Following Vice President Al Gore's concession, President-elect Bush announced: "I was not elected to serve one party, but to serve one nation. The President of the United States is the President of every single American, of every race and every background." It was an appropriate speech delivered from the Democratic-controlled Texas House chambers. Referring to the Texas House as "a home to bipartisan cooperation," Bush added, "Republicans and Democrats have worked together to do what is right for the people we represent."
But who are George Bush's bipartisan Democrats?
Texas State Representative Paul Sadler, a Democrat, told the New York Times that Bush "didn't invent bipartisanship in Texas." It "kind of developed over the years because of the nature of the system." Nature of the system? What system? Essentially it is the same "system" around which the rest of the Southern Democratic Party developed.
The Southern Democratic Party was the party of slavery. Conservative Democrats were the Confederates during the Civil War. Democrats either were, or cooperated with, the KKK in resisting Reconstruction. Following Plessy v. Ferguson (1896), conservative Democrats practiced Jim Crow--separate and unequal. And after Brown v. Board of Education (1954), conservative Southern Democrats were the prime resisters of desegregation.
After Brown and the civil rights evolution of the 1960s, and the application of Goldwater's 1964 and Nixon's 1968 "Southern strategy," Southern white males especially began to leave the national Democratic Party in significant numbers. Republicans began to appeal to them with a series of racial themes and code words: "conservatism" during the civil rights struggles in 1964, "law and order" after the riots of 1967-68, "antibusing" in 1972, "welfare queen" in 1980, "Willie Horton" in 1988 and "compassionate conservatism" in 2000. Democrats also played this game: Carter's "ethnic purity" misstep in 1976 almost got him into serious trouble with the party's base; Bill Clinton used "Sister Souljah," and Al Gore emphasized crime ("blanket America in blue")--Democratic Southerners all. And all, Republicans and Democrats alike, are from the same system. Clinton redefined the Democratic Party away from the "special interests" of blacks--symbolized by Jesse L. Jackson Sr.--by politically manipulating a rapper. Because of Jackson's tireless pursuit of racial justice, and because he's a strong and highly visible Democrat, Republicans are now attempting to define and identify him as the symbol of the Democratic Party.
Taking a page from ultraconservative Ronald Reagan--who often referred favorably to the liberal FDR--Bush quoted the ideological founder of the Democratic Party, Thomas Jefferson. But Jefferson, a Virginian, was also the author of a Kentucky resolution and conservative theory of Southern resistance called "nullification," and his Democratic partner, James Madison, developed the theory of "interposition." Both concepts were forms of Southern resistance--first, resistance to ending slavery, and later to ending Jim Crow segregation. Jefferson also provided the ideological foundation for the concept of "local control"--the stepchild of "states' rights." Bull Connor, Jim Clark, Lester Maddox, Orval Faubus and George Wallace were all the products of this "system" and were Democratic advocates of states' rights, local control and an antifederal ideology of less government, lower taxes and a strong military.
It is this legacy of conservative Southern Democrats that created the "bipartisan system" that State Representative Paul Sadler referred to. It is this legacy of conservative Southern Democrats in Congress with which President-elect Bush intends to work. But the President-elect's problem of governing all of the people cannot be satisfied merely by building bridges to essentially conservative Southern Blue Dog, Yellow Dog, New Dog or DLC Dog Democrats. These conservative dogs already support him. His problem will be in reaching out and building bridges to liberals and progressives who feel like they've been treated like dogs, who represent the dogs who have been left out in the cold and put in the doghouse by a bipartisan coalition of conservative Republicans and Democrats. Indeed, this is the bipartisan pack that consistently bites us.
This conservative bipartisan coalition is generally for denying a woman's right to choose, supports charitable choice and violates the Constitution's mandate of church and state separation by attempting to put parochial prayers and the Ten Commandments in public schools. Out of this bipartisan "system" comes the privatization movement--public vouchers for private schools, privatizing all or part of Social Security, privatizing healthcare through medical savings accounts and much more.
It is this conservative bipartisan coalition that allows Ralph Nader to say that we have one corporate party with two different names. If Democrats go down this bipartisan path it will only strengthen Nader and the Greens for 2002 and 2004. The move down that path has already been aided by Democrats: In 1992 a conservative Democrat, Bill Clinton, selected an even more conservative running mate, Al Gore, who in 2000 selected an even more conservative running mate, Joseph Lieberman. By helping to shift the Democratic Party and the country further right, a very conservative George W. Bush could select an ultraconservative Dick Cheney as his running mate--and win.
