We should be allowed to ignore laws that infringe upon states’ rights!
When Americans learn about their government and politics, they will eventually hear about the states’ rights debate. Some of us first heard of the doctrine when we learned about the Civil War. But it undoubtedly shows up now when issues like drug policy and gun control are discussed.
The point of this post is not to eschew the idea of states’ rights in its entirety. Of course, there are times when state law must be respected and take precedence, because it makes the most sense. But there are sinister reasons for certain parties to take up the mantle for the states.
As I laid out in the fact sheet I created two weeks ago, this debate has existed before the drafting of the Constitution. The first constitution the original 13 colonies had was the Articles of Confederation, which only created a collection of loosely connected states with a week central government. The states needed to replace the Articles for their long-term survival.
Among our Forefathers, the federal and anti-federal debated was clearly represented by Alexander Hamilton (a Federalist) and Thomas Jefferson (a Democratic-Republican). As the Federalists passed the Alien and Sedition Acts of 1798, Jefferson spearheaded the Nullification Act in South Carolina, which held that states should be able to ignore federal laws that were deemed unconstitutional. The Federalists’ acts definitely violated the First Amendment but was Jefferson in the right?
Should states be allowed to ignore federal laws state leaders don’t like, even if they are unconstitutional? And should efforts be made to erode federal power in specific areas?
What Is Wrong With the Argument?
As many people will attest, the real debate has been hijacked. Republicans (and Democrats and organizations who are aligned with them on particular issues) are often the ones to talk about the reserved rights states have in order to make specific, regional policies. However, the same policymakers and organizations flip flop on the issue whenever it suits them.
Some of the same conservative lawmakers seek to push federal legislation aimed at social issues, the banking industry, and increasing defense spending. Both run counter to the right’s stated position of limited (federal) government and fiscal responsibility.
And I would also agree that civil rights have always remained a huge factor in the debate.
As I also mentioned in my fact sheet, slavery dominated the debate since the drafting of the Constitution and civil rights dominated the debate in the years following Reconstruction.
Alabama Governor George Wallace’s statements at his 1963 inauguration were a huge tipoff to how the issue of states’ rights was co-opted.
Let us send this message back to Washington, via the representatives who are here with us today. From this day, we are standing up, and the heel of tyranny does not fit the neck of an upright man.
Let us rise to the call of freedom-loving blood that is in us, and send our answer to the tyranny that clanks its chains upon the South. In the name of the greatest people that have ever trod this earth, I draw a line in the dust and toss the gauntlet before the feet of tyranny, and I say, segregation now, segregation tomorrow and segregation forever.
At the time of Wallace’s speech, the federal government was working to integrate schools. The Jim Crow laws were instituted in Southern and border states in 1977. Everything like seating, water fountains, restrooms, housing areas, hospitals, and schools were separated based on race (one for whites and one for “coloreds”).
Wallace would later come to regret his words, but not before signing laws that negatively impacted non-white voters, on the premise of “states’ rights.”
The views on education are iffy, at best.
No Child Left Behind was an overarching law, but it was supported by people who say they are opposed to federal intrusion. The law did not address the underlying problems behind test scores, like crime, hunger, and home life. It just exacerbated academic problems.
NCLB threatened schools with low test scores. Much-needed funding was taken from schools as a punitive measure. The push for charter schools was part of the law, as some lower-performing schools were eventually converted to charters.
In some cases, textbooks are politicized. In some Texas history books, Susan B. Anthony and Martin Luther King, Jr. were called “troublemakers.” Such a development was dangerous because many schools follow Texas’ lead when it comes to purchasing textbooks.
If asked about decriminalizing some drugs, politicians will turn down that question without even considering it. Why is that?
When you look at the types of laws we have and how they’re enforced, there is not just an incidental overlap with civil rights issues.
Consider the War on Drugs.
It effectively started in 1970, when the Controlled Substances Act was passed and signed by President Richard M. Nixon. And Nixon, looking for a way to punish blacks for being black (and hippies for being anti-war), used drug policy to suit that purpose. This was corroborated by John Ehrlichman, one of Nixon’s aides, but Ehrlichman’s 1994 interview with Dan Baum from Harper’s Bazaar was only discussed in 2016.
The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.
Look at the policies of Reagan. He made the possession and use of crack cocaine carry harsher penalties than the possession and use of powder cocaine.
