State’s Rights

The importance of appointments to the Supreme Court isn’t limited to the issue of abortion, or to questions whether “religious liberty” protects the right to discriminate against gay people or refuse to be vaccinated, even when that “liberty” demonstrably harms others.

Thanks to Mitch McConnell, the Court now has at least four current Justices who appear ready to erase over a hundred years of precedent in order to protect the GOP’s electoral advantages. If the Court ultimately decides to ignore most of the jurisprudence that followed and applied the 14th Amendment, returning the United States to a decidedly ununited  status under the rubric of “states rights,” it won’t take long before we inhabit a country that most Americans won’t recognize.

And that country will not be a democracy, if by “democracy” we mean majority rule limited only by the Bill of Rights.

The Court recently denied efforts by Republicans from Pennsylvania and North Carolina to overturn lower court decisions that found redistricting maps favoring Democrats were fairly drawn. The immediate result was positive (or negative, depending upon your political preferences) and most people didn’t read beyond the headline. If they had, they would have seen a chilling  dissent filed by four right-wing justices who supported the Republicans’ argument that state legislatures have ultimate power to determine their own voting procedures, including the selection of presidential electors.

This–as several commentators have noted–is the old state’s rights argument.

If a state’s legislature can determine who gets to vote, or how votes are to be counted and by whom, states like Indiana that have already been gerrymandered to ensure Republican super-majorities can pass laws that further disenfranchise Hoosiers who disagree with their agenda, no matter how extensive that disagreement may be. (We saw the outlines of that agenda in the recently concluded session; Republicans and police officers opposed the bill that eliminated the requirement of a permit to carry a gun.It passed anyway. And  Republicans in the legislature have already asked the governor to call a special session to outlaw abortion if–or when–this Supreme Court strikes down Roe v. Wade.)

As historian Heather Cox Richardson recently reminded readers, in 1868, it was this very concept of “states rights” that Congress overrode with the Fourteenth Amendment–an amendment that the states subsequently ratified.

As others have noted, with appropriate alarm, at least four of the current Supreme Court justices have confirmed  that they are ready to support this independent state legislature theory. That support requires what one pundit has accurately called  “a radical reading of the Constitution that imbues state legislatures with total control over election and voting rules, and redistricting.” 

The Supreme Court has already denied the federal courts authority to overrule partisan gerrymandering. If it endorses the independent state legislature theory, that would bar state courts from doing so as well.  As the linked article summarized the situation,

f enough justices embrace this theory, it’ll give state legislatures — which skew Republican thanks to down-ballot investments and aggressive gerrymandering — free rein over redistricting, voting rules and, most disturbingly, elections. 

“It is effectively an avenue to free state legislatures from the supervision of state courts, which play a critical check and balance on the power of those legislatures,” Daley added. “All you have to do is look at state legislatures around the country to get a really good sense of what the future would look like if these legislatures are free to enact election law with impunity.”

An embrace of that theory by the Supreme Court would further exacerbate the divisions between Red states and Blue states; as the old saying goes, what’s sauce for the goose is also sauce for the gander. Many years ago, political scientist Theodore Lowi traced the resistance of local political pooh-bas to the 14th Amendment’s application of the Bill of Rights to state and local units of government. The result of that application, of course, was to create an American identity–to assure citizens that they would have the same basic rights if they moved from State A to State B.

Make no mistake: empowering state legislatures under this radical theory wouldn’t simply entrench political parties and eviscerate the 14th Amendment. It would be a retreat in the direction of the Articles of Confederation.


  1. Neither States, nor any other governmental entity, have rights. States exercise powers. The Declaration of Independence observes that people (white males enjoyed had a monopoly on “rights” back then, so I write “people here to reflect changes over time) are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” Governments are created as an expedient. To give governments rights would negate a premise of government by consent of the governed.

  2. You are correct Mark, however –
    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” 10th Amendment

    Too many States interpret this ignoring “or to the people” and they have concluded that they have the power to define and deny “rights” as fits their ideology.

