault on federal power went into high
gear. The first target was a radioactive-waste-disposal statute, which
was based on a compromise that the states themselves, including New
York, had hammered out. The act imposed sanctions on those states that
didn't implement the statute, and for this reason, the majority struck
it down in New York v. United States (1992). Unable to rely on
specific language in the Constitution, the majority used its own
conception of the constitutional "framework" and "structure," and
condemned the act for "commandeering" state officials to implement it,
ignoring in the process numerous historical examples of state
implementation of federal laws. "Accountability is...diminished" by such
state enforcement, said Justice O'Connor for the Court, arguing that
state officers who had to implement burdensome federal directives would
be blamed for them. The argument is ludicrous--people in the
radioactive-waste business knew the rules were set by the Feds. The
Court used the same dubious "accountability" reasoning five years later
in Printz v. United States to slap down the Brady gun control
bill's requirement that local law enforcement officers check the
backgrounds of prospective gun purchasers.
The hollowness of the conservatives' concern for states' rights was
revealed in the New York v. United States decision. The
radioactive-waste law had been promoted by the states themselves. But
Justice O'Connor rationalized that the anticommandeering principle was
not for the benefit of the states but to preserve "the liberties" of the
people; the states' consent to the law was irrelevant. But how are the
people's "liberties" protected when the wishes of their elected
representatives are ignored? And is not accountability diminished if
those representatives cannot act as they believe their constituents
want?
The conservative majority's fickleness toward state interests is not a
rare phenomenon. They have had no trouble striking down hundreds of
state and local affirmative action plans, voluntary desegregation plans
and electoral districting plans that created majority-black districts.
And they haven't hesitated to strike down zoning and environmental laws
in the name of property rights.
Four years after New York v. United States was decided, the
trickle of antifederal decisions became a flood. It began with an attack
on the commerce clause, the source of federal power over the national
economy. Recognizing the interrelatedness of almost all parts of the
economy, the Court had upheld every assertion of federal power under the
commerce clause since 1937. In 1995 that changed. In Lopez v. United
States the usual 5-to-4 majority struck down a federal law
criminalizing the possession of guns in a school zone, because no
economic transaction was involved and there was no Congressional finding
of an effect on interstate trade. The obvious impact of school violence
on the national economy was dismissed, and the fact that most guns move
in interstate trade was ignored. Four years later, in United States
v. Morrison, the same 5-to-4 majority used the same argument to
strike down the Violence Against Women Act: It was not an "economic"
matter, even though there was "a mountain of data" that violence against
women costs the economy billions each year. Nor did the Court give any
weight to the overwhelming state support for the act.
In 1996 the Court also resurrected a state sovereign-immunity doctrine
that had been repudiated just seven years earlier. The Eleventh
Amendment denies federal courts jurisdiction over suits by citizens of
one state against another state. Over the next four years, the
conservative bloc used this doctrine, which is based on the now
discredited "the King can do no wrong" philosophy, as the basis for
allowing a state to halt damage suits against itself by any person, even
in state courts, and even if the state engages in what is ordinarily
private business that wrongly damages someone. Nothing in the language
of the Constitution creates such an immunity, and certainly not for
federally created rights. That did not faze these Justices, however, all
of whom have regularly excoriated liberal judges as "activists" when the
latter sought to promote individual rights and did not stick closely to
the text.
The next year, the conservatives turned to the Civil War Amendments.
Section 5 of the Fourteenth Amendment authorizes Congress to enforce
that amendment by appropriate means. In 1990 the Court narrowly adopted
a Scalia opinion overturning a twenty-seven-year-old doctrine by which
religious minorities were exempt from having to comply with unnecessary
burdens that interfered significantly with their worship (Employment
Division v. Smith). Congress responded by almost unanimously passing
the Religious Freedom Restoration Act (RFRA) to reinstate that
possibility.
It didn't last long. In a 6-to-3 decision, the Court ruled that Congress
had no power to enlarge constitutional rights beyond the limits the
Court had set. RFRA failed as a remedy, according to the Court, because
it burdened too many state activities too much--even though the states
had lived comfortably for over a quarter-century with the doctrine RFRA
sought to reinstate.
This past term, the conservative majority struck twice at Section 5,
once in dismissing a suit by older workers under the Age Discrimination
in Employment Act (Kimel v. Florida Board of Regents) and again
in the course of overturning the Violence Against Women Act, despite
support for the act from thirty-six states. This coming term the Court
will consider suits by state employees against a state for violating
disability rights statutes; their prospects are bleak.
There have been a few isolated losses for the states' rights bloc:
Kennedy jumped ship to make a 5-to-4 majority to strike down a state
term-limits law, and this past term the Court upheld a law banning the
sale by states of private data collected from driver's-license
applications. But such decisions have been few and far between.
Academic commentators disagree on how harmful the conservatives'
federalism rulings have been. They have unquestionably spawned confusion
and litigation over federalism issues, thereby overburdening a federal
judiciary that is already creaking under the weight of its caseload. And
a good number of Americans--how many is impossible to tell--have been
denied a meaningful remedy for blatant violations of their rights under
federal law.
One thing is clear: All of US history demonstrates unambiguously that
have-nots and outsiders fare poorly at the state level. The Rehnquist
Court's paeans of praise for state government are belied by reality.
Voting turnout in state and local elections is notoriously low. Many
state legislators are ill-paid part-timers without staff, and are at
least as susceptible to lobbyists as Congress, if not more so. Conflicts
of interest are rife--one recent study found that one-fifth of state
legislators serve on legislative committees that oversee their private
businesses. And concern for the poor, the weak and people of color is
often negligible or nonexistent.
If the current federalist assault on the federal government
continues--and if George W. Bush becomes President it will--those
already shortchanged by our society will do even worse.
Subscriber Log In:
Subscribe Now!
The only way to read this article and the full contents of each week's issue of The Nation online is by subscribing to the magazine. Subscribe now and read this article—and every article published since for the past five years—right now.
There's no obligation—try The Nation for four weeks free.
If you like this article, consider making a donation.
Reprint this article. Click here for rights and information.
