Michael Wolraich's picture

    A Brief History of States' Rights

    The New York Times and dagblog's own Larry Jankens reported today on the recent growth of the "states' rights" movement among right wing militants and Tea Party activists opposed to big government. The states' rights supporters are known as "Tenthers" for their veneration of the 10th Amendment, which reserves for the states all powers that the Constitution does not explicitly grant to the federal government. They have succeeded in passing a number of hostile anti-fed resolutions in several states:

    • South Dakota and Wyoming declared that federal regulation of firearms is invalid if a weapon is made and used within the state.
    • Oklahoma, Virginia, and Utah passed laws to block national health care reform in their respective states.
    • Utah also declared its authority to appropriate federal lands under eminent domain and defended the "inviolable sovereignty of the State of Utah under the Tenth Amendment to the Constitution."

    While there is certainly a Constitutional role for states' rights, the recent clamor by the Tenthers unnerves me, perhaps because "states' rights" has long been Southern code for "Yankee, go home, and let us abuse our Negroes in peace."

    Southern calls for states' rights predate the Civil War. At an 1851 States Rights Convention in Charleston, S.C., Robert Barnwell Rhett, a radical pro-slavery advocate, implored the Southern states to secede. Northerner newspapers called Rhett and his colleagues "states rights men" and nicknamed them "Fire-Eaters" for their partisan fury.

    1858, Abraham Lincoln's Senate opponent, Stephen Douglass, declared to a cheering crowd, "This government can exist forever, divided into free and slave States as our fathers made it, each retaining the sovereign right to protect Slavery just as long as it chooses, and abolish it whenever it pleases. [Cheers] ... There cannot be perpetuity in this Government except by the administering it in good faith, upon these principles, upon which it was made, to wit, the right of each State, old or new, Free or Slave, to manage its own affairs to suit itself, and then mind its own business, and let its neighbors alone. [Immense applause.]"

    States' rights returned with a vengeance during the Civil Rights era of the 20th century.

    In 1948, Sen. Strom Thurmond split with the Democrats over their challenge to the Jim Crow laws. He created a new segregationist party commonly known as the "Dixiecrats" but officially called the States' Rights Democratic Party.

    In 1957, Gov. Marvin Griffin of Georgia committed himself to the "sovereignty of the states" and vowed, "No white and Negro children will ever sit in the same classrooms so long as I am governor."  And Governor Orval Faubus of Arkansas, defying Supreme Court desegregation orders, declared, "The authority to control public education has never been delegated by the states to the federal government."

    In 1960, a new party called the National States' Rights Party nominated Gov. Faubus for president. The party's founder, J.B. Stoner, was a Neo-Nazi and KKK organizer who was ultimately convicted of bombing a black church.

    In 1963, George Wallace famously defied a federal court's desegregation order against the University of Alabama. When the U.S. Assistant Attorney General showed up with the National Guard to enforce the order, Wallace was there to meet him. He defiantly invoked Alamaba's rights under the 10th Amendment and declared, "The unwelcomed, unwanted, unwarranted, and force-induced intrusion upon the campus of the University of Alabama today of the might of the central government, offers frightful example of the oppression of the rights, privileges and sovereignty of this state by officers of the federal government."

    Among Republicans, Sen. Barry Goldwater invoked states' rights in voting against 1964 Civil Rights Act. It was no coincidence that in the 1964 presidential election, Goldwater won only five states other than his native Arizona: South Carolina, Georgia, Alabama, Mississippi, and Louisiana. Four of these states hadn't voted Republican since 1876, and the fifth, Louisiana, had only made an exception for Eisenhower.

    Finally, Ronald Reagan, who had also opposed the Civil Rights Act, followed Goldwater's footsteps in 1980 by invoking states' rights to a cheering crowd at his first post-nomination campaign stop in Philadelphia, Mississippi, where three civil rights workers had been murdered in 1964. Reagan's subsequent landslide completed the South's Republican transformation.

    So when I hear the Fire-Eaters and "states' rights men" of the modern era agitate for freedom from the federal government, especially when they proclaim their fears that health care will be "redistributed" to the poor and to illegal Hispanic immigrants, you can color me skeptical and little bit nervous.

