States’ Rights: A Cause that Can Unite Right and Left

I wanted to let you know about my new book, coming out June 30th.  In it, I make the case for states’ rights.

I know, I know: “states’ rights” is one of those taboo phrases in today’s politics. If you ask Americans about states’ rights, the reaction you get is typically negative – slavery, Jim Crow, and segregation. And yet, Americans happily embrace notions that are intimately related to states’ rights, such as federalism, community-based politics, responsive politics, home rule, local control, and “think globally, act locally.” In poll after poll, Americans trust their state and local governments far more than they trust Washington.

Why the disconnect? Over the past few decades, especially since the civil rights movement, states’ rights has been unfairly portrayed as a smokescreen for racist repression. It is a convenient way to demonize “small government” conservatives and tar them with the brush of segregation.

 In my book – A LESS PERFECT UNION: The Case for States Rights – I aim to set the record straight. First, I show that states rights is not a vehicle for any particular ideological agenda, including segregation. Rather, states’ rights is the right of every state to exercise all of the powers that have not been specifically entrusted to the federal government. States’ rights is based on a fundamental individual right: the right of every American to enjoy local self-government.

And yet, no political doctrine this side of fascism has been more thoroughly demonized than states’ rights. A July 2013 New York Times essay by Michael C. Dawson, a professor at the University of Chicago, pretty much sums up the ivory tower’s view of states’ rights with his cocksure allegation that “since the nation’s founding, ‘states’ rights’ has been a rallying cry for those who wished to systematically disenfranchise and exploit large segments of their population.”

As I show in my book, states’ rights has been an honorable tradition-a necessary component of constitutional government and a protector of American freedoms from the birth of our nation. In fact, states’ rights has historically been the “rallying cry” for just about every cause progressives hold dear: the abolition of slavery, union rights, workplace safety, social welfare entitlements, and opposition to war.

The first half of the book offers a much-needed (IMHO) history of states’ rights, from the Constitutional Convention through the Civil War, and the New Deal to today. The founders fought hard to keep power in the hands of the states. Although law professors and other alleged experts like to portray the Bill of Rights as a gift from a benevolent federal government, the reality is just the opposite. The Bill of Rights was a charter of states’ rights – demanded by the state ratifying conventions as the price of establishing this “more perfect union.” The concept of states’ rights is most famously captured in the Tenth Amendment:

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.

During the nineteenth century, states’ rights played an important role as a weapon against slavery and against war. Every landmark progressive reform – antitrust law, food and drug regulation, child labor restrictions, etc. – was pioneered by the states. It was often federal power – including federal judicial power – that blocked progressive state reforms. When the federal government got into the reform game, it almost always played catch up, and it almost always relied on state governments to implement federal standards. The same is true, more recently, of environmental protection. The states, for example, enacted wetlands protections decades before the federal government.

The second half of the book makes the case for reviving states’ rights today. I argue that a return to states rights will promote:

  • Liberty (as we move away from the tyranny of 300,000+ federal crimes)
  • Democracy (as we push decisions to more state and local elected leaders, rather than unelected federal bureaucrats)
  • Diversity (as communities can set their own taxing and spending priorities, instead of submitting to one-size-fits-all federal policies)
  • Competence (as decisions are made by local administrators with more accurate information)
  • Peace (as National Guard units become true state militias, rather than additional fodder for overseas wars).

I believe that a return to states’ rights is the only way to check the tyranny of federal overreach, take power out of the hands of the special interests and crony capitalists in Washington, and realize the Founders’ vision of freedom. Although it is not a panacea, states’ rights offers us an achievable goal of setting communities free to address the health, safety, and economic well-being of their citizens without federal coercion and crippling red tape

Discussing SCOTUS Decisions on Blaze TV

I was on Blaze TV twice to discuss the final round of SCOTUS decisions.  You can see me on the Glenn Beck show, talking with Tara Setmayer, here:

And I also joined the panel on Real News to discuss Affirmative Action and Voting Rights, here:

The DOMA Decision: A National Rule Masquerading as Federalism

After making us wait so long for a decision, at least SCOTUS could have delivered a coherent opinion on the Defense of Marriage Act. Instead, the majority’s opinion in United States v. Windsor is an incoherent mess. Justice Kennedy, joined by the four liberal justices held that DOMA “violates basic due process and equal protection principles applicable to the Federal Government.”

The bottom line is that this decision creates a national mandate in favor of same-sex marriages. The majority attempts to deny this, insisting that its decision is limited only to the application of DOMA, but the majority’s reasoning must lead inexorably to the destruction of all traditional marriage laws. 

Read more on Ricochet:

A Partial Victory on Voting Rights

In an interesting decision — typical of the Court’s recent split-the-baby approach — the  Supreme Court left the Voting Rights Act intact, but forced Congress to update it.

Section 5 of the VRA requires that certain “covered jurisdictions” have to get federal pre-clearance before making any changes to their voting laws (down to things like the locations of polling places). Section 4 of the Act contains a “coverage formula” that determines which jurisdictions are covered — basically 9 states and a handful of counties are covered and have been since the 1960s (with a slight tweak in the early 70s). 

In its decision in Shelby County v. Holder, the Court did not strike down Section 5, but did strike down Section 4.  So Congress can still force states or counties to pre-clear election law changes, but Congress first has to rewrite the coverage formula to reflect 2013, rather than 1965.  The Court’s reasoning is based on the VRA’s invasion of state sovereignty

Read more on Ricochet.

My Analysis of Affirmative Action at NRO

In June 24’s Supreme Court ruling in Fisher v. University of Texas, affirmative
action suffered a tactical setback, but it gained a strategic victory: the Court
refused to dismantle the basic legal theory that allows state universities to
discriminate on the basis of race.  The nation’s collegiate diversity police
remain safe in their sinecures. I’ve got a piece at NRO’s The Corner explaining why.

The Perfect Gift!

This holiday season, with many still suffering post-election despair, give the gift that keeps on giving: The Naked Constitution!   It’s an upbeat, user-friendly guide to the original meaning of the Constitution, and how we can — and must — revive that meaning.  It’s available wherever books are sold.  Check out the “Books” page of this site or look here for links to Amazon and all the other retailers.

“Constitutional Law After ObamaCare”

Here’s a video of a lively panel discussion hosted by the Manhattan Institute.  I had the honor of being on the panel with Professors Richard Epstein, Nicholas Rosenkranz, and Michael Greve — distinguished scholars all.  We discuss originalism, federalism, standards of review, and how to be faithful to the text.  Check it out!


Debating Gay Marriage on Blaze TV

I recently appeared on Blaze TV’s Real News to debate the constitutionality of laws preserving the traditional defintion of marriage.  As I say on the show, the question isn’t whether same-sex marriage is good policy, the question is: who gets to decide?  The people and their elected representatives, or 5 unelected justices?  Take a peek, here.


What to Look for in Gay Marriage Cases

Yesterday, the Supreme Court announced that it would hear appeals in two cases involving same-sex marriage.   The Court will decide the fate of:

  • The Defense of Marriage Act (DOMA): can the federal government define “marriage” for the purpose of eligibility for federal benefits?
  • California Proposition 8: can a state define “marriage” as the union of one man and one-woman?

The two cases should raise distinct issues.  DOMA implicates federalism issues, while Prop 8 — if it raises any federal question at all – must be considered under the 14th Amendment.  Over at Ricochet, I analyze the issues, here.

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