Steven Conn: The Fetish of States' Rights

Steven Conn, editor of To Promote the General Welfare: The Case for Big Government (Oxford University Press USA/2012), is professor and director of Public History at Ohio State University.

Ronald Reagan kicked off his presidential campaign in 1980 with a speech in Philadelphia, Mississippi. It's worth remembering, especially in light of several recent events, why that was so important.

Philadelphia was a small sleepy town like dozens of others in the South, brutally segregated according to Mississippi law and customs, just like dozens of others. It became nationally famous -- and symbolic -- when three civil rights workers doing advance work for Mississippi Freedom Summer in 1964 were murdered by some of the local white supremacists. They instantly became martyrs to a heroic cause.

Sixteen years later, candidate Reagan didn't mention James Cheney, Andrew Goodman or Michael Schwerner in his speech. Instead, Reagan announced: "I believe in states' rights," and he promised the all-white Mississippi crowd that he would "restore to states and local governments the power that properly belongs to them."

Commentators then and now saw this as a shameless race-baiting appeal to white Southern voters. It surely was, and it foreshadowed the contempt President Reagan would have for civil rights and for black America altogether. But the racially divisive aspect of his speech has not proved to be its most important legacy.

One half of the Reagan revolution was economic: a set of policies -- called "supply side" or "trickle down" -- which proved remarkably successful at shifting income and wealth from the middle class to the already wealthy and increasing the national debt by a whopping 180 percent. They failed, of course, to deliver on the promise of balanced budgets and widely-spread prosperity.

The other half, however, was built into that rallying cry for "states' rights." With it, Reagan hoped to move the consideration of a whole host of social issues out of Washington and back to the 50 state capitals. In this, he was also remarkably successful.

Calling for "states' rights" is a venerable tradition in American politics. The founders, its enthusiasts insist, established our system of federalism giving the states broad powers in order to protect citizens from the threat of an over-bearing central government. That's what the 10th amendment is all about.

At a more logistical level, in a sparsely populated but geographically far-flung new nation, empowered state governments were better positioned to respond to the needs and demands of citizens. Democracy brought closer to the people.

That second rationale has largely disappeared with modernization and technology. Our economy is no longer local, but rather connected to national (and international) networks and systems; we communicate instantly with people from coast to coast and everywhere in between, and we are a highly mobile society of people moving frequently from one state to another. And yet each time we do so, we have to go to another DMV office and stand in another line in order to be cleared to drive the car that brought you to this state. The logistics of states' rights have perhaps outlived their usefulness.

That first rationale, however, deserves our skepticism just as much. States' rights masquerades as high constitutional principle when in effect it has largely been a political tactic invoked when particular vested interests feel threatened by the tide of history. This was certainly the case for the Southern segregationists in the 1950s and '60s who justified their creation and support of American apartheid by calling it states' rights. A generation earlier, Southern politicians held much of FDR's New Deal hostage unless he promised to give them local control over federal money. This way they could keep African Americans from benefiting from New Deal programs. Call it situational states' rights.

And 150 years ago, the ancestors of those same Southerners seceded from the Union and precipitated the Civil War. Make no mistake about it: the North did not go to war to end slavery, at least not initially, but the South fought that war to defend their "sacred institution." And they called it a defense of the principle of "states' rights."

Since Reagan revived the states' rights rebel yell, it has been used first and foremost as a rationale to deny women access to abortion and family planning more broadly. A series of Supreme Court decisions beginning in the mid-1960s and culminating with Roe v. Wade took the right to regulate our sexuality away from the states. With Ronald Reagan's ascension, conservative state legislatures took it back. Which brings us most recently to Little Rock, Arkansas, where a troglodytic Republican state legislature just overturned Governor Mike Bebee's veto of yet another draconian restriction on abortion.

Likewise, the basic rights and protections of gay Americans have been cast as a "states' rights" issue, thus saddling us with the bizarre and untenable set of laws we have now. A gay couple married in New York, say, will not have that marriage recognized -- and all that comes with that recognition -- in, say, Ohio, which passed an amendment banning same-sex marriage in 2004.

Nor are we ever going to have a sensible national approach to gun control when we are forced to have 50 different approaches to guns. Colorado can pass a set of perfectly reasonable gun restrictions even while South Dakota passes a law arming employees in public schools.

Back at the Supreme Court, right-wing justices seem poised to overturn key aspects of the 1965 Voting Rights Act essentially because they feel it is an insult to "states' rights" -- they hinted that perhaps the law had served its purpose and now only constitutes an onerous burden placed on states by the federal government. Supporters of the Act have pointed to all kinds of ways in which voting rights in those places still need to be protected.

No one, apparently, asked this question: why on earth should the right to vote -- the basic right of our national citizenship -- differ from state to state? What justifies 50 different versions of access to the voting booth?

Perhaps it is time to acknowledge that our current system of federalism is an 18th century anachronism at best, at worst a constitutional ploy that has historically enabled the majority to tyrannize minorities, the powerful to impose their will on others. When you hear politicians or judges blow the states' rights trumpet, something retrograde is probably going to happen.