Also, black and white Americans use marijuana at similar rates, but blacks are arrested more often for it and for longer periods of time.
This isn’t about the states, and that’s the point.
“States’ rights” proponents often have different views on guns and drugs. Many Republicans and Democrats want to ban all drugs besides alcohol and pharmaceuticals. At the same time, the same lawmakers fight against gun control measures. Politicians from both sides are bought off by the respective lobbies.
The NRA in particular has run contradictory efforts to first defeat state-level gun control measures. The Protection of Lawful Commerce in Arms Act was passed in 2005 at the NRA’s behest. But when Congress tried to seriously look at gun control after the Sandy Hook shooting, the NRA moved to defeat congressional gun control measures by carrying the banner of states’ rights.
That is where Federal law comes in and it should override state law as it pertains to a national need and the Equal Protection clause. Voting is one of our most important rights. I don’t care if state officials feel singled out, especially if they are guilty of find sneaky and dishonest ways of restricting the vote.
In Shelby County, Alabama v. Holder, the Supreme Court invalidated Section 5 of the Voting Rights Act of 1965. The 5-4 decision came on June 25, 2013.
Now, I know some people will argue that the act violated states’ rights because it singled out Southern States. But, that not’s true.
For one thing, Section 5 has been applied in states like Alaska, Arizona, California, and New York, as well. But that’s beside the point.
The Voting Rights Act of 1965 was so important because of the draconian voting laws in the South, and other states that were covered by the law. And even after the law was passed, governors like Wallace from Alabama, passed laws to spy on civil rights workers and make voting harder for blacks still.
So now that Section 5 has been gutted by the Supreme Court, red states in particular have gone crazy with voter ID laws and other laws to limit the vote. As it turns out, the communities most affected by the law changes mostly have minorities.
The Negative Effects of the SCOTUS Decision
Well, one can argue that everyone of age should already have an ID. But, that’s easier said than done.
Often an ID isn’t enough. An 85-year-old woman could have her ID, but then she’ll be asked to show her birth certificate. Then she’ll be asked why her last name is different (she could have been married, and I’m sure that’s a public record).
Some states have made it virtually impossible for people get (or renew) their identification cards. DMV offices in those states, like Pennsylvania, have either seen their hours (and days) reduced, been reduced in number, or both. People have to work and they don’t have the time to stand in long lines when they would be at their jobs anyway.
And some people might not be able to afford identification at one point. Should the states not pay for ID to help those with the most need or give them discounts?
And even if people can get through the above hurdles, there’s always the Interstate Voter Registration Crosscheck Program.
What’s Crosscheck, you ask?
Why, it’s a system by which people can be knocked off the voter rolls if they have similar names. One person’s name and birthdate can be compared to another eligible voter’s name. Supposedly, Social Security Numbers are used, but that isn’t always the case.
If there’s a match with the first and last names and birthdate, at least one voter may be disenfranchised. Sometimes, it doesn’t even matter if the middle names are different, because the system is flawed.
By the way, this was used by one of Donald Trump’s advisors. Just sayin’.
Insides the States
Additionally, there is often little concern about local governments with respect to the states.
Case in point: This year, a number of Republican-led legislatures had taken to pass “preemption laws,” by which they could undercut municipalities’ abilities to pass laws that are right for their residents, like minimum-wage laws or environmental regulations.
Where Would I Agree with the States’ Rights Doctrine?
Provided someone is speaking my language …
As It Pertains to Education
When asked about establishing federal education mandates, some will argue that, “no, states should be allowed to determine the curricular standards.”
Education should adhere to state standards, but only where appropriate. There should be the case for special courses that cover aspects of a state’s or city’s economy. For example, it would make since for students to be taught about farming in Iowa. It would make sense for students in New York to learn about real estate.
Beyond that, there should be federal mandates for education.
There really is no such mandate. It can be seen by some students who go to college unprepared. One young lady can be the valedictorian of her high school, but barely scrape by in a university.
Students need to have national standards. Allowing things like history books to be controlled regionally could lead to kids being misinformed when textbook creation is politicized. Students should be taught subjects like mathematics, English, and grammar at an acceptable level so they will be prepared for postsecondary education, should they pursue it, and expand their potential career paths.