The heart and soul of this conservative bipartisan coalition is the South, though by no means do all white Southerners regard themselves as part of it. Most Southern Democratic elected officials would be Republicans above the Mason-Dixon line, and Republican Senator Olympia Snowe of Maine, for example, could not be elected south of the Mason-Dixon line in either party. She would be seen as too liberal, and her views would be considered traitorous to Southern heritage, traditions and values.
More than half of all African-Americans still live in the former Confederacy, and nationally they voted 92 percent for Gore. Yet the entire body of Democratic leadership in the House and Senate are all white men. While Bush got only 8 percent of the African-American vote, Democrats have no visible elected African-American Congressional leaders who compare to the Republican exceptions of Colin Powell, Condoleezza Rice or Representative J.C. Watts of Oklahoma.
This system is what President Lyndon Johnson understood on August 6, 1965, when he signed the Voting Rights Act and afterward said privately that national Democrats had probably lost the South for at least a quarter-century. He understood the system that produced Southern politics and the bipartisan white coalition that drove it. His insight has now come home to roost big-time in the 2000 election. Bush won the old Confederacy and the rural states of the West, which have a similar political philosophy--plus Indiana, Ohio and New Hampshire. Gore won the old Union states of the North and Northeast, plus New Mexico, California, Oregon and Washington, which are more in harmony with national Democratic policies.
This system of bipartisan cooperation, social and economic conservatism, and individualistic, personalistic and pietistic religion is rooted in a region that imposes the highest number of death penalties and has the highest crime in the country, the poorest schools, the worst healthcare and housing, the greatest environmental degradation and the greatest poverty--and this conservative Southern system sustains it and is increasingly leading and influencing the nation. As State Representative Garnet Coleman, a Houston Democrat, said, "Even if something is bipartisan, it still often doesn't solve the problems of certain groups of people in Texas. They would be people who don't have health insurance, working families, the vulnerable in our society."
The South, and America, need a progressive bipartisan economic coalition to fight for better jobs and job training, healthcare, affordable housing and a good educational system--for all Americans. However, that is not the agenda of Bush and his Democrats.
Whoever wins the legal battles over the election, and with them the presidency, recent events will cast a long shadow over American political life in the years ahead. For the first week and a half, the behavior of the two parties did not differ much. Both were playing legal hardball while pretending to act on a basis of high principle. Principles are general rules that are supposed to guide conduct in each case as it arises. Vice President Al Gore and Governor George Bush were doing it the other way around: Their conduct in each case was guiding their choice of principles. Often, this comically required throwing out yesterday's principle in favor of its opposite today. For instance, not twenty-four hours after Bush's strategist-in-chief, former Secretary of State James Baker, had delivered a public sermon on the need to avoid legal action in order to reach "closure" in the election, he was filing a federal case to overturn Florida's election laws. Gore meanwhile was lecturing the country on the importance of counting every vote while fighting to exclude absentee ballots, known to favor Bush. Quite missing on either side was any instance of action taken against self-interest in the name of principle, which is to say any principled act. None of this, however, was perhaps very surprising. The candidates were merely behaving the way lawyers always do in courtrooms. Each was pressing his side's interest to the utmost in the hope of influencing the decisions of the judges.
The tone abruptly changed on the Republican side with the decision by the Florida Supreme Court to permit the recounts of counties that had been sought by Gore. For the first time since election night, the GOP was faced with the prospect of losing the election. Its response was to make an incendiary accusation: that Gore was engaged in a "theft" of the election, as the House majority whip, the impeachment zealot Tom DeLay, put it. The charge was accompanied by a campaign to delegitimize the Florida Supreme Court. In a remarkable statement of defiance, Baker declared the Florida decision "unacceptable," and Bush charged that what the court had done was to "usurp" the powers of the Florida legislature and executive.