    Thank you, Sheila for pointing out that the love of “State’s Rights” is in reality a yearning for the Articles of Confederation — and we know what a success that was.

    However, I wonder – Are these Justices truly State’s Rights fanatics, or are they McConnellesque and believe that States should have the power, unless the Federal government is controlled by “their people”, in which case the Federal government should have the right to override any decisions made by Blue States.

    Just asking and hoping we never find out.

  3. In the quote from Talking Points Memo, this little piece of propaganda shines like the turd that it is: “thanks to down-ballot investments…”

    By whom, to whom?

    Unless our free press uses its constitutional powers, the trend toward cannibalization by the oligarchs of our country will not cease.

    The free press needs to name names and the sources used to gobble up all the rubber stampers in local government all the way to Indianapolis and then Washington.

    Voting our way out of an oligarchy will not work unless we are informed. As long as the media or free press willingly slings propaganda for their oligarchic owners, how can we possibly make informed decisions?

    This was Einstein’s dictum in 1949 – the answer to my rhetorical question is you can’t make informed decisions. You cannot differentiate the truth from the false. Anyone claiming otherwise is deluded.

  4. The most important piece of the “independent legislature” argument is that it asks the Supreme Court to decide that State legislatures are not only supreme over the federal government and the 14th Amendment, but that they are supreme over their own State constitutions. Four Justices are, quite literally, signaling that State legislatures should be permitting to act contrary to their own State constitutions, when it comes to elections. There is, of course, no basis or precedent for this other than a very intentionally dishonest reading of the Constitution, but when it comes to power, these monsters simply don’t care. They are only for “democracy” when they win.

  5. I am always baffled why some people on the left think states are always backwards and wrong, while our national government is wise and always right. Didn’t four years of Donald Trump prove that theory wrong? One of the things that checked Donald Trump’s authority as President was that our system of federalism which gives states considerable decision-making authority.

    Trump signaled that if he is elected again, he wants more authority. And if he doesn’t run on the R side, someone in his mold wants to run again. And people on the left, by curbing the power of states, wants the President of the United States to have more authority? Why?

    Let’s be clear….when people want to curtail power exercised at the state level, they’re talking about transferring that power to the President of the United States. Congress has already ceded much of its authority to the Chief Executive.

    Instead of focusing on bad things some states do, maybe search out all the good policies they enact that our federal government does not?

  6. It seems to me, we had a taste of this before, the Jim Crow laws that were enacted to discriminate against African-Americans. It led to a great migration of those who could afford to do so, to move north to more liberal-minded states.

    Of course you can’t run from
    Innately imbued bigotry, deeply ingrained, really on a genetic level, for certain sections of the population.

    My Greates, they discovered that reality coming up from the Carolinas through Ohio and into wisconsin.

    The grass is never really greener on the other side of the fence, as they found that out by several being murdered by the local population.

    It’s just another sign of the decay of the so-called American civilization. A civilization that was never equal to everyone anyway. But the constant struggle between those who seek equal and human rights, and those who feel equality doesn’t apply to everyone, never ends.

    And, more than likely, there will be something similar to what happened in Hungary. Another Victor Orban, to speedily convert this country into an authoritarian regime, completely and undoubtedly driven by fear of difference and the self-appointed right of control and rulership.

    You can guess who is a big fan of Orban and Putin, just let your imagination run wild, lol!

    I find it fascinating how individuals like yesterday, can spout all of this Gasbaggery and not even attempt to disguise it as a Zealotry driven Rite or even Dogma!

    They don’t worship the God of Moses or the God of Christ, they make their own gods. They become self idolized and self-anointed by the blood of those who they cheerfully relegate subservience.

  7. The powerful white males are boldly cheating and breaking or changing the rules of the game in order to hold on to their power. They are behaving like school yard bullies who know the only way they can win is to cheat.

    They can’t die off soon enough to save this country. States like Indiana that are completely controlled by Rs will experience even greater outmigration to more friendly states. The one thing they can’t do is force people to live in their red states.

