I have a love/hate relationship with the phrase “state’s rights” (no matter where, if at all, the apostrophe in the first word is placed). If you want to have an even remotely honest reading of the constitution, you must acknowledge that power really does lie with states and not the federal government. Even if you don’t read the constitution, you have to acknowledge that the closer you are to an issue (both metaphorically and literally) the better positioned you will be to address it.
That doesn’t mean you’ll do it right. The 2005 Supreme Court case Kelo v City of New London is evidence of that. This was a case involving eminent domain. The defendants wanted to seize a local property that had nothing wrong with it but only because a WalMart wanted to move in. The plaintiffs didn’t want their property seized. A reasonable dispute. When the court sided with the defendants, they pointed out, accurately, that local officials are usually better suited to making decisions involving the local economy than anyone at the national scale. It’s kind of hard to argue against the logic of this decision, at least as a matter of law and overall due process. If the property owners hadn’t been properly compensated, that would be a different story.
It’s easy to see how state’s rights can be a double-edged sword. I wrestled with the proper way of describing when they’re a good thing and when they’re not. I settled on the thought that all good ideas start out small and, with a little luck, hope, promise, and elbow grease, they’ll get bigger. And with those same ingredients, bad ideas wither away and die out.
So as a general rule, I support states’ rights as the breeding ground for ideas, and the good ones will eventually become more widespread. In recent years, the most obviously visible example is how a 2004 court ruling in Massachusetts allowed gay and lesbian couples to marry. Eleven years later, that’s the law of the land.
Where I don’t support states’ rights, comes when the phrase is a euphemism or glossing over of an intent to discriminate. To pass laws that are overtly or subtly racist, or sexist, or homophobic, or otherwise to enable some form of inequality under the law. We see it in laws intended to keep any minority group down, including racially motivated gerrymandering, voter ID laws, bathroom bills, and TRAP laws.
The irony about this euphemistic use of the phrase, is that the issue here is the end goal and not the stated point of curtailing federal overreach. Indeed, since the passage of the USA PATRIOT Act in 2001, the federal government has been absolutely horrible with regard to upholding certain rights, particularly with regard to the 4th and 6th amendments. (In a bipartisan manner. Ample blame falls on both presidents Bush and Obama here…)
I am ashamed and embarrassed that my senator, Pat Toomey, is a vocal critic of what he calls “sanctuary cities”. To listen to Sen. Toomey describe it, they’re bastions of lawlessness, with crime running rampant, the perpetrators getting no punishment and the victims getting no justice or even a mechanism for redress. The reality is that all they are, is a set of rules governing when local law enforcement should and should not turn over undocumented immigrants to the federal authorities. And Sen. Toomey has just introduced a blatantly unconstitutional bill that basically says that local authorities must turn them over, otherwise the city would risk losing federal funding.
So yeah, I’m a full on advocate of states’ rights when it comes to government overreach in that regard.
In fact, the only place where I never think it’s overreach is when you’re talking about anti-discrimination laws, as if somehow it’s a controversial opinion to treat other human beings as though they were, you know, human.
So it’s heartening to see the phrase getting used for the active promotion of local activism. This article in Vox is a great start. Let’s see more of it. And then we can finally take back the term “state’s rights” and the idea from the bigots and xenophobes.