States’ Rights . . . to Do What, Exactly?

By Mark Wilson

So we’ve got a federal health care law, the federal government arguing for exclusive federal authority in immigration, and statutes that allow for federal prosecution of basically any crime if that crime involved using the mail or transmitting anything over a wire.

Whither federalism?

2012 is a very different place from 1789, where there were no phones, no lights, no motor cars, not a single luxury! Of necessity, a person had the most interaction with his or her local government, and perhaps the state government. But the national government? Unless you lived on the mid-Atlantic coast, Washington, D.C. was a far-off place.

Washington, D.C. — and our federal representatives — are now a phone call away. Technology has made most commerce interstate, allowing Congress to insert itself into places that the authors of the Constitution never contemplated. One of the state-respondents’ big arguments in the issue of the Affordable Care Act was that it would violate the principle of federalism. Earlier this week, the conservative justices seemed amenable to the idea that preemption of Arizona’s immigration law might violate state sovereignty.

In practice, however, “state sovereignty” is not so much a substantive doctrine as it is a refuge. The Affordable Care Act might violate state sovereignty, but what does that mean? If Congress wants to come up with a national solution to a national problem, should it be impeded by “states’ rights”? States’ rights to what? Merely to have sovereignty?

Federalism, states’ rights, state sovereignty: these words carried more weight two hundred years ago, when, truly, each State was a separate fiefdom. But two hundred years of being a Union of States, coupled with technological advances that make interstate interaction orders of magnitude easier than in the past, issues that formerly were local issues can become national issues.

There’s also a question about which level of government is better for securing rights and liberties. Before the Civil War, we all thought that the state governments were the bastions of freedom protecting us from the tyranny of the general government back in Washington. Then Dred Scott happened, the Civil War happened, and we discovered that state governments could be oppressive and tyrannical, too.

Running for president in the 1960s, Richard Nixon used “states’ rights” as a euphemism for “states should be able to discriminate based on race if they want to.” Even though Chief Justice Roberts explicitly excluded the notion of racial profiling at the beginning of the Arizona immigration law oral arguments, the spectre of profiling remained throughout the discussion. It is undeniable Arizona is invoking “states’ rights” so that it can profile whomever it wants.

So even though far more issues today are of national scope than they were in 1789, and even though Congress is in a position to address those issues, they shouldn’t be able to because of a 200-year-old, formalistic doctrine that speaks not to actual resolution of problems but to “liberty” as nothing more than an empty catchphrase.

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