Of course, if Gore had been stealing the election, it would have been the obligation of the Bush campaign as well as any other responsible person, Republican, Democrat or other, to point this out and vigorously protest it. In fact, the charge was baseless. The point is not that the particulars of the Republican allegations--that the Florida court had overreached its authority, that Democratic officials were changing the rules for counting votes midstream, that the Gore campaign was demanding multiple recounts--were false (some had merit, some did not--just as some of the Gore campaign's charges against the Bush campaign's legal maneuvering had merit and some did not); it was that even if all the charges were true they did not come anywhere near to justifying the sensational conclusion that Gore was "stealing" an election. To steal an election, after all, would be a crime. If the accusation were true, Gore should not only lose the election; he should be thrown in jail. The fact that a false and defamatory charge of this magnitude--a big lie, if there ever was one--was made by the campaign of a man who may soon be President itself severely damages the political system. For to the extent that people believe it, they must believe that American democracy is a sham, and the American political system is exactly as strong as the support it gets from the American people, and no more.
The campaign of accusation and vilification, moreover, had an evident purpose: to justify extraordinary recourses contemplated by the Bush campaign. One was the step of inviting the Republican-dominated Florida state legislature to ignore the election result and itself appoint electors. Baker solicited this action in the press conference in which he called the Florida decision unacceptable. Another was a challenge to the results by Congress. News reports suddenly appeared that DeLay was "studying" this option. Either option would have guaranteed a full-scale constitutional crisis. In short, by charging that Gore was stealing the election, the Republicans had laid the ground for the eruption of a self-created political Vesuvius in the event that the recounts placed Gore in the lead.
Of course, things didn't work out that way. Gore did not catch up, and Vesuvius stayed quiet. It is important to reflect on how this happened. The answer is that Miami-Dade County, where the beginnings of a recount had strongly suggested that its completion would give Gore the lead in Florida, abruptly called it off. On the morning of the Wednesday before Thanksgiving, the board of canvassers decided that in the interest of time it would count only those ballots that had gone uncounted by the voting machines. In the afternoon, they decided to cancel even that smaller recount. It was the decisive moment. In all likelihood, it cost Gore the certification and, perhaps, the election. In the interval between the decision to do a partial recount and the decision to cancel it, there was a minor Republican riot inside and outside the county building. When the canvassing board moved to a new room that made observation more difficult, GOP Representative John Sweeney of New York ordered, "Shut it down!" and, in the words of Wall Street Journal columnist Paul Gigot, who witnessed the scene, "semi-spontaneous combustion took over." Republican observers of the election pounded on doors and walls. Democratic observers trying to give interviews to the press were shouted down. Television cameramen were punched. A Democratic counter falsely accused of stealing a ballot had to be given police protection. A canvasser told Bill Redeker of ABC News right after the demonstrations that he had been "convinced that what we were doing was perceived as not being fair and open." Approached by reporters, the demonstrators strangely would not give their names. We now know that many of them were Republican House staffers, organized by the very Tom DeLay who had said the election was being stolen. Others were operatives of the Bush campaign. It was not Vesuvius; it was a taste of lava from a small crack that had been opened in the volcano. But it may have been enough to deny Gore the White House. Gigot commented, "If it is possible to have a bourgeois riot, it happened here Wednesday. And it could end up saving the presidency for George W. Bush." It is, indeed, possible to have a bourgeois riot. Without suggesting any historical equivalence, let us recall that Mussolini, Hitler and supporters of Pinochet, among others, managed to do it.
Intimidation was in the air. That George Bush--he who was going to stop the "bickering in Washington" but has waged political war in Florida--countenanced the result is especially discouraging. It dims to the vanishing point any hope that if elected he would be willing or able to rein in the firebrands of his party. Meanwhile, Bush's announcement that he will begin a transition with private funds is merely the same medicine in more palatable form. The message is unchanged: We are entitled to rule; give us what we want--or else. The riot in the county building was a sample of what the Republicans had in mind. The threats to precipitate a constitutional crisis were others. For now, the Republicans have been placated. Bush won his certification, and has crowned himself President-elect. But the threat has not been withdrawn and will probably be carried out if the legal cases turn in Gore's favor. Vesuvius has not been dismantled. It is being held in reserve for further use in the unfolding election crisis, or thereafter.
Ralph Nader's Green Party campaign for the presidency has evolved
into a dangerous game. On one hand, the candidate insists it doesn't
matter if George W. Bush beats Al Gore. Yet we also are assured that
Nader doesn't pull votes from Gore in closely contested states. Both
positions are patently false.
With very few exceptions, most states are up for grabs, including
California, where the once huge gap between Bush and Gore has narrowed.
