States’ Rights in Our Participatory Democracy

States’ Rights in Our Participatory Democracy

States’ Rights in Our Participatory Democracy

States’ rights is a constitutional, not political, issue; it can cut, ideologically, both ways.


Recently, conservative Americans have re-elevated "States’ rights" to holy-grail status in politics, often as justification for badmouthing President Obama and the Democratic 111th Congress. Yet states’ rights is a constitutional, not political, issue, and the idea of a balance of power between the federal and state governments is neither conservative nor liberal at heart. It pertains to the theoretical process and function of government, not to the substantive, individual acts of governance themselves.

Take the insidious Fugitive Slave Law of 1850, which allowed the federal government to override local autonomy, even in the North, to help Southerners capture escaped slaves. Northerners decried the law as a breach of states’ rights; it effectively extended slavery into supposedly free states. But Southerners, who relied on a states’ rights argument to preserve slavery, took the opposite tack in this case and embraced the federal government–Washington’s power was needed to enforce the law and maintain the Peculiar Institution. As historian (and Nation editorial board member) Eric Foner points out, "…[I]t’s a very odd thing that a region, the South, which supposedly believed in states’ rights and local autonomy, pressed for this law which allowed the federal government to completely override the legal processes in the North: to send marshals in, to avoid the local courts, and to just seize people (they might be free born) and just drag them into the South as slaves. It shows that the South didn’t believe in states’ rights. It believed in slavery. States’ rights was a defense of slavery. But when active federal power was needed to defend slavery, they were perfectly happy to utilize that also." Where states’ rights is concerned, then, real-world politics can always be counted on to trump theoretical political science.

To wit, President Andrew Jackson saw states’ rights not as a pie thrown in Washington’s face, but rather as a contract between federal and state governments. At his second inaugural in 1833, Jackson declared, "…[M]y countrymen will ever find me ready to exercise my constitutional powers in arresting measures which may directly or indirectly encroach upon the rights of the States or tend to consolidate all political power in the General Government. But of equal, and, indeed, of incalculable, importance is the union of these States, and the sacred duty of all to contribute to its preservation by a liberal support of the General Government in the exercise of its just powers."

It is important to remember that the term "states’ rights" is not necessarily a badly veiled euphemism for institutional racism. Unfortunately, though, it has been continuously used as a rallying cry for bigots whenever they have a problem with a progressive federal law. As Chip Ward assesses at TomDispatch, "Asserting state rights is not simply a way of pursuing regional independence and expressing differences, it is a means of avoiding and undermining the national consensus on any number of important issues."

Of course, there are indeed policies and issues better dealt with in state capitals than in Washington, and the eternal, unanswerable question has always been how to differentiate between the two, but Tea-partiers and gun-rights advocates have invoked the state’s rights argument to condemn President Obama for running roughshod over their perceived sovereignty. And this November, California voters will vote on a ballot measure that will allow citizens to possess up to one ounce of marijuana for personal use; should the measure pass, Californians will also be able to cultivate their own twenty-five-square foot pot patch. Ultimately, though, the notion of states’ rights is far more complicated in theory than it is in practice; at the end of the day, individual policies themselves are more relevant to the functioning of society than the philosophical font whence those policies derive their authority. When the Patient Protection and Affordable Care Act finally brings coverage to a long-uninsured citizen, he’s not going to scrutinize his policy to determine whether his health care has been underwritten in Washington, or Topeka, or Olympia.

America is a participatory democracy; those with a beef or an issue are free to take it up, make a cause out of it, and petition citizens and the government for change or redress. Progressive and positive policies, then, should stand and be pursued on their own merits, regardless of whether they receive federal, state, or municipal backing. Gun-rights advocates, for example, cite the Bill of Rights as the cornerstone of their movement, but the recent surge of state-level "Firearms Freedom" Acts demonstrates that even for Second Amendment hawks, it doesn’t matter who says that they can keep their weapons, only that someone agrees that they can.

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