States' rights

{{uspolitics}}{{pseudolaw}}{{bronze}}
'''States' rights''' is a concept in [[United States]] [[politics]] asserting that individual {{cat|United States states|states}} should control most domestic policy.  This is due to several theoretical ideas; some believe no single national policy accommodates differing [[culture]]s and conditions among States. Others believe  most powers belong to the states, since it was they that came together to form the United States.  

The US provides far more power to  individual states than ''most other nations'' grant their administrative units.{{efn|While some countries, particularly [[Australia]] (in part), [[Brazil]], [[Germany]], and [[Mexico]], refer to their highest-level divisions as "states", this doesn't always mean they share the same system. Interestingly, however, with "devolved" governments in [[Scotland]], [[Wales]], and [[Northern Ireland]], the [[United Kingdom]] might be heading towards a similar system.}} States control many aspects of [[law]] within their borders, and have substantial influence on health and family policy. These powers are usually considered under the [[Tenth Amendment|10<sup>th</sup> Amendment]] to the [[US Constitution]], which claims powers not granted to the national [[government]] are reserved for the individual states.{{efn|Or the 'Doctrine of {{wpl|Enumerated powers||'.}}}} However, the national government plays an increasing role for many of these areas, based in part on the authority of the [[Fourteenth Amendment|14<sup>th</sup> Amendment]] (forbidding the abridgements of [[Civil rights|citizens' rights]], as well as requiring [[due process]] and [[Equal rights|equal protection]] for all citizens).{{efn|Or the 'Enfranchisement of the Negro' clauses. Generally speaking, [[Fun:Jesusland|states south of Maryland]] [[Racism|can't be trusted to treat people with a substantial amount of melanin as human beings]].}}

In political [[rhetoric]], states rights are often invoked as [[dog whistle politics]]. Any [[conservative]] opposing something the national government wants to do will claim the mantle of states rights, despite the fact that the phrase was most famously used as a justification for [[slavery]] and [[Jim Crow laws]].<ref name="ironyslavery">Ironically, "states' rights" was also invoked as an argument ''against'' the fugitive slave laws. See [http://www.loc.gov/teachers/classroommaterials/connections/slaves-court/history4.html States' Rights and the Fugitive Slave Law] at the Library of Congress, and PBS' [http://www.pbs.org/wnet/supremecourt/antebellum/majority1.html analysis of ''Prigg v. Pennsylvania''.]</ref> Interestingly, most conservatives are willing to abandon any pretense when a state wishes to do something considered [[liberal]], like grant [[same-sex marriage]], allow medicinal/recreational use of [[marijuana]],{{efn|Unless you're [[Ron Paul]].}} or allow [[abortion]] post-''[[Roe v. Wade]]''.

==States' rights and the Republican Party==
It is an historical [[irony]] that the [[Republican Party]] ("Grand Old Party" or GOP) is the current "states' rights party".{{efn|Unless, of course, we're discussing marijuana.}} At its inception in the 1850s, it was, of the major political parties, the strongest supporter of an activist federal government. During the [[American Civil War|Civil War]], the [[Abraham Lincoln|Republican President]] and [[Congress]] even passed a (gasp!) federal [[income tax]], more than ''50 years'' before the [[Sixteenth Amendment|16<sup>th</sup> Amendment]] to the [[Constitution of the United States|U.S. Constitution]] became the law of the land. After the Civil War, the Republicans instituted [[Reconstruction]] of the former [[Confederate States of America|Confederacy]], which [[WASP|white]]s in [[The South|the Southern states]] bitterly resented, because… well… no slavery. Once Reconstruction ended and the whites were able to [[Jim Crow|suppress blacks' exercise of their voting rights]], the [[Republican Party]] would be dead in the South for nearly 100 years, only supported by those few [[African American|blacks]] with the franchise and a handful of white liberals.

After Reconstruction failed (and the ire it provoked among Southern Democrats), the Republican Party shied away from social issues and dictating how people should live, until the Progressive Era and [[Theodore Roosevelt]] many years later. Without its founding cause — [[abolition]]ism, the party was taken over by business interests in the post-Civil War prosperity at the peak of the [[Gilded Age]]. Given its popularity and support among the victors in the Union Army, the party remained predominant in the North and in [[Washington, D.C.]] for the next 6 or 7 decades. It was during this period, however, because of its reluctance to govern after Reconstruction and its captivity to business interests, the Republican Party earned its reputation for corruption and a vehicle for powerful business interests to buy-off government.

