States Rights and Wrongs
by David Morris
June 6, 1995
July 4, 1995. Armed militias roam the countryside, threatening to shoot government agents. Citizens gather to demand the overthrow of the present governmental structure. The highest officials in the land earnestly debate the nature and locus of government authority.
It may as well be July 4, 1775.
The militia, to whom the Republican Party has been remarkably solicitous even after the Oklahoma City slaughter, recognizes no government authority above the local sheriff. A few weeks ago four Supreme Court Justices, in a decision overturning an Arkansas law regarding term limits, agreed with an interpretation of the Constitution which, the New York Times notes, “brought the Court a single vote shy of reinstalling the Articles of Confederation”.
The Articles of Confederation was the Constitution of the Revolution. It loosely bound together the thirteen colonies as a confederation of sovereign states. The colonists were not going to fight against a remote, arbitrary and interventionist English parliament simply to settle for a remote and powerful national government.
The Articles contained term limitations. Congress could not impose taxes nor regulate foreign or interstate commerce. Each state could veto any changes to the Articles.
In 1789 we adopted our present Constitution but ratification was no sure thing. Many leaders of the revolution, like Patrick Henry and Sam Adams, adamantly opposed the new Constitution. The victory margin in Virginia was 10 votes out of 168 convention members. New York’s convention approved the Constitution by 30-27, Rhode Island’s by 34-32.
Last winter the nation’s 30 Republican governors met in Williamsburg, Virginia, in language reminiscent of that which led to the Constitutional Convention, issued a bold call for a radical restructuring of the American body politic. “Here and in other colonial capitals, the nation’s founders first debated the idea of independence and the fundamental principles of freedom”, their 10-page manifesto declared, “Then, the challenge to the liberties of the people came from an arrogant, overbearing monarchy across the sea. Today, the challenge comes from our own federal government….
The Conference of the States plans to convene in Philadelphia in October. It has received the endorsement of the National Governors Association, the National Conference of State Legislators and the Council of State Governments.
Conservatives have moved the issue of governmental authority to center stage. Yet I confess to some doubts about the strength and depth of their belief in giving power to the people.
For one thing, they seem awfully willing to support Washington’s intervention in state and local affairs when it suits their conservative objectives.
Two months ago the Federal Energy Regulatory Commission overturned a California initiative that would have dramatically increased that state’s use of renewable energy. This unprecedented FERC action elicited no complaints from Republican presidential candidate and California Governor Pete Wilson about the arrogance of federal power.
The Republican Congress will proposed a tort reform law that virtually eliminates the traditional right of state legislatures and state courts to establish their own liability standards and penalties. The Republican version of the Clean Water Act prohibits cities and states from enacting regulations that exceed federal standards.
In April the Supreme Court ruled unconstitutional the 1990 Gun-Free School Zones Act that made it a federal crime to carry a gun within 1,000 feet of a school yard. Conservatives applauded the first restriction on federal regulatory authority since 1936. Yet that very month Republicans devised a crime bill that dramatically expands the number of federal crimes.
I’m also concerned about a fundamental inconsistency within the new devolutionist movement. The Republicans want to return power to state capitols. But if we are going to undertake a wrenching once-in-a-lifetime political revolution, why not go all the way? Why not give the most power to governments closest to their citizens, to city councils and county commissions? Remember, the average big city today contains more citizens than almost all of the original 13 states. Polls consistently show that people trust their local governments more than any other.
Devolutionists overlook another key issue. The record of states in protecting the weak and the poor and the unpopular is dismal. In parts of this country the very term “states rights” is synonymous with racism and violence against minorities. Only after the 1930s, when the Supreme Court began to apply the federal Bill of Rights to state actions, was legal protection extended to many minorities.
In recent history Washington usually has intervened in local affairs, not precipitously but only after years and sometimes decades of local neglect. A Republican President had to send federal troops into Arkansas before that state would allow its black citizens to attend major public universities. Federal action was required before blacks in the South effectively gained the right to vote. It was Washington that forced states and cities and industries to clean up the rivers and air, to feed their hungry children and pay their workers a minimum wage.
What level of government should exercise power and for what purposes? That is the question of the day. This July 4th, amidst the fireworks and parades and barbecues we should find time to discuss the historical roots of the holiday and to address that important question.