Why Liberals Dislike the States’ Rights Doctrine

          Please note at the outset that this essay does not directly address either of the two major American political parties. Rather, it is focused on the political ideologies of the right and left.

          It is obvious to observers of the U.S. political scene that many on the left of the political spectrum intensely dislike the states’ rights principle so beloved by conservatives, libertarians, and others to the right of the political aisle. As a lifelong leftist, I freely admit to distrusting people who are vociferous proponents of states rights as the primary Constitutional position. Recently, I reflected on why and how that situation evolved, not just for me personally but for many thousands who hold leftist-liberal-progressive points of view. Those reflections, as they appear herein, are not based on lofty philosophical concepts or ethical ideals. Rather, they are grounded in the American historical record since I believe the old saw attributed to Winston Churchill, “Those who fail to learn from history are doomed to repeat it.” So, let’s start with a brief foray into American history.
          We all know that the original Thirteen Colonies permitted slavery and that the far greater majority of those slaves were in the plantations of the South. When, after Britain called it quits and withdrew their armies, it came time to talk about forming a new nation, all the southern colonies insisted that a condition of their joining was keeping their slaves. In fact, part of the original doctrine of states’ rights stemmed from the determination of those southern slave owners to grow their slaves in order to expand their properties and thus increase their wealth.
          After the abolition of slavery by the Thirteenth Amendment to the U.S. Constitution, all former slave states adopted laws, collectively known as Black Codes, that restricted freedmen, the former slaves who had been emancipated but were not universally recognized as full citizens. While the Southern and Southwestern states pursued re-admission to the Union after the Civil War, they sharply constrained the rights of freedmen in a successful effort to control former slaves and to ensure they could not claim social or legal equality with the white majority that held power.

          The Black Codes granted African Americans certain restricted rights, such as legalized marriage (but only within their race) and limited access to the courts. But those same Codes denied freedmen many other rights, including to testify against whites in trials, to serve on juries or in state militias, to vote, and to express legal concerns publicly. In response to plantation owners’ demands that freedmen be required to work in agricultural occupations, many Black Codes mandated that former slaves who failed to sign yearly contracts as field hands, tenant farmers, or share croppers could be arrested and involuntarily hired out to white landowners. Most of those same states passed laws decreeing that any tenant farmer or sharecropper (and all family members) who owed a debt to the landowner could not move from the property until the debt was paid in full, effectively eliminating their right to move freely or to migrate within or out of state and creating a form of involuntary servitude known as debt slavery (also called debt bondage or debt peonage) that was passed on from generation to generation.

          The Black Codes in some states strictly limited the occupations open to African Americans. Other states barred freedmen from acquiring title to land. Still others allowed judges to force African American children to work for their former owners without parental consent. Many states enacted loosely defined vagrancy laws that resulted in the arrest and conviction of many thousands of black men who were then sentenced to work without pay in one of hundreds of forced labor camps operated by state and county governments or for large corporations (such as the United States Steel Corporation and railroads), small-time entrepreneurs, and land owners. For those and additional historical details of racial oppression and subjugation with which many if not most Americans may not be familiar, interested Readers should consult the works of the prominent Emory University historian, Leon F. Litwack (Been in the Storm So Long: The Aftermath of Slavery. New York: Vintage Books; Winner of the 1980 Pulitzer Prize and the National Book Award; and Trouble in Mind: Black Southerners in the Age of Jim Crow. 1998. New York: Alfred A. Knopf) and Charles Blackmon, (Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II. 2008. New York: Doubleday Press).

          But the Black Codes weren’t the only tool used by states to legally oppress and discriminate against black Americans. Jim Crow laws were state and local laws enacted between 1876 and 1965 that mandated de jure racial segregation in all public facilities, with a supposedly "separate but equal" status for black Americans. In reality, those laws led to treatment and accommodations that were drastically inferior to those provided for white Americans. The result was to institutionalize a large number of socioeconomic and educational disadvantages for blacks, including the prohibition of racial intermarriage; requiring separate waiting rooms for public transportation (buses and trains); establishing separate schools for whites and blacks where the teachers, facilities, and educational materials were never of equal quality; and prohibiting whites and blacks from eating in the same dining rooms, from staying in the same hotels; from using the same toilet facilities, from using park or other public facilities reserved for whites. And on and on and on.