Nader now is poised to cost Gore an electoral majority. There is no
comparable threat to siphon conservative voters from Bush by the
floundering Reform Party campaign of Pat Buchanan.
Nader's supporters are potential Gore, not Bush, voters. "The Nader
campaign talks about its appeal to disaffected [John] McCain, [Jesse]
Ventura and [Ross] Perot voters, but I have rarely met one at a Nader
rally," says reporter Matt Welsh, who has been covering the Nader
campaign for the online journal http://www.newsforchange.com. Welsh
added: "The biggest applause lines are those that appeal to the
progressive wing of the Democratic Party."
Those Nader supporters have an obligation to vote for Gore because a
Republican sweep of the White House and Congress would spell disaster for
environmental protection and for efforts to increase the minimum wage and
the earned income tax credit, not to mention the hard-won gains made by
women and minorities. Nader knows better than anyone that there has been
a huge difference between the Clinton Administration and the Republican
Congress on those issues.
Nor should Nader be downplaying the consequences for the Supreme Court
if Bush is elected. On the campaign trail, he muddies the issue by
observing that some Republican Presidents have appointed moderates to the
Court, ignoring Bush's pledge to Pat Robertson and the rest of the GOP's
right wing that he would name judges in the mold of Antonin Scalia and
Clarence Thomas. As it is, the Court in the past five years has struck
down twenty-five progressive laws that Clinton managed to get through Congress,
including parts of the Brady gun control bill and the Violence Against
That is why leading progressives like Sen. Paul D. Wellstone
(D-Minn.), Jesse Jackson and Gloria Steinem have taken to the hustings to
convince Naderites to vote for Gore. It is not their intention, or mine,
to deny Nader credit as the most consistent and effective crusader for
consumer interests in the history of this nation. It is also true that
Nader deserves thanks for raising basic issues arising from the corporate
dominance of our political process, which the major candidates have
And, yes, it does mock democracy to have denied Nader and Buchanan a
place in the debates, particularly given moderator Jim Lehrer's apparent
indifference to the role of big money in undermining representative
democracy. Let me also add that I feel betrayed by a Democratic candidate
who is so gutless as to not even utter the name of the President, whose
enormously successful administration is the source of Gore's credibility.
So Gore's not perfect--what else is new? Most often, the majority of
voters end up siding with the electable candidate who comes closest to
their political thinking. For progressives in this election, that is
clearly Gore. Certainly, Robertson and his allies on the Republican right
now justify their support of Bush as a vote for the lesser evil. They get
nervous when Bush talks about "compassionate conservatism" and plays to
the center, but they hold their noses and rally around his candidacy
because that is the best they've got.
It is time for progressive Democrats to be equally practical. Gore is
a centrist Democrat, and he will not likely do much to rein in corporate
power, pass much-needed universal health care or reverse the travesty of
welfare "reform," which will prove a disaster in the next recession.
But Gore is on record as supporting the McCain-Feingold campaign
reform measure, affirmative action and a woman's right to choose. He
would protect Social Security and Medicare from Bush's irresponsible
privatization schemes. He has an expansive view of civil rights
protection for minorities and gays. And he has as consistent a record in
support of the environment as any major politician.
Finally, from my experience interviewing Gore and observing him in
action, he is far better than his media notices. Like Clinton, but in
sharp contrast with Bush, Gore is very bright, has seriously worked the
issues and sincerely believes that an effective federal government is
necessary for the well-being of the populace.
That may not make for a green revolution, but it's a lot better deal
than a Bush White House with the doors thrown open for Trent Lott, Jesse
Helms, Pat Robertson and Charlton Heston to run amok.
Neoconservatives are serial grave-robbers. Back in the early eighties, Norman Podhoretz tried to claim both Ronald Reagan and George Orwell as part of his meshuggeneh mishpocheh. Now, say what you will about the dimwitted defender of right-wing terrorism and the scrupulously honest symbol of the Anglo-American democratic left, they do not belong in the same political movement. Honest admirers of both men pointed out the fallacy in this transparent tactic, but two decades later, no cure has been found. Last seen in the neocons' trunk leaving the literary graveyard were the intellectual remains of the liberals' liberal, the critic Lionel Trilling.