  8. Paul Ogden, serious question. What are the good qualities of the Indiana State Government?

  9. Does anyone else remember the 1960s and the public outcry when John Kennedy was campaigning for the presidency that “America will never elect a Catholic to be president.” Obviously we should have been paying closer attention to state level governing and the Supreme Court nominee sources. Pence’s Indiana and Trump’s Supreme Court, working with Republican states are removing our rights by ignoring their State Constitutions as well as the Constitution of the United States of America. Do we need another Revolution or heat up the current Cold Civil War to restore our rights?

    Paul’s comment; “Instead of focusing on bad things some states do, maybe search out all the good policies they enact that our federal government does not?” has overlooked one vital fact. The states suppressing voter’s rights are ignoring their own Constitutions which prevents restoration of the our rights at the federal level. Those “some states” have voided the “good policies” at state levels and sent members to the federal Congress to block good policies at the federal level by ignoring their Oaths of Office at that level. Yes, let’s be clear by curtailing the power at state levels by following their State Constitutions and we will have no need to expect the federal level to enact laws to protect and support our civil and human rights.

  10. A few years back Floridians voted for and passed a constitutional amendment requiring the Legislature “to draw political boundaries without favoring politicians or political parties or that diminish minority voters’ ability to elect candidates of their choice.” In spite of that pesky little constitutional issue, Republicans have done what they wanted, but Governor DeMentis has prepared his own map, which not only cuts African American districts, but also slices away Republicans he doesn’t like. It is the only part of his agenda he didn’t get from his toadies in the legislature. He’ll veto what they did send him and call them back into session in the next few weeks to kowtow to his wishes. Talk about your states’ rights!

  11. Jon and Nancy – you hint at what may happen in the next decade…a new “confederated” US of Blue States and Red States where people move to be where folks who think like they do live. Maybe DC will only control the military and Social Security, paid for by taxes from the two confederations. Already we have seen counties of folks petition to move from one state to another…

  12. All too often, “states’ rights” functions as merely a cynical slogan that gets trotted out whenever one party wants to control something at the state level that the other party wants to control at the federal level — usually for no better reason than because they have more power at the state level. The use of the slogan lasts precisely as long as the power balance; once that changes, the slogan is promptly forgotten and replaced by triumphant cries of “unitary executive”, “elections have consequences”, “federal pre-emption”, etc.

    As Mr. Ogden observes, neither morality nor wise policy are exclusively the property of one side of this dispute. Nor has either party been lily-pure or consistent in their application of such slogans throughout history. Decades ago, “Dixiecrats” proudly asserted “states’ rights” to continue racial discrimination in defiance of a “liberal” federal government that had enacted civil rights laws. More recently, the Trump Administration blithely ignored “states’ rights” to unilaterally deny California’s right to regulate automobile pollution within its own borders. And does anyone really think that if state elections officials were not independent of federal authority — another iteration of “states’ rights” — that the Trump Administration would not have simply ordered them to “find” however many votes Mr. Trump wanted? Meanwhile, on the other hand, state legislatures, many of them quasi-permanently gerrymandered for one-sided partisan advantage, are today making plans, under the aegis of “states’ rights”, to seize partisan control of election outcomes and ignore the popular vote.

    Note that these examples fall on both sides of what most of us here would call a stark moral divide. “States’ rights” has been invoked against civil rights, which most of us today consider a vital moral and ethical good; it’s also been invoked in favor of state-level anti-pollution measures, which most progressives favor. The right of state officials to defy the federal executive saved democracy from a would-be tyrant who wished to dictate election results for his own convenience; however, unrepresentative state legislatures acting in the name of “states’ rights” (and in their own partisan self-interest) could very well put an end to the very idea that the majority vote of the people matters at all.

    States rights is a slippery beast, especially as invoked by partisans with “motivated reasoning”. The more so because the Bill of Rights does not actually define what they are, or even whether the undefined “unenumerated rights” accrue to the states or to the people. (Later amendments protect the right to vote; but so far as I know, none of them address the Stalinesque question of “who counts the votes”, or, indeed, whether the popular vote should determine the outcome of an election at all.) Clarifying just who possesses which unenumerated rights would help a lot, but the question is likely to remain muddied for precisely the same reasons of bickering partisanship that make it a problem in the first place.

