Oct 7, 2014

This is What Flip-Flopping on States' Rights Looks Like

by Jim Loewen

Same-sex marriage in San Francisco City Hall (Wikipedia)

Sociologist James W. Loewen is the author of Lies My Teacher Told Me.

I have long claimed that whoever controls the federal government is against states' rights. Whoever loses control of the federal government favors states' rights. For example, in The Confederate and Neo-Confederate Reader, I noted that when South Carolina left the Union, it "was not for states' rights, but against them." This was only to be expected, I observed, "because Southern planters had been in power during the Buchanan administration, indeed, throughout most of our history."

In the 1850s, when Southern planters ruled Washington, they ran rough-shod over the ability of voters in Kansas to choose to organize as a free territory and state. No "local control" if that control might be anti-slavery! They also got the United States to buy what is now southern Arizona and New Mexico (the Gadsden Purchase), hoping to make the first transcontinental railroad go west from New Orleans rather than Chicago. So much for limited federal government! They denounced New England states for letting African Americans vote, even though voter qualifications was a state matter until the Fifteenth Amendment passed during Reconstruction, two eras later. No states' right if exercising that right might violate white supremacy!

Recently, Ed Meese, longtime Republican campaign strategist, provided another graphic example of this principle. In the mid-1990s, he and most other Republicans argued for (and won passage of) the Defense of Marriage Act.1 Its purpose was to limit the ability of states to allow same-sex marriages. DOMA defined "marriage" as "only a legal union between one man and one woman" and instructed the federal government not to let states grant the "full faith and credit" usually accorded to other states' laws, when they allowed gay unions.

A decade later, during the George W. Bush administration, Meese and many other Republicans professed alarm that several states, not just Hawaii, were considering legalizing same-sex marriage. Again giving no weight to states' rights, they now tried to pass a constitutional amendment banning same-sex marriage. Had they succeeded, no state could have favored gay marriage.

Last week, Meese completed a stunning flip-flop. Fearing that the U.S. Supreme Court was about to decide that barring marriage to gays takes away a civil right (and civil rite) that should be constitutionally protected, he took to the op-ed page of the Washington Post. "The states should decide on marriage" was the title of his print article, co-authored by Ryan Anderson. In it, he now claimed that "the central legal question" is: "Who gets to determine marriage policy?" They went on to quote one of the judges who opposes same-sex marriage: "The Constitution is silent on the regulation of marriage; accordingly, that power is reserved to the States..." Shamelessly, they now asserted, "Nothing less than the future of our society, and the course of constitutional government in the United States, are at stake."

It isn't just right-wingers who flip-flop on states' rights. If the 5-4 conservative majority on the Supreme Court were to overturn Roe v. Wade next week, then those who advocate that pregnant women should have the right to choose will immediately argue that abortion should remain legal in the states that allow it. I do hope that they are a tad less hypocritical about it, but they may not be.

About secession, shortly after their defeat in 1865 some ex-Confederates, led by their former president and vice-president, started saying that they had seceded for states' rights. Despite the bald evidence of their state secession statements in 1860-61, all of which lambasted Northern states for exercising states’ rights, these revisionists won the day in the 1890s. Nevertheless, there were still a few honest former Confederates who knew better and said so. John Mosby, the Gray Ghost of the Confederacy, was one. "In February 1860 Jeff Davis offered a bill in the Senate which passed making all the territories slave territory," he wrote in 1907. "He was opposed to letting the people decide whether or not they would have slavery." So much for the states' rights theory of what the war was about!

Perhaps some equally honest Republicans will call Meese on his flip-flop. Meese wants the states to decide on gay marriage, not because he favors states' rights, but because he opposes gay marriage. There! Did it hurt that much just to say it?

1 To be sure, many Democrats voted for DOMA too, and Bill Clinton signed it.