11/25/2009 05:12 am ET Updated May 25, 2011

Memo to Govs. Pawlenty and Perry: States' Rights Rhetoric Belongs In History Books, Not Headlines

Rejecting the view that racial antagonism motivates some of his most overwrought opponents, President Obama has said that "anti-government" sentiment is more central to the protests against his policies.

Once again, the President has maintained his civility, while others have trouble maintaining the synapses between their mouths and their minds. Still, I'd find it even more reassuring if the noisiest critics of the federal government's role in health care, the economy, education, and other facets of our national life weren't recycling the rhetoric that was used to justify secession, segregation, and other injustices.

For instance, Minnesota Governor Tim Pawlenty recently suggested that he might invoke the Tenth Amendment to the Constitution to prevent his state from participating in a national health care plan. Pawlenty subsequently backed away from this threat, but not before casting a spotlight on a growing anti-government movement that uses musty constitutional arguments, with deeper roots in the old Confederacy than modern-day Minnesota.

During a Sept. 10 conference call with conservative activists conducted by the Republican Governors Association, Pawlenty warned:

You're going to see more governors, including me, and specifically Gov. Perry from Texas, and most Republican governors express concern around these issues and get more aggressive about asserting and bringing up the 10th Amendment. So I think we could see hopefully a resurgence of those claims and maybe even lawsuits if need be.

Texas Governor Rick Perry certainly has been "aggressive" about asserting states' rights. At a rally on April 15, he denounced the federal government, while some "tea party" protesters shouted "Secede!" Later that day, Perry said Texas became part of the United States in 1845 with a special understanding that it could leave if it chose and that Texans may get so fed up that they'll do just that.

Other political figures are following Pawlenty and Perry's lead. At an Americans for Prosperity "tele-town hall" meeting on August 20, Sen. Jim DeMint (R-SC) and Rep. Michelle Bachmann (R-MN) both declared that, if health care reform is enacted, it should be resisted on the state level by governors and legislators. Resolutions that states' rights supersede a national health care program have been introduced in a dozen state legislatures.

While the "birthers" are getting more publicity for questioning whether President Obama really was born in Hawaii, the "tenthers" are exerting more influence over public policy by raising one more roadblock to health care reform. But states' rights rhetoric belongs in the Jurassic Park of forgotten phrases.

In the case of McCulloch v. Maryland in 1819, the Supreme Court ruled that federal laws generally override any conflicting state laws. In the aftermath of the defeat of the secessionist states in the Civil War, the 13th, 14th, and 15th amendments to the Constitution asserted that fundamental freedoms for every American could not be denied by individual states. After decades of wavering on the federal role in the economy, the Supreme Court eventually ruled in favor of New Deal legislation providing Social Security, the minimum wage, and extra pay for overtime work. With its decision in Brown v. Board of Education in 1954, the Supreme Court also rejected states' rights arguments and ordered the desegregation of public schools in every state.

States' rights rhetoric was rightfully seen as a relic of the past by the 1960's when Congressional majorities from both parties passed the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Medicare program in 1965. With Republicans as well as Democrats taking a modern view of federalism, President Dwight D. Eisenhower created the federal highway program; President Richard M. Nixon enacted environmental and job safety laws; even President Ronald Reagan took steps to save Social Security; President George H. W. Bush proudly signed the Americans with Disabilities Act; and President George W. Bush reached across the aisle to enlist the late Sen. Edward M. Kennedy (D-MA) in passing No Child Left Behind.

For Governors Perry and Pawlenty to spout states' rights slogans is especially ironic since so much historic civil rights and social legislation was enacted during the administration of President Lyndon B. Johnson of Texas and Vice President Hubert H. Humphrey of Minnesota. In 1956, Johnson was one of only three Southern Senators who refused to sign a manifesto invoking states' rights to oppose school desegregation. At the Democratic National Convention in 1948, Humphrey led the fight for a strong civil rights plank that prompted the segregationists to walk out and found the States Rights Party.

Pawlenty should remember what Humphrey said then, "It is time to ... get out of the shadow of states' rights and move forthrightly into the sunshine of human rights." Sixty years later, Humphrey's words may be even more relevant.