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Their Secessionist "States Rights" versus Our Collaborative Federalism
Nathan Newman on April 23, 2009 - 11:01am
There have recently been a wave of rightwing resolutions asserting "state sovereignty," with Governor Rick Perry even evoking Civil War-era rhetoric about Texas having the right to secede from the United States.
The Rightwing Continues Pre-Civil War Confederate View of Federalism: Most of the resolutions are relatively empty rhetoric repeating the Tenth Amendment's phrasing of powers "reserved to the states respectively, or to the people," sometimes with a few cranky references to illegitimate Federal Reserve power or complaining about infringement on the right to bear arms. The Georgia Senate went one step further into Southern Confederate rhetoric and approved a resolution that asserts the right of the state to "nullify" federal laws it disagrees with and even declares many federal criminal statutes void.
What the resolutions share, unsurprisingly, is a focus on a Tenth Amendment that originally justified slavery and Confederate secession, while the resolutions studiously ignore the existence of a 14th Amendment (along with other post-Civil War amendments) that explicitly gave the Congress new powers to supersede state laws and put to rest these kinds of secessionist and nullification-style interpretations of the original Constitution. As this Brennan Center for Justice report from a few years ago outlines, any focus on Constitutional "original intent" must focus on the intent of the authors of those post-Civil War Amendments and recognize the broad federal powers intended to rectify the harms created by slavery and other social ills that festered in the pre-Civil War constitutional era.
The Alternative Progressive Demand for Collaborative Federalism: That said, there is a long progressive tradition of demanding that the federal government respect state authority that does not conflict with federal laws. As we wrote in Restoring State Authority: An Agenda to Restrict Preemption of State Laws, the real problem is that too often, even when Congress has not explicitly legislated against state powers, the executive branch and the courts have used loose interpretations of those statutes to void state laws meant to protect consumers, workers and the environment.
The irony is that so many of the rightwing activists who have suddenly discovered the abuses of federal power were silent over the last eight years as the Bush administration and the conservative courts voided state laws designed to stop the sub-prime mortgage mess, protect labor rights, or generally restrain corporate abuses.
Instead of talking about secession and playing a game of which level of government has responsibility for protecting the public's health, safety and economic well-being, the progressive view of federalism is that we should maximize collaboration, innovation in policy and protection of individual rights by all levels of government. The federal courts and Presidency should defer to state authority, unless there has been an explicit decision by the Congress to preempt that local authority -- which itself should be rare. Federal laws and regulations should be a floor for consumer, civil rights and worker protections, with the ability of states to create or enforce more expansive protections for individuals strongly protected.
Neo-confederate rhetoric around "states rights" and secession should be condemned, but progressives should be asserting a robust vision of collaborative federalism and a federal government that respects state innovation -- a vision that the Obama administration seems to be embracing to its credit.
Progressive States Network - Restoring State Authority: An Agenda to Restrict Preemption of State Laws
Brennan Center for Justice - A New Birth of Freedom: The Forgotten History of the 13th, 14th and 15th Amendments
Center for Progressive Reform - Federal Preemption: Undercutting State Protections for Health, Safety and the Environment
Constitutional Accountability Center - Redefining Federalism