States’ Rights. And Wrongs.

David Schultz is an academic colleague of mine, a Professor at Hamline University, who recently used his blog to raise an issue that is all too often ignored: the current operation of federalism.

“Be careful what you wish for because you just might get it” is an old adage that might apply to Republicans when they make calls for federalism and states’ rights.    When Republicans began advocating for more state power they probably never expected to get what they are seeing now–states pressuring one another on policy and human rights issues, and states doing things that the national government cannot do.  And when Democrats and Liberals cheer for state travel bans to punish states for bathroom bills, they too may be opening themselves up to the dangers of federalism.

As David points out, we usually see staunch defenses of “state’s rights” as Republican-speak for “we have the right to ignore parts of the constitution we don’t like.” State’s rights understood in that way have a sordid history. Theoretically, such local control would strengthen grass-roots democracy; in reality, the agenda of many of the champions of the “New Federalism” was to use states rights to weaken the national government and undo what they labeled “the liberal agenda.”

Did empowering the states allow North Carolina and Mississippi to enact anti-LGBT legislation? Did it lead to Indiana’s embarrassing anti-choice bill? Sure. But there are very few single-edged swords.

But conversely, federalism also meant that states were freed up to act and do things they could not do before.  The concept of New Judicial Federalism, launched by a famous 1986 law review article by Supreme Court Justice Brennan, meant that state courts could draw on their constitutions to innovate.  And they have.  It was state courts that launched the gay rights movement, eventually pressuring the US Supreme Court to constitutionalize a right to same-sex marriage last year.  But states have also moved on marijuana legalization, health care reform, banning the death penalty, right to die legislation, minimum wage, and a host of other reforms that the federal government could not pass and which conservatives did not like.  Change is more often than not bottom up and not top down, and the federal courts have taken their cues from state courts to make doctrinal changes under federal law….

But now consider the reaction to the bathroom bills.  States, including Minnesota, have now imposed bans on non-essential travel to these states and are leading the way to encourage corporations and organizations to boycott these states.  Unleashing federalism means that states have the power to pressure one another to toe the policy line.  Doubtful this is what states’ rights advocates envisioned.

Our current understanding of federalism invites its invocation for less than noble reasons, and ultimately, that’s not good news for anyone, conservative or liberal. As David points out,

What if other states decide they do not like legislation in Colorado or Washington legalizing marijuana?  Or what if some states want to pressure another on tax, education, or other policies?  So far the new federalism boycotts have been launched to support liberal causes, but why not for conservative ones too?  Minnesota’s economic travel ban makes many Democrats feel politically smug but that tool can be used against them too.

This type of federalism runs very close to economic protectionism and parochialism that the Constitution’s Commerce Clause was meant to prevent.  The Constitutional framers of 1787 had seen the states discriminating against one another and part of the entire constitutional project was to bring economic and political unity to the country.  Federalism and states rights can as easily be symbolized by a burning cross as it can be by a burning joint. One’s rights should not depend on which state one lives in.

America is already far too fragmented. To the extent that federalism a/k/a “states rights” empowers both those who want to opt out of today’s America and those who want to marginalize the “opt-outers,” it may be time to rethink what “e pluribus unum” ought to look like.


  1. States need a way to have a smaller sandbox that other states can’t play in. Some of the smaller states love to play with dangerous toys, while other states experiment with adulthood. But all state’s rights does is give states a way to be flexible in response to its wanna be adults who can’t wait to grow up.

  2. Yes, our country IS far too fragmented. I have often referred to it as The Divided States of America.

  3. What about the Brandeis dissent in New State Ice Co. v. Liebmann, 285 U.S. 262 (1932)?

  4. Since we have the onus of federal laws against Marijuana, it is difficult to get states like Indiana to relegalize. According to extreme state right’s advocates, it shouldn’t matter, however, they will not consider relegalization in Indiana because of federal law. Being illegal on a federal level also forbids dispensaries, fully legal in approximately 24 states, from having bank accounts, being able to electronically pay taxes and other restrictions. That makes it a cash-only business involving millions of dollars. The Republican Presidential candidates take the easy way out, saying relegalization should be left to the states, but ignore the impact federal laws have on the issue. Yes, it should be a state issue, but until the federal government eliminates the appropriate laws, it can not be.

  5. States Rights=Civil War=maintain slavery=over 600,000 dead Americans=”States Rights’. And Wrongs.”

    A good beginning place to argue for Constitution above and beyond State Constitutions…both of which are being ignored in red states to deprive entire groups of people of their civil and human rights.