As It Pertains to Drug Use
Now, there is a real case to be made for states’ rights here. It would certainly help if specific drugs were decriminalized on a federal level first, and it should be closely based on scientific and other applicable studies.
Drug regulations for recreational use should be decided at the state level. It should be based on a specific state’s needs. But you would be hard-pressed to find a politician who will support the states’ laws in this area.
Mention for example, consider marijuana, which is still a Schedule 1 drug. Colorado and Washington passed laws to legalize its recreational use in 2012. Four years later, it appears both states are doing fine with the legalization. We haven’t heard of increased accidents or violence due to the drug and millions of dollars were added to state coffers due to taxes and fees.
There are other states, like California, which have taken steps to legalize marijuana for medicinal or recreational use. As it is, certain narcotics are still illegal on the federal level. This means that law enforcement is in a conflict. Marijuana dispensaries have opened up only to be immediately shut down.
In Terms of Gun Control
Here, we can really maximize checks and balances. And I can see a partnership between states and Congress to really come up with effective gun control legislation while making sure responsible owners get to keep their guns.
For starters, we need to build on the laws we have. On a federal level, assault gun bans should stay and there should be a nationwide mandate for background checks. Congress should also account for mental illness and have a real debate about a gun owner registry (for civilians … and police officers). Hey, the NRA has a gun registry, but that’s alright?
From there, I think states should be able to write their own laws according to their residents’ needs. But I would like to see some mechanism for training (proper gun handling and storage) in order to make sure citizens are safe.
An Overarching View
I would like share a quote from Sandra Day O’Connor when she was on the Supreme Court. As a dissenting Justice in the Gonzales v. Raich (2005).
We enforce the ‘outer limits’ of Congress’ Commerce Clause authority not for their own sake, but to protect historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of power fundamental to our federalist system of government … One of federalism’s chief virtues, of course, is that it promotes innovation by allowing for the possibility that ‘a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.’
On one level, I agree with this quote. We should let states experiment with some policies to test the waters, like CO and WA are doing with marijuana.
On the other hand, there are some social issues that should not be decided by voters. And civil liberties should never be compromised.
Basically, I feel the states’ rights doctrine has been hijacked by craven, corrupt, and hypocritical politicians, organizations, and donors. There are valid arguments to support the doctrine by they are conspicuously ignored.
Whenever some federal laws favor the views of the same pundits, they have no problem enforcing them. And they would love to impose more laws that appeal to their own, their constituents’ or their donors’ ideologies.
Besides the areas I listed, you may also see this play out for two more areas I didn’t really talk about here. One is health care and the other will be the topic of the most difficult subject matter I have ever tackled.
Anderson, L., PharmD. “CSA Schedules.” Drugs.com. Medically Reviewed on 4 May 2014. Web. <https://www.drugs.com/csa-schedule.html>.
Baum, Dan. “Legalize It All.” Harper’s Bazaar. Apr 2016. Web. Retrieved 24 Jan 2017.< http://harpers.org/archive/2016/04/legalize-it-all/>.
“Controlled Substances Act.” U.S. Drug Enforcement Administration. United States Department of Justice. Web. Retrieved 24 Jan 2017. <https://www.dea.gov/druginfo/csa.shtml>.
“Gonzales v. Raich.” Justia. Web. Retrieved 24 Jan 2017. <https://supreme.justia.com/cases/federal/us/545/1/dissent.html>.
Kleiner, Sam. “In Reversal, the NRA Embraces States’ Rights.” The Nation. 11 Feb 2013. Web. <http://www.thenation.com/article/172834/reversal-nra-embraces-states-rights>.
Palast, Greg. “The GOP’s Stealth War Against Voters.” Rolling Stone. 24 Aug 2016. Web. Retrieved 24 Jan 2017. <http://www.rollingstone.com/politics/features/the-gops-stealth-war-against-voters-w435890>.
Pilgrim, David (Dr.). “Jim Crow Museum: Origins of Jim Crow.” Ferris State University. Sep 2000. Last Updated in 2012. Web. Retrieved 24 Jan 2017. <http://www.ferris.edu/jimcrow/what.htm>.
“‘Segregation Forever’: A Fiery Pledge Forgiven, But Not Forgotten.” NPR. 10 Jan 2013. Web. <http://www.npr.org/2013/01/14/169080969/segregation-forever-a-fiery-pledge-forgiven-but-not-forgotten>.