In case Readers feel a sense of moral superiority because they live in states that couldn’t possibly have been involved in anything so sordid and degrading as de jure segregation, the following 35 states, or nearly 75 percent, enacted and enforced Jim Crow laws:

Arizona                      Arkansas                    California

Colorado                   Connecticut                 Florida

Georgia                      Idaho                          Illinois

Indiana                       Kansas                       Kentucky

Louisiana                   Maine                          Maryland

Mississippi                 Missouri                      Montana

Nebraska                  New Mexico               North Carolina

North Dakota            Ohio                           Oklahoma

Oregon                      Pennsylvania               Rhode Island

South Carolina           South Dakota             Texas

Utah                          Virginia                       Washington

West Virginia            Wyoming

          After World War II, President Harry Truman issued three executive orders that desegregated the military and supported a civil rights bill by making it illegal to use race to discriminate against persons applying for civil service positions and prohibited defense contractors from discriminating against anyone because of race. Those policy shifts caused a split in the Democratic Party that led to the formation of the States' Rights Democratic Party (commonly known as Dixiecrats) led by Strom Thurmond. The States' Rights Party vehemently opposed racial integration and was determined to protect what they portrayed as the “southern way of life” against an oppressive federal government by retaining the Black Codes, Jim Crow laws, and white supremacy. For historical correctness and to help clarify what the States' Rights Party believed in and actively promoted, I have provided a quote from its 1948 platform: "We stand for the segregation of the races and the racial integrity of each race." That political position is pretty hard to misrepresent or to spin into a more acceptable conservative posture with regard to exactly what people who believed in states’ rights meant in the real world.

          Thurmond ran as the States' Rights candidate for President in 1948, losing the election to Truman. It is important to note that in 2002, incoming U.S. Senate Majority Leader Trent Lott said of his good friend, Thurmond: “When Strom Thurmond ran for president, we voted for him. We're proud of it. And if the rest of the country had followed our lead, we wouldn't have had all these problems over all these years, either." For the historical record, that’s the same Strom Thurmond who famously said when he was the States' Rights Party candidate for President: “All the laws of Washington and all the bayonets of the Army cannot force the Negro into our homes, our schools, our churches." No hidden racial innuendos in that straightforward states’ rights position.

          For over one hundred years after the Civil War the term states' rights was code for state and local government-condoned terrorism directed against racial minorities, especially black Americans. Today, no one who has used the phrase states' rights can be unaware of the massive resistance movement across the South and Southwest organized to oppose federally forced desegregation that catapulted onto the national stage after World War II or the powerful message of solidarity it historically sent to Southern whites about racial oppression and segregation. To deny that reality, while claiming the states' rights Constitutional provision should be solely understood as providing States with power against the potential tyranny of the federal government, is to be willfully and churlishly blind to American history. As an aside, it is a delicious historical irony for leftists like me that the practice of the states’ rights doctrine by Confederate governors directly contributed to the defeat of the Confederate states in the Civil War and the abolition of slavery.

          Many on the left side of the political fence still take considerable offense at use of the term because of its past service as a euphemism of the bigotry of conservatives like George Wallace and Strom Thurmond. Which is why, in my opinion, so many liberals were outraged when Ronald Reagan, a staunch proponent of overturning California’s 1963 Fair Housing Act and thus allowing racial and ethnic discrimination in the sale or rental of homes, launched his 1980 Presidential election campaign by invoking states’ rights at the Neshoba County Fair in Philadelphia, Mississippi, that bastion of White Citizens’ Councils and unrepentant racial hatred. Reagan’s use of states’ rights in that speech was a tacit endorsement of racism and de facto and de jure segregation. Anyone who believes otherwise either does not fully understand the history of Mississippi, the American South, Ronald Reagan, is being intentionally disingenuous, or has chosen to wear mental blinders that restrict analysis and judgment.