  6. Along the same line as JoAnne, let us don’t forget that the emphasis on States Rights picked up steam when the Federal Government intervened to protect the African-American students who first integrated the universities in the Deep South back in the 60’s during the Kennedy years.

  7. Some might wonder why conservatism has such a lousy track record when and wherever it’s been applied.

    I think that it’s because, like fascism before it, it was never a carefully thought out construct of how to govern but rather much more the opposite. It was built as an advertising campaign path to power. In our recent case it was power to and for the Koch Bros et al because government and taxes stood in their way of becoming wealthiest in the world and responsible government even threatened the maintainence of their status quo by regulating fossil fuels back into their former value of zero.

    As entitled economic aristocracy they dusted off the Goebbel’s plan for power and went on the march with some success. Does anybody really think that either party ever worried about the wasteland in their wake?

    They hoped that the path to power would out pace the national devastation and like Germany their power would always be greater than our attention.

    And they came too close to success for comfort.

    In fact the final decision has still not been made and won’t be until Nov.

    We all hope and expect the final reckoning but untamed forces backed into a corner are unpredictable.

    In fact it’s becoming quite obvious that Trump vs Cruz was the perfect oligarchy gambit to appear democratic by waging a war between puppets. They win no matter the outcome.

    The fat lady hasn’t even tuned up yet folks so our turn to defend liberty is still in the works.

    Never give up the ship of state!

  8. Let’s not forget that the Tenth Amendment doesn’t just give powers not delegated to the U.S. to the states, but also to the people. Those who speak of states rights almost never speak of the rights of the people, be they slaves, African Americans, Jews, Catholics, or Gays and Lesbians.

  9. States do not have “rights.” As the Declaration of Independence states, people have rights. States are governments. Governments have powers, not rights. That is an important distinction. “Rights” inhere with us as humans. People bestow upon government powers. That is an expedient. Government always is subservient to the people. When any government claims a “right,” it does so contrary to the concept upon which our nation was founded. If a government has a “right,” it is equal to the people from whom it derives its power. Therefore, the concept of States’ rights is—bunk.

  10. Peggy,

    You’re right. The People have the final say. And because of the Constitution and the Bill of Rights, the REPUBLICAN TWO-HEADED MONSTER is on its way to the guillotine. Just remember Les Miserables, the Broadway play, and “One Day More.”

  11. The states are obsolete and should be completely abandoned. Indiana is the perfect example, unable to get out of its own way, a backward arbitrarily defined rural region that hangs like a dead weight around the neck of a relatively forward thinking city. Instead of Indianapolis becoming a powerful economic force in the greater midwest that could help the backwater areas around it develop, it is held back due to 18th century ideas of government and zero sum thinking among the rubes who control it.

  12. When Freddie Gray died at the hands of the Baltimore it is alleged he possessed a knife, that according to the police was illegal in Baltimore, yet legal in the state.
    Colorado has legalized marijuana, yet parts of the state have chosen to ban the substance.
    As citizens we can no longer travel freely in America, as if we are unaware of local laws we become criminals.
    This is the Divided States of America in which we live.

  13. What we need now is a PEACEFUL REVOLUTION, not based on ideology but, ETHICS. The Republican party at is “deepest” level (like the Koch Brothers) is nothing more than, pardon my expression, a “chickenshit” criminal gang.”

  14. Another excellent example of why blogs must be carefully evaluated. “It was state courts that launched the gay rights movement.” What?!? That’s preposterous. Look up the Society for Human Rights, the Mattachine Society, the Daughters of Bilitis, the National Transsexual Counseling Unit, the Stonewall riots, and we’re not even to 1970 yet. States responded to long-standing public support for popular factions. And: “But now consider the reaction to the bathroom bills. States, including Minnesota, have now imposed bans on non-essential travel to these states.” No, we really aren’t experiencing a police state, not yet. Minnesota imposed a temporary ban on “all nonessential state business travel to North Carolina” — that’s travel by state employees, not by the public in general. Think about it: How many nonessential trips to North Carolina are Minnesota state employees taking, anyway? The ban has no real impact; it’s a public relations statement — a way for Minnesota’s state tourism department to announce that everyone is welcome to spend their vacation dollars exploring the Land of 10,000 Lakes. The fact that many citizens are supportive of such state or local pronouncements about government employee spending seems more like an example of factionalism than federalism to me. And “change from the bottom up” still seems like a very good thing.

  15. This comical Republican attempt at a coup d’etat is all stage managed. Neal Conan from NPR and I discussed this fact in Jacksonville, back in 2001. I believe, I mentioned this discussion a few months ago.

    Basically, all you have to do is start throwing “rotten tomatoes” at these “foolish nuts” and the curtain will come crashing down. That’s exactly what WE did in Dallas back in 1991 in the victory for 1 man, 1 vote.