Trilling never uttered so much as a sympathetic syllable about the neocon/Reaganite worldview to which his would-be inheritors became so attached after his death in 1975. Yet there he was, sitting atop a pyramid of Reagan-worshipers--people whose politics he never endorsed and whose style of argument he abhorred--in a chart accompanying a Sam Tanenhaus-authored encomium to the neocons in the New York Times a few Saturdays ago. The trick with Trilling is really no different from that with the refashioned Orwell. (Ironically, as John Rodden notes in his 1989 study, The Politics of Literary Reputation, it was Trilling's introduction to a 1952 reissue of Homage to Catalonia that was almost singularly responsible for securing the writer's reputation in the United States as a kind of secular saint.) Both men wrote witheringly of those intellectuals who gave their hearts and minds over to Stalinism, prescribing tough-minded scrutiny in the face of emotional appeals. In a foreword to a 1974 edition of The Liberal Imagination, Trilling pointed out that his early essays were inspired by "a particular political-cultural situation" he identified as "the commitment that a large segment of the intelligentsia of the West gave to the degraded version of Marxism known as Stalinism." With Trilling safely unable to respond, the neocons twist these words in order to apply them to liberalism itself.
Podhoretz has long been critical of his ex-teacher for what he termed his "failure of nerve" that was part of "an epidemic of cowardice" he detected in anyone who failed to agree with him. Writing in The Atlantic Monthly, Nathan Glick notes that "besides being a disloyal deprecation of a former friend and mentor," these claims "have the scent of ideological self-serving. They come with particular ill grace from a writer who treats his own seven-year flirtation with the New Left as not only easily forgivable but also proof of his editorial flair for riding the tide of political fashion." In fact, as Glick points out, Trilling viewed liberalism as "a political position which affirmed the value of individual existence in all its variousness, complexity, and difficulty." Nothing, however, could be further from the neoconservatives' creed--one that has served, in the view of Leon Wieseltier, editor of a generous new collection of Trilling essays called The Moral Obligation to Be Intelligent, as "the anti-intellectualism of the intellectuals." By inventing a genealogy that goes back to Trilling, Wieseltier notes, "They enhance their intellectual self-esteem. They have this view that everyone to the right of the left is Neoconservative, or a Neoconservative who dares not speak its name."
In fact, the critics of the counterculture whose writings have held up best during the past thirty years are those who never gave themselves over to the neocon temptation--who never became apologists for Reagan and Bush, much less Pat Robertson and Jerry Falwell. Liberal and socialist anticommunists like Daniel Bell, Nathan Glazer, Irving Howe, Michael Harrington, Alfred Kazin and Garry Wills led a relatively lonely intellectual life in the eighties, as Podhoretz, Irving Kristol, Elliott Abrams and Jeane Kirkpatrick were all toasting themselves at the Reagan White House. But contrary to Tanenhaus's apologia, it is their works--together with Updike's Rabbit and Roth's Zuckerman extravaganzas--to which historians will one day turn to comprehend the combination of ignorant arrogance and small-minded self-delusion that captured both American extremes in the final decades of the twentieth century.
Another oddity of Tanenhaus's article was the news that the forever-ricocheting Michael Lind, who mimicked Podhoretz recently with his own McCarthyite tract on the Vietnam era, is writing a manifesto to try to revive the neoconservative creed he once savaged. His co-author is Ted Halstead, president of the New America Foundation. Here history repeats itself as farce. First-generation neocons hijacked liberal institutions like Commentary and Partisan Review (and, sadly, much of The New Republic) and gave them over to conservative purposes. Halstead's organization (with which I was briefly associated) now takes precious funds from progressive donors and redistributes them to the likes of the right-wing Lind and the conservative, isolationist, foreign-policy writer Robert Kaplan. Halstead has even boasted of trying to hire George W. Bush's chief speechwriter. "Fool me once, and shame on you," explained the sage engineer of the Star Ship Enterprise, Mr. Scott. "Fool me twice, and shame on me."
* * *
Babs in Toyland: The famously sensitive liberal icon Barbra Streisand recently played the first in a long series of "farewell performances" in New York and LA, gouging fans to the tune of $2,500 per ticket. The worthy cause? Another twenty million or so for the greater glory of Barbra Streisand Inc. Streisand herself destroyed the political economy of concert-going in the mid-nineties by charging in the hundreds for tickets. Today the Eagles and Billy Joel jack up prices to $1,000 apiece. The Stones routinely charge $350; the Who, $250. Both bands were a hell of a lot better in the pre-Streisandified seventies, when I saw them for about two-weeks' allowance. Yes, I know, markets, supply and demand, blah, blah, blah. But could we please put an end to the deification of multimillionaire rock stars who shake down their own fans? (Rock critics rarely make this point, because they get free tickets.)