In the early 20<sup>th</sup> century, a voter's support for either the [[Democratic Party|Democratic]] or Republican Party may very well been based on factors other than [[ideology]].{{efn|The main difference was that Democrats generally supported [[free trade]] while Republicans favored more protectionist policies. On almost every other issue, however, the same party could take diametrically opposed positions from one election to another.}} Region, [[social class]], [[religion]], and other [[demographics|demographic]] factors all played important roles. To simplify greatly: [[New England]]ers and Midwesterners tended to be Republicans; Southerners tended to be Democrats. The wealthy were more likely to be Republicans; the [[poor]] were more likely to be Democrats. [[Protestant]]s were Republicans; [[Catholics]] and [[Jew]]s were Democrats. City dwellers voted Democratic; countryfolk voted Republican. [[Undocumented immigration|Immigrant]]s supported the Democrats; the native (not the "[[Native American|Native]]" native kind) born voted Republican. Sometimes one factor was more important than the others; thus, wealthy Southern native-born Protestants were still likely to be Democrats. Ideology still had a role to play in voters choosing between the parties, but less so than today. 

The [[President of the United States|presidency]] of Democrat [[Franklin Delano Roosevelt]] remade the U.S. political landscape, and massively expanded the role of federal government in national life. Under his administration, the federal government would adopt many liberal programs to ameliorate the plight of the nation's poor and end the [[Great Depression]]. [[African Americans]], who had significantly supported the Republicans after the Civil War, increasingly voted Democratic. The Republicans were now the party in opposition. Thus, liberals tended to become Democrats, conservatives tended to become Republicans. The major exception was the [[Dixiecrats|Southern wing of the Democratic Party]], which was the most conservative political faction in the country, particularly on the increasingly prominent issue of [[civil rights]].

Roosevelt did little on civil rights, mostly because he wanted to avoid a split with the Dixiecrats within his administration, and continue the [[New Deal]]. And probably [[WWII|the ongoing war]] [[Japanese American internment|was a factor as well]]. He did, however, have the [[segregated]] {{wpl|Black Cabinet||,}} a group of around 45 [[African-American]]s working in his administration, some of the first blacks to ever get a position in government. His political strength lay largely with the local Democratic organizations. In the Northern cities, these were called "machines" and were controlled by a boss. In the South, the Democratic machines tended to be controlled by the local sheriffs. The machines rather liked the federal dollars that were flowing to them.{{efn|After all, they would get to control some of the contracting and [[patronage]] hiring that went along with the increased federal activity.}} The bosses were less keen about the support some of the Roosevelt administration's New Dealers showed for civil rights, however, as the political power of the Southern sheriffs depended on keeping the blacks from voting. The bosses in the Northern big city machines had a more delicate dance. Blacks were among the strongest supporters of the machines, and the bosses depended on harvesting their votes. However, the machines' core supporters were the whites who feared blacks moving into their neighborhoods. Thus, they opposed, openly or behind the scenes, desegregation and truly open housing. 
 
Nevertheless, civil rights remained a prominent political issue. Roosevelt's successor, [[Harry Truman]], desegregated the military and introduced the Fair Employment Practices Commission. Some anti-[[communist]]s were also civil rights supporters, worried that discrimination gave the [[Soviet Union]] a [[propaganda]] victory in the [[Cold War]]. Politicians from both parties supported the Civil Rights Act of 1957, which was much watered down to appease Southern members of the U.S. [[Senate]], who would have otherwise prevented its passage with a filibuster. Southerners objected that civil rights legislation amounted to the federal government's interference with their states' rights to govern their own internal affairs. Ahem.

In 1964, Democratic President [[Lyndon Johnson]] introduced and was instrumental in Congress passing the [[Civil Rights Act]] of 1964. This law, which had not been watered down, was bitterly opposed by the South. The Republicans, who had been the party that had advocated a smaller federal government ever since the New Deal, saw their chance and ran on the [[Southern Strategy]], promising Southern whites that a Republican federal government would do less to interfere with their discrimination against and disenfranchisement of blacks than the Democrats. [[Barry Goldwater]] ran as the Republican candidate for President unsuccessfully on the Southern Strategy in 1964, but [[Richard M. Nixon]] succeeded in 1972. 