  13. This may be changing the subject a tad, but, it’s amazing to me how they can claim Congress is so United right now. They are united to earmark tens of billions of dollars towards Ukraine, which of course is an admirable thing. But, they take public money and send it overseas, but that same Congress refuses to bolster the social safety net in the United States! Why? The last I was aware, the Ukrainian government are not taxpayers in the United States, but those who are at the bottom of the totem pole here so to speak, are, or registered as such.

    You have homeless people, a large majority who are mentally ill, sleeping under bridges, and various viaducts, warm air vents, tents, in vehicles drivable and disabled. You have folks here still dying of disease because they don’t have health care, you have people who are still hungry, they “Might” eat once a day! I see it, I deliver food to those who don’t have any. Infrastructure? Infrastructure be damned! But they sure can keep throwing money into the defense budget, well outpacing inflation.

    So, I ask where is the compassion for fellow citizens, having compassion for the Ukraine is not a bad thing, but where is that equality? Where is that same zealotry for American citizens? Or, maybe those citizens are throwaways.

    As Todd says,

    they all are on the same page right now, and none of them talk about the tragedies facing the poor in this country! At this very moment, We are living in a real life version of “Les Miserables” on steroids!

    We can learn something from Christ parable of the vineyard workers. The overseer of the vineyard hired some men to work in the harvest. Say, he paid them a Denarius. These men were hired at the beginning of the day, then it was noted they needed more workers. So the overseer went and hired more men in the middle of the day! Still, the overseer noted more men were needed, so he went towards the end of the day to get more men, all that was left was the very poor poor who were eagerly willing.

    When it was time to pay everyone, they were all paid exactly the same. But the ones that were there all day asked, why are these people getting the same as we. The overseer replied, It’s my master’s money isn’t it? I do what he wishes.

    So, the point is, there’s nothing wrong with being generous and treating people equally, but, there’s the key, treating people equally. Don’t abandon those in need at home and claim to be compassionate about those far away. It’s hypocritical at the very least.

    The parable of the Good Samaritan could also be a good teaching tool, a Jewish man was waylaid by highwaymen, and, his fellow citizens stepped over the waylaid Jewish man. The Levite, and the Rabbi, they were too busy and not very empathetic. But a Samaritan man, you know him as “The Good Samaritan,” helped that Jewish man and paid for his care with his own money. Samaritans we’re not well liked by the israelites, they were actually enemies in a way.

    It’s not compassionate or empathetic to step over your own neighbors while claiming to be concerned about others far away. Those folks are self-agrandizing and self-idolized, they want to make a showy display of their self-righteousness while the entire world is watching. After all, are we not to be our brother’s keeper? Are we not to be compassionate towards our fellow? Or is our compassion just for show? What about all those who publicly embraced Vladimir Putin? Now, it’s politically convenient to make people forget about their self-serving and ignorant behavior. The poor and the needy be damned. Might as well rip the plaque off the Statue of Liberty! Huddled masses? Lol! These politicians? They’d rather throw those huddled masses in the ocean. After all, isn’t it better that everyone can see how internationally magnanimous you are? So you can get praise from other governmental leaders?

  14. I’ve already had more than enough of the reactionaries march toward dictatorship/theocracy. I am currently in the Philippines and will marry my fiancee in 10 days. I will then go home to finish up the sale of m house and personal possessions. I will then return to the Philippines to start the last chapter of my life in a country with a more stable democracy than the US. Much to my surprise I will be able to vote 6 months after I make my move and not yet a citizen. Depending on the condition of the US Government I will return for a visit June 2023. I will not return if TFG or a similar fascist has stolen the Presidency.

  15. FACT CHECK – Mr. Lightner – excuse me, the US ranks 18th in the world on the “democracy” index and the Philippines under the autocratic Duarte – 54th….you be going from bad to worse???

