States Rights is Ridiculous

If Republicans Love States’ Rights So Much, Why Do They Want to Be President?

Michael Kazin

If Republicans Love States’ Rights So Much, Why Do They Want to Be President? September 20, 2011

Whatever their differences, the leading Republican candidates all swear that they love states’ rights. If elected president, Rick Perry vows to “try to make Washington as inconsequential as I can.” Mitt Romney declares his faith in the Constitution, which, he says, declares that the government “that would deal primarily with citizens at the local level would be local and state government, not the federal government.” Michele Bachmann “respect[s] the rights of states to come up with their own answers and their own solutions to compete with one another.” With lots of help from the Tea Party, the Tenth Amendment which, not so long ago was familiar mainly to constitutional lawyers and scholars, may now be as popular as the First or the Second. But, what this resurgence of federalism overlooks is not just the historical consolidation of federal power but also the inanity of attempts to reverse it.

For most of U.S. history, the primacy of federalism was taken for granted. Except during major wars, states exerted far more power over the daily lives of their residents than did any of the three branches of a national government located in a swampy river city on the Mid-Atlantic seaboard that most Americans had never visited. In the nineteenth century, as the historian Gary Gerstle explains, states funded canals, highways, and railroads. They decided which groups could vote and which could not. Some tried to regulate working hours. Others outlawed a variety of private acts—interracial marriage, drinking, and theater-going. In 1837, Illinois even forbade “playing at ball or flying of kites” as public nuisances.

All these policies fell under the legal sanction of “the police power,” which one influential Massachusetts judge in 1851 defined broadly as insuring the “good and welfare of the Commonwealth.” For its part, the Supreme Court, until after World War I, rather consistently ruled that the celebrated protections of the Bill of Rights—from the freedom of speech and the press to the right to a speedy trial—applied only to acts by the federal government and not to those of the states.

But, by the middle of the twentieth century, this arrangement no longer served the needs or desires of most Americans. During the Great Depression, state revenues, based mainly on property taxes, plummeted. The federal government stepped in to provide relief, and citizens everywhere began to count on Washington to keep the economy afloat and their Social Security checks arriving promptly. Then World War II and the cold war bound Americans to a national-security state that financed education for veterans and interstate highways as well as aircraft carriers and nuclear weapons. In the 1960s and ’70s, Congress passed laws to safeguard the civil and voting rights of every citizen, regardless of where he or she might live. Policies to protect the environment and regulate hazards at the workplace further diminished the sway of state governments. The Supreme Court, even with a conservative majority, has done little to reverse these changes.

Yet, states’ rights never lost its appeal to that minority of Americans who are ideologically committed to lambasting the federal state as both overweening and ineffective. (It should come as no surprise that these conservatives were so alarmed at the emergency measures taken by the Bush and Obama administrations to address the financial meltdown of 2008: the formation and rapid growth of the Tea Party was the predictable result.)However, any Republican elected to the White House in 2012 will find it impossible to lead a headlong charge back to the past, and not just because of the difficulty of undoing a half-century of tradition and Supreme Court precedent.

Voters unhappy with the inability of the federal government to restore prosperity may like the sound of “states’ rights.” But how many would trust their governors and state legislators to pay their Medicare and Social Security checks on time and at current or higher levels? How many really want 50 separate immigration policies or 50 different standards for what constitutes clean air and clean water? Or the possibility that a state, seeking to lure business away from its neighbors, could cut the minimum wage in half and not requiring employers to pay for overtime?

When you look more broadly at their promises, the GOP hopefuls reveal the emptiness of their own rhetoric. Bachmann, never a paragon of consistency, supports a federal constitutional amendment banning gay marriage, as well as the right of individual states to legalize it. In 2007, before Romney got in trouble for his Massachusetts health care law, he predicted, “that all these states … who follow the path that we pursued will find it’s the best path, and we’ll end up with a nation that’s taken a mandate approach.” Rick Perry favors federal action to stop gay marriage and restrict abortion—and, last month, asked President Obama to speed up aid to stop wildfires from burning up whole sections of his vast state. Like a lot of other Americans, these ambitious conservatives like to rail against Washington in the abstract but cannot imagine how the nation would operate without a strong central government. And the specifics of their smaller hypocrisies are underscored by one giant irony: They’re all running for president.

The U.S. has long ceased to be a country in which most people look to their state instead of to the national government to address and solve their most vital problems. State pride is pretty rare these days, except for residents and alumni who dress in the old-school colors and root hard for a college football or basketball team from a major public university.

Of course, state governments still perform a vital role in education and economic development and can still be “laboratories of democracy,” sites for testing out new policies that aren’t yet ready for national consumption. Progressives who cheered when New York legalized gay marriage and look forward to the day when Vermont begins operating the single-payer health care system it passed this spring can hardly object, at least in principle, when red states pass laws they abhor. But, as an alternative philosophy of governance in a modern nation, states’ rights is very wrong. In fact, it’s ridiculous.