Neither candidate ''seemed'' to be particularly [[racist]]: Goldwater had supported a nondiscrimination ordinance while serving on the Phoenix, [[Arizona]] city council, while Nixon, as [[Vice President]], had been the [[Eisenhower]] administration's point person for its support of the 1957 Civil Rights Act. However, Goldwater, in the [[libertarian]] wing of the conservative movement, had a strange aversion to expanding the reach of the U.S. Constitution's [[Commerce Clause]] (as the 1964 Act would require). Who the hell knows what Nixon really thought, if anything, in his dark, rotten [[soul]]? Whatever they both really believed, the Republicans knew that detaching the South from its firm allegiance to the Democratic Party was a political goldmine. And it was.{{efn|Thus began the Republican Party's slide into [[Fascism|pure dagnasty evil]].}}

==Tenther movement==
The mantra of "states' rights" has found a new suit to wear: The Tenthers.<ref>[http://www.tenthamendmentcenter.com/ The Tenth Amendment Center] is probably the largest organization promoting this.</ref> Because they take an [[originalism|originalist]] interpretation of the Constitution, they believe that any power not explicitly enumerated in the Constitution belongs to the states, and that most of existing federal law is therefore invalid. They are named after the [[Tenth Amendment|10<sup>th</sup> Amendment]] to the U.S. Constitution, which says:
{{quotebox|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.}}

Notice how the word "rights" <i>does not even appear</i>. This article could end right here: governments are understood to have <b>powers</b>, not rights, and the difference is important; powers can be revoked, unlike rights. Plus, rights are supposed to be held by persons, and when is the government a "person?" But there's more.

Though the term "states' rights" is still bandied about, the Tenthers have gotten more traction as the former term has become seen as an increasingly racist dog-whistle. Tenthers tend to be conservative or libertarian, although the movement seems to have attracted many with a narrow agenda against some federal law, like those who oppose the [[War on Drugs]], religious [[dominionist]]s who want to bring back [[state religion]]s, [[tax protester|tax protesters]], and even some [[gay]] activists. The [[Tea Party movement|Teabaggers]], of course, have latched onto this movement to conveniently declare ''any law they don't like'' unconstitutional. The Tenthers have even invoked the language of nullification, i.e. the ability of a state to ignore or override federal law. Apparently, they know their case law better than all the [[Supreme Court]]s that have declared nullification invalid since the 19<sup>th</sup> century, starting with {{wpl|Prigg v. Pennsylvania|''Prigg v. Pennsylvania''}}<ref name="ironyslavery"/> in 1842 — though on certain issues like the War on Drugs, there's no constitutional issue, as the Supreme Court has determined that states have no obligation to assist in the enforcement of federal law. They also seem to know better than the Constitution itself, having overlooked these clauses:

*The Necessary and Proper Clause:
{{quotebox|The Congress shall have Power — To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.}}
*The Taxing and Spending Clause:
{{quotebox|The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;}}
*The [[Commerce Clause]]:
{{quotebox|[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;}}

Oh, and of course, there's a whole bunch of case law against this notion. For starters, in 1819, SCOTUS ruled that the Necessary and Proper Clause gave the federal government implied powers in the case of {{wpl|McCulloch v. Maryland|''McCulloch v. Maryland''|.}} The Court ruled against [[secession]] in ''Texas v. White''. In ''United States v. Darby'', the court had this to say:
{{quotebox|The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment, or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.<ref>[https://www.law.cornell.edu/supremecourt/text/74/700 Texas v. White et. al.] United States Supreme Court, December Term, 1868.</ref>}}

However, while the above clauses have been cited to expand federal powers to a ludicrous extent, such as empowering federal involvement in the War on Drugs, it has never been the law that Congress has plenary power to do what it pleases. Such a reading would mean that most of Article I, § 8 is just redundant verbiage, a position that no one is willing to admit to taking. Instead, the Tenth Amendment has been used to strike down such provisions of federal law as § 3 of the [[Defense of Marriage Act]]. 

When [[Donald Trump]] was President and Republicans controlled both houses of Congress, the need to respect Constitutional limitations on the power of the federal government was acute. In particular, progressives rightfully criticized [[Jeff Sessions]] for invading the powers reserved to the states with regard to marijuana, and [[Donald Trump]] for tax policies that invade state sovereignty and for his push to raise the minimum age for purchasing [[tobacco]] products when the Constitution does not hint at such powers. Republicans seemed not to want to understand that if the federal government actually needs such powers, the Constitution provides a remedy in Article V, not Article III (or Trump's mythical Article XII). We saw this also in Trump's impeachment trial, in which Democrats argued the text of the Constitution and the original intent of the framers, while Republicans appealed to results-oriented jurisprudence.