  16. Len’s comment about Sheila’s remark about the 4 justices’ yearning for the original Articles of Confederation make me wonder what their real end game is. That is, do they WANT the Country to Balkanize into several smaller independent nations? Because that’s likely what would happen if the protections of the Bill of Rights were left to each state to interpret and enforce.

    Poor Indiana wouldn’t survive intact as the Northwest region would meld into a powerhouse Chicago-Milwaukee-Madison city-state. The rest would be split up between Michigan, Ohio and Illinois (minus the deep blue Chicago region).

    But it’s not clear to me how such a federation could ever agree on economic or foreign/defense policies. I cannot imagine New Dixie signing on to a Rule 5 like the one in the NATO charter – where an attack on any member is considered an attack on all members.

  17. Patrick – very thoughtful thinking. Perhaps, the “US Federation” states would juice up their National Guards for defense. Then, what happens to the USA nukes?? And the great opportunity for the Texas Rangers and the various militia groups!

  18. Hey Paul — please read “The 1619 Project” and then get back to us about “all the good policies they enact that our federal government does not”. There’s a differnce between the goals of state legislatures and Congress. (Also for a real head-exploder and very funny tome, read “Allow Me to Retort: A Black Guy’s Guide to the Constitution” by Elie Mystal.)

    Welcome to the Republic of Gilead — where’s its staue of McConnell?

  19. Mitch Mcconnell has a track record that Genghis Khan would envy! And his impact on the country, especially via SCOTUS, has been horrendous.
    The State’s rights issues before us can not go well in the present atmosphere, and we will not see any of the SCOTUS “Originalists” (AKA: RNC puppets)
    removed from office, certainly not in time to save Roe, or voting rights. And, in turn, without the latter, there will never be a congressional caucus strong
    enough to do it.

  20. The Preamble notes that we are endowed with certain inalienable rights, that “AMONG THESE are life, liberty etc.” The “among these” tells us that there are other inalienable rights not enumerated in Jefferson’s effort which may be designated later by, arguably, judicial and/or legislative fiat rather than by cumbersome constitutional amendment. Trouble is, laws and judicial holdings can be reversed whereas constitutional conventions are necessary to amend our constitution. Even so, that doesn’t mean that such inalienable rights such as those not enumerated by Jefferson do not exist; the problem is how to define and give them inalienable status short of a constitutional convention. Impossible? Reinterpretation? Just another statute or judicial holding, both reversible and neither of which can be given constitutional majesty? Given the contortions the present court goes to in order to reach preordained holdings, who can know? Perhaps Justice Thomas, with Ginni’ assistance, can write the majority opinion for our edification.

    The Articles of Confederation was a states rights disaster from the beginning and was, mercifully, ended with our adoption of our constitution, and I think Madison and Jefferson threw in the 10th Amendment as a sop to the old aficionados of the Articles two years later to get their support for ratification of the constitution two years earlier. Whatever the history, the 10th Amendment has provided grounds for litigation galore, and along with Article 1, Section 4 and especially Article 1, Section 5, pertaining to election protocols, is currently in vogue.

    It would be nice to think that those who are suing to in effect have state legislatures determine the vote in their respective states rather than by raw majority vote of the people in such state, but take a look at the plaintiffs in such litigation. Their pretense in such litigation does not seek to expand democracy; they don’t care about one of the essentials of Athenian democracy, to wit: the right to govern by the consent of the majority of voters, not state legislatures.

    My response to such claims? I was born at night, but it wasn’t last night.

  21. It would be comforting to think that plaintiffs are genuine in their suits to have state legislatures determine who won and lost in their states’ elections and that somehow the small d as well as the Athenian rule of majority vote of the people were somehow served by such plan. Trouble is, such a plan is plainly antithetical to one of the linchpins of democracy, to wit: That the legitimacy of governors to govern is to be determined by the consent of the governed – and by necessary inference not the consent of state legislatures.

    The Articles of Confederation are in our wake. Let’s leave them and any vestiges of them there.

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