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    I think the skepticism is warranted, but at the same point let's not throw the baby out with the bathwater. There was a reason the founding fathers wrote the 10th Amendment. That said, it's hard to know where to draw the line. Previously, I indicated a desire to protect civil rights that overrides my desire to protect states' rights. Until you posted this, I quite firmly felt that it made sense for states to be able to opt out of the federal health insurance plan. (You omitted Virginia from your list of states that have passed such legislation, by the way.) That said, one can imagine health care as a basic human right and it's not a stretch to imagine that racism is behind many (but definitely not all) complaints against health care for all.

    That said, I'm no lawyer, and not even a very good observer of human behavior, so take it all with a grain of salt.


    Constitutionally, it's my understanding that these folks have no case, but I haven't really looked into it. In any case, I'm sure that the government could tie compliance to Medicare funding, and the recalcitrant states would scramble to accept.

    The federal government need not force the states, however, and then it becomes a policy question. As policy, I don't think that states should be allowed to opt out because I do believe that access to basic health care for all citizens is a national imperative.

    But neither was my point. It was simply that the history of states' rights demonstrates that the principle has often been abused by partisans who use the idea of "states rights" as a facade for something else entirely.


    States' Rights is truly marred in bad history.  However, the history of federalism and the 10th Amendment is what today's efforts are truly focused on.  Unfortunately even many involved don't understand the challenge with the name and gravitate to states' rights which diminishes their case.

    You may want to read;

    http://utah.tenthamendmentcenter.com/2010/02/our-target-is-federalism-and-not-states-rights/

    Keep in mind, the efforts for firearms freedom acts (MT, TN, UT before SD, and WY by the way), health care checks before implementation, proper land claims, and more are not hostile to the federal government.  Most of us involved in the efforts to restore federalism also are not anti-fed.  We are simply anti-bad or unconstitutional government.  Many feel the efforts can not stand legal scrutiny yet it is the misinterpretation of the supremacy and commerce clause (among others) that has allowed the federal beast to grow beyond its enumerated and competent powers.

    You are right about the history of states' rights, it is a tarnished phrase and I for one am doing all I can to get people to quit using it in connection with today's 10th Amendment efforts.


    I for one am glad we didn't have any states rights back in 2000.  That's how I got elected!  Remember?  The feds stomped on the Florida Supreme Court, which was trying to enforce state election laws in a state tally of votes in that state! Fools!

    Thanks for your comment, Gary Wood. A serious question for you. Why now? Obama's federal government is perhaps more aggressive than Bush's, at least in some ways, but compared to FDR, Johnson, Clinton, and even Nixon, it doesn't really compare. Why, for example, have states passed states' rights gun bills. Unlike the 90s, there are no gun control bills in congress. Obama hasn't even pushed to extend Clinton's assault weapons ban. So why the current wave of 10th Amendment fervor in 2010?


    Good question Genghis.  The Tenth Amendment Center was launched by Michael Boldin in 2006, largely due to the abuses of the Bush Administration.  Personally I have been teaching both U.S. Constitution classes and the fundamental importance of federalism for over 2 decades.  I have been pushing both the 9th and 10th extra hard for over 5 years.  Why did it take legislators in states so long to catch up?  Politics is part of it, voting out incumbents who did not understand while replacing them with people who better understand takes time, media ignored efforts until a certain level of success was achieved and now suddenly it is news...why now, I really cannot say.  I can only say I am glad to see it rising in awareness and our efforts will continue as they did before Obama and they will after Obama because this is not partisan, both major parties are abusers of our federalist republic.  Both desire power over generational liberty, and both need serious changes or replacement if we are to revive the grand experiment so utterly abused for over a century now.


    Thanks, Gary. I accept that you and Boldin are genuine in your support of states' rights, and I'm sure there are many others as well, but I submit that the sudden burst of enthusiasm has much to do with the FOX-driven paranoia about Obama the administration and that many of the supporters find the old Southern connotation of "states' rights" appealing. Take the self-proclaimed "States' Rights Republican" Ray McBerry, a Georgia gubernatorial candidate candidate and chairman of the Georgia Chapter of the League of the South--a neo-Confederate organization that definitely seems to have the old Southern states' rights in mind.