===Everything is unconstitutional!===
Some things not found in the Constitution we'd have to live without:
*[[NASA]]
*[[Social Security]]
*[[Medicare]]/Medicaid
*[[Political parties]], [[Primary election|primaries]], and [[caucus]]es
*The Air Force and the Space Force
*The [[FDA]] and [[EPA]]
*The [[Thomas Jefferson|Louisiana Purchase]]
*A federally determined minimum age for buying tobacco products
*Trump's planned federal law enforcement in cities other than Washington, D.C.

===Tenthers say the darn'dest things===
Politicians embracing Tenther arguments:

*Joe Miller: Unemployment insurance is unconstitutional<ref>Igor Volsky, [https://archive.is/swnGi Pressed On New Poverty Numbers, Miller Won’t Say How He’ll Help 43.6 Million Poor]. Archived from ''Think Progress'', 19 September 2010.</ref>

*[[Sharron Angle]]: The UN is unconstitutional<ref>Ian Millhiser, [https://archive.is/Q624X Sharron Angle Claims United Nations Is Unconstitutional]. Archived from ''Think Progress'', 13 August 2010.</ref>

*[[Mike Lee]]: Child labor laws are unconstitutional<ref>[https://web.archive.org/web/20110223040434/http://www.rawstory.com/rs/2011/01/17/gop-senator-calls-federal-laws-child-labor-unconstitutional/ GOP senator: Federal ban on child labor is unconstitutional]. Archived from ''The Raw Story'', 17 January 2011.</ref>

*The GOP's Pledge to America: 

{{quotebox|We pledge to honor the Constitution as constructed by its framers and honor the original intent of those precepts that have been consistently ignored – particularly the Tenth Amendment, which grants that all 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.<ref>[https://archive.is/5Dwz A Pledge To America]. Archived from pledge.gop.gov, 22 July 2012.</ref>}}

==Presidential candidates==
A number of candidates stood on a States' Rights ticket in the mid 20<sup>th</sup> century, with limited electoral success.

===T. Coleman Andrews===
{{wpl|T. Coleman Andrews}} was an accountant from Richmond, [[Virginia]] who during World War II had served in the Marine Corps — as an [[Accounting|accountant]]. In the 1956 presidential election, he came 3<sup>rd</sup> with 107,929 votes. His running mate was Thomas H. Werdel. Andrews later led the [[American Independent Party]], which backed [[George Wallace]]'s presidential candidacy.<ref>[http://www.nytimes.com/1989/04/20/obituaries/t-c-andrews-jr-64-political-organizer.html Obituaries: T. C. Andrews Jr., 64, Political Organizer], ''[[The New York Times]]'', 20 April 1989.</ref> Yet, Andrews was still almost respectable compared to his successors.

===Orval Faubus===
[[Orval Faubus]] stood in 1960, but polled only 44,984, coming behind the [[Socialist]] Labor and [[Prohibition]] candidates. His running mate was the [[white supremacist]] {{wpl|John G. Crommelin||.}} Faubus was a governor of [[Arkansas]] most famous for calling out the National Guard to oppose desegregation of schools in Little Rock.

===John Kasper===
{{wpl|John Kasper}} was the 1964 States' Rights candidate. He was also a [[Ku Klux Klan]] member who had opposed school desegregation in [[Tennessee]]. He was even less successful, with 6,953 votes; by then, it was the era of [[Barry Goldwater]] and the [[New Right (United States)|New Right]].

==See also==
*[[Commerce Clause]]
*''[[Argumentum ad populum]]''
*[[Dixiecrat]]
*[[Dred Scott]]
*[[Originalism]]
*[[Tenth Amendment]]
*''[[Wickard v. Filburn]]''

==Notes==
{{notelist|2}}

==References==
{{reflist|2|80%}}

[[Category:Pseudolaw]]
[[Category:Racism]]
[[Category:United States government]]
[[Category:United States law]]
[[Category:United States politics]]

Categories: Pseudolaw, Racism, United States government, United States law, United States politics