          Of course, conservative apologists like David Brooks have piously absolved Reagan of racism while studiously ignoring the broader significance of his Neshoba County appearance and earlier support of California’s Proposition 14 that in 1964 overturned the State’s Fair Housing Act as well as his denouncing civil rights laws in his successful campaign for the California governorship. Here’s a direct quote from Reagan’s lips during that campaign: "If an individual wants to discriminate against Negroes or others in selling or renting his house, it is his right to do so." (Source: Kyle Longley et al. Deconstructing Reagan: Conservative mythology and America's fortieth president. M.E. Sharpe, Inc. 2007, p. 76. ISBN-10: 0765615916).

          Despite conservative columnists’ labored defense of Reagan, he also used racially loaded remarks in 1976, when he tried to defeat Gerald Ford for the Republican nomination. Those remarks characterized welfare recipients as Cadillac-driving welfare queens and "young bucks" buying T-bone steaks with food stamps. And, yes, those quotes are a matter of historical record and were not fabricated by rabid leftists or by the liberal media. My definition of a racist includes anyone who intentionally uses racially focused language to further a political or social position that discriminates against or inappropriately affects a racial group, which qualifies Reagan as a racist despite his and his supporters’ facile denials.

          After the 1980 Neshoba County watershed event, Ronald Reagan, George Bush (remember the vicious Willie Horton attack ads crafted by James Pinkerton and Andrew Card?), and other right-wing politicians created a conservative political ideology that expressed implicit yet powerful racial messages easily understood by their supporters. But since then, conservatives have developed a strategy in which they throw their hands up in self-righteous indignation while claiming that any allegations of racism against them are scurrilous smears and slurs on their character and in so doing have been effective in discrediting the entire discussion by focusing it on accusations of individual prejudice rather than intentional political strategy.

          It’s very easy for conservatives to appeal to the advocacy of James Madison and Thomas Jefferson with respect to states’ rights and even to state nullification of federal law as Constitutional First Principles and not as implicit or explicit racism. However, I have yet to read conservative commentary that puts that advocacy in the context of Madison and Jefferson having been lifelong slave owners and authors of critical constitutional documents that institutionalized slavery and allowed it to flourish or, more importantly, in the context of the horrific violence states’ rights advocates systematically visited on their slaves and later on black freedmen through enacting and enforcing Black Codes and Jim Crow laws up to the 1970s. Draping the meaning of states’ rights solely with the supposedly noble cloak of the Founders is a hypocritical technique that purposefully ignores the next two hundred violent years of American history and disparages the struggle of racial minorities against the bigotry and tyranny of the white majority.

          Today, I personally do not think many, if not most, conservatives who advocate states' rights are racists. I do believe, however, that most conservatives have intentionally chosen to ignore or sharply devalue the heavy freight that has been an inseparable part of that term through two centuries of bloody repression and systemic terrorism inflicted on racial minorities. The fact that that terrorism was home-grown and encouraged or tolerated by civil authorities for over one hundred years does not mitigate the evil it visited on millions of blacks and other minorities. It is a reprehensible facet of American history that will not go away no matter how desperately conservatives attempt to ignore it or to spin its many political implications into something more palatable.

          If liberals are able to recognize that conservatives have legitimate concerns with respect to states’ versus federal rights, whether they agree with those concerns or not, perhaps conservatives can acknowledge the historical use of states’ rights, both as a tool to viciously oppress black Americans and later as a code that continues to appeal to racial prejudice, adversely affects today’s understanding of the term. Note the operative word in the above sentence is perhaps. But I wouldn’t recommend holding your breath while waiting for many conservatives to respond in a forthright manner.