Arguing the Primacy of States’ Rights--Sometimes

NANTUCKET, MASS. —  As the fall campaign gets underway in earnest, legal pundits continue to debate whether vice-presidential nominee Dick Cheney’s hasty change of residency from Texas to Wyoming cures the problem for the GOP ticket posed by the 12th Amendment rule. This states that members of the Electoral College cannot vote for a president and vice president who are “inhabitants” of the same state. Such arcane niceties may fascinate law professors, but the real significance of Cheney’s move lies in the fact that a vice-presidential candidate of the party aggressively committed to expanding “states’ rights” traded in one state residency for another as if discarding cards at a game of draw poker.

In the last few years, a Republican-dominated Supreme Court, supported by GOP leaders and bolstered by GOP-sponsored legislation, has wielded the doctrine of states’ rights to provide states with an ever-expanding shield against federal civil-rights laws as well as against lawsuits by private parties challenging illegal state actions. Conservatives have justified this expansion of state power as necessary to protect “traditional state prerogatives” from federal intrusion and as essential to protecting what they describe, almost metaphysically, as the “dignitary” interests of states.

In evaluating this, it is well to recall that the concept of states’ rights has a deeply problematic history. It has served as both a legitimate check on centralized authority and a theoretical fig leaf for maintaining slavery, resisting desegregation and perpetuating other social inequalities. Throughout U.S. history, from Fort Sumter to the streets of Birmingham, Ala., appeals to the “dignity” of states have often played a pernicious role as a rallying cry for resisting the Constitution’s demands of individual liberty and equality.

Undeterred by past practice, proponents of this states’ rights resurgence insist their dramatic reconfiguring of the balance of power between states and the federal government reflects nothing more than a return to the “original intent” of the founding fathers. As Cheney’s casual change of residency suggests, however, the theoretical underpinnings of the GOP’s aggressive states’ rights position have eroded greatly in the modern era.

In 1804, when the 12th Amendment was adopted, most Americans felt a stronger allegiance to their state than to their country. Thomas Jefferson was more Virginian than citizen of the United States. To the North, the Adamses represented a uniquely Massachusetts identity and viewpoint. As late as the Civil War, Robert E. Lee resigned from the U.S. Army to lead the Confederate forces because he felt a greater loyalty to Virginia than to the Union. Even on the Union side, the hero of Gettysburg, Joshua Chamberlain, rallied his troops at the Little Round Top not around the Stars and Stripes but around the flag of the 20th Maine.

For most Americans, such an identification with state as opposed to nation has long since disappeared. In strictly legal terms, the post-Civil War constitutional amendments that, for the first time, required states to respect the “privileges and immunities” of national citizenship strengthened the bonds of nationhood. More important, revolutions in transportation, communications and patterns of wealth and employment blurred state boundaries and unified the country.

Today, a rapidly growing number of Americans move their residence across state lines at least once in their lives, and usually more than once. Families are commonly spread from coast to coast. Meanwhile, members of the burgeoning economic elite routinely maintain homes in several states at once.

This modern development is epitomized by the Bush family. The elder Bush, George W. in tow, moved seamlessly between Maine, Connecticut and Texas--as convenience and politics guided. Chief Justice William H. Rehnquist, the architect of the Supreme Court’s states’ right revival, was born in Wisconsin, educated in Massachusetts and California, moved to Arizona, lives in Washington and maintains a vacation home in Vermont.

Such transience in American society, so neatly captured by Cheney’s 12th Amendment evasion, has profound implications for those now championing states’ rights. To be sure, this doctrine still has a crucial place in our constitutional design. The states provide 50 laboratories for social and political experimentation. The nation’s recent progress with welfare reform is testament to the value of a federal structure. Some issues, moreover, are genuinely better suited for handling at the state and local level.

But such pragmatic considerations are scarcely mentioned in the recent Supreme Court decisions striking down federal laws that allowed women to sue their sexual assailants, protected schools from gun violence and provided for the disposal of toxic wastes. Nor did a concern for experimentation play a part in court rulings that now bar individuals from suing states for violating federal age discrimination and copyright laws, or in Congress’ sharp cutback on the federal judiciary’s authority to guarantee that state courts fully enforce the Bill of Rights.

Rather, by invoking parochial notions of dignity, states’ rights crusaders have premised these decisions on a pride of individual statehood that is anachronistic. The era in which states, representing a distinct and unchanging local citizenry, enjoyed such sanctity of place is over.

We should not mourn that era’s passing. To the contrary, for conservative leaders to award states awesome new powers on the basis of a conception of statehood that their own actions clearly belie invites the charge of hypocrisy. It also calls into question whether their states’ rights rhetoric is really motivated by a devotion to the idea of statehood or is (as so often in the past) a mask thwarting the enforcement of progressive laws.

Indeed, though the topic of states’ rights is unlikely to make headlines in this fall’s presidential campaign, those who seek a meaningful difference between Texas Gov. George W. Bush and Vice President Al Gore need look no further than this issue. The current Supreme Court is divided 5-4 in favor of enhancing states’ rights, with the justices in the minority vowing to wage an “epic” struggle to reverse the current trend.

Which side will win this battle over the basic structure of our government depends in large part on the president who will be filling the next vacancies at the court. With several justices at or near 80 years old, and with three members of the court recovering from cancer, that is something to ponder in November.