    If the new converts help your cause, I can understand how you would be enthusiastic to embrace them, but I would be wary of them taking over your cause. Barry Goldwater may have been genuine in his support of states' rights, but his decision to exploit Southern racist sympathies deeply tarnished his cause.

    You may also find that partisan states' rights supporters lose their enthusiasm if their favored party comes to power in Washington and loses power in their respective states.


    SOULLESS CHARLATAN!

    BLAGGARD!


    I know Lalo. Lalo is a troll of mine. You sir, are no Lalo.


    HeyM, I completely agree with your summary of the recent history of the clamor for states' rights, and your thoughts on the motivations underlying the current revival. That aside, it's tough for me see how a dispassionate observer could conclude that the scope of the modern federal government's authority doesn't exceed what the Constitution's framers must have intended. My limited memory of the Republic's early days includes fuzzy memories of the Articles of Confederation, which provided for an even weaker central government, precisely because many of the individual colonies were wary of ceding much sovereignty to one another. That same limited memory vaguely recalls that the Articles fell apart largely because they did not provide an adequate framework for regulating taxation, the money supply or trade policy, among other things. Hence the explicit power ceded to the federal government over those items in the structure that replaced the confederation. Anyway, it's hard to see the purely logical path from "geez, we just need to keep everyone from printing money and imposing tariffs on one another," to the sweeping scope of federal intervention in our affairs today as simply the natural outcome of regulating interstate commerce. Oh well. However questionable in principle, perhaps this expansion of power has had a largely positive effect. I'd still argue that the potential for future benefits may be diminished. I was impressed by some of what I read in David Brooks' column today, describing the negative effects of the centralization of economic and social power over the past generation and the need to reverse that trend. Unfortunately, I imagine that it's highly unlikely that such a process could occur in the US, not so much because of the cultural barriers noted by Brooks, but because our local institutions are bankrupt. The central government is the only entity left with the power to effect radical change, because it is the only entity that can borrow all the money it wants in order to do so (supported by its ability to print the money it needs to settle the debt). And that's where this rambling comment comes back to our Tenthers, and why in a sense their quest (if it were principled as opposed prejudiced as we both suspect) when tied to the anti-tax Tea Partiers, is kind of funny. To argue that we should limit the federal government's role in our lives is to argue that we should transfer power to public entities that can't print money to pay their debts. And there is no way, even in the most draconian mind, to do that without raising taxes. To me, this is another argument in favor of such a devolution of authority - if the scope of entitlements the federal government could provide were more limited, it wouldn't necessarily mean the end of those entitlements (hello Massachusetts), it would just mean that we would actually have to pay for them. Sorry this is so long. I'll try not to comment again. Congrats on the book. -Steve

    Sorry this is so long. I'll try not to comment again.

    Steve, please try harder. You're wasting precious electrons.

    Seriously, there is no doubt that the Federal government is much more powerful relative to the states than many of the Founders had in mind, though I doubt that Alexander Hamilton would be disappointed. But my reckoning, this evolution took place over 100 years from 1865 (end of the Civil War) to 1965 (Voting Rights Act). The health care plan is irrelevant to the trend.

    Of course, rapid devolution would be impossible under the current institutions. I imagine that states rights' proponents, insofar as they have a coherent plan, imagine a gradual turning of the tide, starting with gun control, eminent domain, and health care, that would lead to rebuilding state institutions.

    The thing is, the flaws of the states can't all be blamed Federal expansion. As incompetent as the Federal government is, most state governments have easily out-incompetenced D.C. I sadly shake my head every time I write the word "California." (Oops, I did it again.)

    But I wonder how many Tenthers really want more powerful states anyway. Leaving aside the nostalgic racists, the Tea Party mentality seems more akin to that of anarchists. I suspect that they don't want to rebalance government; they want to more or less eliminate it.


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