It’s Not Just Florida: The New States’ Rights Doctrine
Harry Reid’s comments on Sunday’s Meet the Press capped off a month of events that has made this country’s legislative and legal trend suddenly clear: states’ rights is back, with a vengeance.
Reid’s comments make clear his intent to keep heroically doing nothing for citizens in states like Florida, with its broken justice system, and Texas, with its antidemocratic denials of reproductive justice. Of the Zimmerman verdict, Reid said: “I don’t always agree with what the jury does, but that’s the system . . . I would take a look at that law in Florida, that is so unusual, the Stand Your Ground law. I think they should revisit that.” In the same interview, Reid responded to questions about the Texas abortion ban, identifying women’s access to their reproductive rights as a “fringe issue”. With these statements, the leader of the United States Senate essentially abdicated his responsibility to huge swaths of the population: it’s fine if you’re worried about civil rights abuses, but those are your state legislature’s problem, not mine.
Similarly, states’ rights is the only explanation that reconciles SCOTUS’s decisions gutting the Voting Rights Act and holding that the Defense of Marriage Act was unconstitutional. Both decisions leave it up to the states whether a person of color will stand in a line at a polling place that’s five or ten times longer than one a white person will face, or whether a gay person will be allowed protect her relationship by getting married. And, crucially, neither decision makes any effort to tell the states that they have to safeguard certain access to rights according to the federal constitution. State governments themselves have blatantly ignored the possibility that SCOTUS might take a stand on women’s rights, in particular. Over the last three weeks, Texas, North Carolina, Wisconsin, and Ohio have followed Virginia, Mississippi, and Arkansas in passing abortion restrictions that are blatantly unconstitutional, without apparent concern that SCOTUS might shut their efforts down.
States’ rights is, and always has been, a loaded term. Beware of people who claim that states’ rights is simply a name for the Tenth Amendment’s list of rights that are reserved for the states. On the contrary, “states’ rights” is a justification, expertly wielded by bigots, for any purpose designed to preserve power for wealthy white men at everyone else’s expense. It is such a pernicious lie that many high school history classes across this country, including my own in Southern California, have been trained to teach that the Civil War was fought over states’ rights, not over slavery. Obviously, maintaining this lie requires a feat of mental gymnastics, since to do it you have to ignore that those rights that the states wanted to preserve would have allowed white men to enslave an entire category of people. States’ rights, then and now, means that government isn’t in the business of promoting the rights of the many. It means that government is functioning as those men who made it always intended it to: concentrating and protecting their rights, not yours. The federal government is hardly exempt from this description, and has a horrible racist and sexist history of its own. However, the federal government is forced to build coalitions among many jurisdictions with diverse cultural histories. Occasionally, that has resulted in checks like the Voting Rights Act and the federal minimum wage, which allow the country as a whole to have a slightly higher floor for “the worst we can possibly treat people” than some individual states would prefer.
American lawmakers are sending a clear message to the non-privileged. The federal government is no longer the backstop for your broke, gerrymandered state’s legislature and its slapdash collection of hobbyist doctors, true believers, old guys, racists, and dedicated civil servants. Instead, your rights depend on the state in which you reside, and how dedicated its legislators are to maintaining a government for the benefit of those white men who can only tolerate women and brown people when they exist in perpetual servitude.