Intellectually, there's a case to be made for the rights of state government in the face of federal power. States pre-existed the federal government. States organized and fought a revolution to break free of a strong central government. Washington is, after all, the creation of a contract among sovereign states.
States' Rights was, once, the intellectual favorite of what passed for the Left. Jefferson viewed States' Rights as a way to preserve liberty from a tyrannical central government and the power of organized money, a la Alexander Hamilton. Even today there's the occasional States' Rights argument by progressives who balk at Washington directives, on educational policy or the Defense of Marriage Act.
But for almost two centuries, the States' Rights doctrine has been the intellectual cover for a set of reactionary social and political beliefs that most Americans reject, and rightly so. The Confederacy fought a Civil War ostensibly to vindicate the rights of states to enslave people. Later on, southern states maintained that their imposition of American apartheid was a States' Rights concern. Today the same region of the nation now maintains the doctrine of States' Rights as a barrier against recognition of same-sex marriage.
The States' Rights vocabulary of the pro-slavery, pro-segregation advocates has remained remarkably consistent:
- 1860 Congressman Lawrence Keitt "We of the South contend that slavery is right, and that this is a confederate Republic of sovereign States."
- 1963 Governor George Wallace "I stand here today, as Governor of this sovereign state, and refuse to willingly submit to illegal usurpation of power by the Central Government."
And today it's used to defend a refusal to recognize same-sex marriage:
- 2015 Judge Roy Moore "The Federal government must not infringe on the rights of states."
There's even broader rhetorical connections between today's conservative movement and the words of historical reactionaries. Read George Wallace's speech announcing his candidacy for President. His litany of criticism of the courts, the primacy of property rights, the communist/socialist nature of liberalism sounds just like Ted Cruz. It's scary.
Not every rightwinger is George Wallace or Roy Moore. Not every argument about the limits of federal power comes from people determined to deny basic human freedoms to people of color or homosexuals. There is a place for consideration of the intellectual and constitutional bases of our federal system.
But enough is enough. Bobby Kennedy got it right:
"The time is long past -- if indeed it ever existed -- when we should permit
the noble concept of States' Rights to be betrayed and corrupted into a
slogan to hide the bald denial of American rights, of civil rights, and of
An idea used so long, so consistently, and so effectively to deny individual human beings their fundamental right to live freely should be called for what it is: The doctrine of States' Rights is, in practice, a cover for bigotry and injustice.