George W. Bush has publicly cited Justices like Antonin Scalia and Clarence Thomas as the kind of "strict constructionists" he will appoint to the Supreme Court. Scalia and Thomas have long been the favorites of right-wing religious, political and legal activists eager to see the Supreme Court roll back decades of progressive rulings.
People for the American Way Foundation recently released Courting Disaster, the result of a six-month analysis of the concurring and dissenting opinions of the two Justices. It asks, "If these opinions were shared by a majority of the Court, how would that change the outcome of the Court's decisions?" The answer is chilling. If those angry dissents and minority concurring opinions were majority rulings, the result on issue after issue would be a radical, reactionary shift in US law.
Many people are worried about the Court's future rulings on reproductive rights. It's true that Justices Scalia and Thomas are eager to overturn Roe v. Wade, and they need only two more votes to do it. Maybe only one--Justice Anthony Kennedy's vote supporting the ban on so-called partial-birth abortion has been interpreted as an indication that he is having doubts about his 1992 vote reaffirming Roe v. Wade. But much more than reproductive rights is at stake.
As the contributors to this issue document, the Supreme Court is already dominated by conservative Justices who are aggressively promoting a troubling new theory of federalism and states' rights that is drastically restricting the power of Congress to protect Americans' rights and to address serious national problems. But even this conservative activist majority has frequently not been willing to go as far as Scalia and Thomas want. And that's why the prospect of a Scalia-Thomas majority on the Court is so ominous.
Here's just one example: In a 1994 voting rights case, Justices Thomas and Scalia advocated a position that, according to four of the other Justices, was so "radical" it would have meant overturning or reconsidering twenty-eight previous Supreme Court rulings that the Voting Rights Act of 1965 should be interpreted to prohibit racial discrimination in all aspects of voting.
There's much more. A Scalia-Thomas majority would exempt elections for state judges from all provisions of the Voting Rights Act, permit sex discrimination in jury selection, eliminate affirmative action, restrict remedies for discrimination while making it harder to prove discrimination in the first place and hold that improper and unnecessary institutionalization of disabled persons would no longer be considered a violation of the Americans With Disabilities Act.
Religious liberty would suffer under a Scalia-Thomas majority hostile to the principle of church-state separation. Such a Court would overturn a series of precedents protecting the rights of students to be free from religious coercion in public school settings. The floodgates would be opened to direct government funding for religious schools.
A Scalia-Thomas majority would weaken the right to strike and bargain collectively, make it easier to fire workers for political reasons and allow employers to deceive workers about the solvency of benefits plans. Scalia has ridiculed laws that protect workers from sexual harassment.
The federal government would be barred from stopping the destruction of endangered species on private land. Local governments' power to protect the environment would be restricted.
Campaign finance reform would be virtually impossible under a Scalia-Thomas Court, which would throw out any and all limits on campaign contributions and spending.
Sensible gun control legislation would be struck down.
What is at stake is the legal and constitutional framework under which the nation will operate for decades to come. Radical right leaders know they're just one election away from winning their entire political agenda, and they're mobilizing voters with the prospect of a right-wing-dominated Supreme Court. It was their vocal "no more Souters" campaign that led George W. Bush to explicitly name Scalia and Thomas as his models. And it has now been six years since the confirmation of the Court's most recent appointee, Justice Stephen Breyer. Only once in our history--177 years ago--have we gone so long between appointments.
Indeed, the future of the Supreme Court is the most important issue in the most important election year since 1932. Progressive Americans should treat it that way. The radical right does.
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.
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
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 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
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
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.
Perhaps it was because he was recovering from painful back surgery, but a few weeks before the Republican convention, Paul Weyrich, a founder of the religious right, was awful grumpy about George
Research assistance was provided by the Investigative Fund of the Nation Institute.
(A Gilbert and Sullivan Solo for George W. Bush)
Both Republican candidates battled to claim the mantle of the Gipper. John McCain calls himself "a true Reagan Republican." George W.