    DEMOCRACY can win again! That’s for sure.

  16. Mark. “Government always is subservient to the people.”

    Unfortunately only in democracies. Democracy is the only source of freedom and that’s what so annoys control freaks about it. Which is why I’m so for it.

  17. EFK “And “change from the bottom up” still seems like a very good thing.”

    I agree that there are changes that benefit from smaller scale trial and error before full
    implementation. But I also believe that if Feds wait for states to initiate all change progress would be dead in the water.

  18. EFK: You’re exactly right. When NC and Mississippi make discrimination part of their body of laws, why would states like Minnesota not make the symbolic gesture of limiting state employee travel to either state? It’s the triumph of thought over ignorance.

  19. Pete, I agree that the federal government should step in when state actions violate the Constitution or regulations. But as painful as it often is, I still think that change from the bottom up has more lasting value. When we have to devote time and effort to informing and persuading others on issues, we may accomplish something much more than imposed law, and therefore something perhaps less susceptible to destruction by minority factions.

  20. Helen R.; when I lived in Las Vegas in the early 1980’s, prostitution was legal in the state of Nevada but it was a county by county decision. In Clark County, where Las Vegas is located, prostitution was illegal but police ignored them “unless they caused problems on the streets”. My paraplegic, wheelchair-bound husband and I were leaving a parking garage and he was accosted by a prostitute with me walking next to him. They were stopping men on sidewalks, with wives and girlfriends, and offering bargain prices. Patrolling police ignored it all. Well; the economy was in a slump, hundreds were being laid off by casinos at that time. They didn’t take their business into casinos so maybe casino owners paid police to leave them alone – their offensive propositions did drive people off of sidewalks and into the nearest casino doors.

  21. EFK. Moral leadership it’s called. Lincoln and FDR had it and President Obama has it now. They seemed to have a fine sense of how to build political capital and invest it.

    Of course that happens at the state level too. But a fine governor does not (necessarily) a fine President make.

    In the current climate I don’t see much state led progress being made. The states seem to range from neutral to anchors resisting progress. California may be the lone exception.

  22. Yeah, states ‘rights’ but I just wish they had a United States driver’s license so that you could drive anywhere no matter where you live. Right? Well, that would require a national database of information that could be shared and THAT seems to be the problem with state’s rights.

    Think of all of the issues a national identity database would resolve.
    Illegal immigration.
    Stopping criminals going from state to state setting up new identities.
    Insurance fraud, etc.

  23. I’ve been thinking of what this might look like. The big liberal states have so many economic, social and cultural advantages that I am not sure that conservative states could pull it off. Yes, Mississippi could decide to boycott California. Would California even notice?

    I don’t think even Texas could pull it off. There is a LOT of money in Texas, and many business interests. Are they going to be willing to stop doing business with Silicon Valley because California is liberal? Are they going to pull their money out of Wall Street because New York is liberal? I just don’t see how this could play out very effectively.

  24. There’s the real world and the advertising or PR world, only real in people’s heads. When it’s played well though the PR world actually has a stronger grip on our minds.

  25. Strange, isn’t it, that the states that most clamor for states’ rights (Mississippi, Alabama, Indiana and others) are the ones who give the fewest “rights” to their own citizens but rather tell them what they cannot do. When taking constitutional law classes in law school, my professors said that the courts should always expand the constitutional franchise if there is a question about it. However, I went to law school a long time ago, years before the infamous 1971 memorandum of Lewis Powell (later appointed to the Supreme Court by Nixon) in which he outlined to the president of the U.S. Chamber of Commerce how corporations and big business could take over the politics of the country. He was right; they are doing a good job in buying our democracy, and armed with Citizens United and money scumbags like the Kochs, have increased the tempo of the purchase. We know what they are up to and it is our job to see it doesn’t happen.

  26. Bill Haslam (R-TN), Governor of Tennessee, gets a few plus points for bailing out on the idea of making the Holy Bible the “State Book of Tennessee”. We have a bird (mockingbird), a flower (the iris), a flag (three stars for the three Grand Divisions of the State), couple of state songs (“Tennessee Waltz” and of course, songwriters Felice and Boudleaux Bryant’s “Rocky Top”). That ought to be enough. Why anyone thought that a state book was a good idea is beyond me.

  27. Betty; that is better than someone here who suggested a state bug…no idea if they were serious or if it became law…too stupid to read other than the headline. I used to read the headlines only on the National Inquirer; years ago read one saying, “Woman Gives Birth To Baby With Wooden Leg”. I must admit I have been curious about that one.

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