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Wednesday, Nov 17, 2004 1:55 AM UTC
If at first you don’t secede
Feeling they've lost any say in how the nation is run, liberals are turning to an unfamiliar philosophy: States' rights.
Topics: News
In the days after the election, fantasies of blue-state secession ricocheted around the Internet. Liberals indulged themselves in maps showing Canada gathering the blue states into its social democratic embrace, leaving the red states to form their own “Jesusland.” They passed around the scathing rant from the Web site Fuck the South, which lacerated the chauvinism of the “heartland” and pointed out that the coasts, far from destroying marriage, actually have lower divorce rates than the interior.
These sentiments were so pronounced that they migrated into the mainstream. Speaking on “The McLaughlin Group” the weekend after George W. Bush’s victory, panelist Lawrence O’Donnell, a former Democratic Senate staffer, noted that blue states subsidize the red ones with their tax dollars, and said, “The big problem the country now has, which is going to produce a serious discussion of secession over the next 20 years, is that the segment of the country that pays for the federal government is now being governed by the people who don’t pay for the federal government.”
A shocked Tony Blankley asked him, “Are you calling for civil war?” To which O’Donnell replied, “You can secede without firing a shot.”
For now, of course, secession remains an escapist fantasy. But its resonance with liberals points to some modest potential for constructive political action. After all, as the South knows well, there are interim measures between splitting the nation and submitting to a culture pushed by a hostile federal government. Having lost any say in how the nation is run, liberals may be about to discover states’ rights — for better or worse.
While Democrats have rarely had less power on a national level, they will still be major players in cities and states. One of the resounding victories in the 2004 election was the California proposition allotting $3 billion in state dollars for embryonic stem-cell research. The proposition runs counter to Bush himself, who has limited federal funding to a small group of preexisting embryonic stem cells. The minimum wage has remained stagnant at $5.15 an hour since 1997 and the Bush administration is opposed to an increase. But in November, Florida and Nevada, both red states, passed initiatives to raise it to $6.15 an hour. Colorado, another state that voted for Bush, also passed a measure requiring state utilities to get 10 percent of their electricity from renewable sources by 2015.
Meanwhile, even as gay rights are preempted or rolled back on the national level — and in some states — Connecticut looks set to join Vermont in legalizing civil unions for same-sex couples. As the Danbury News Times reported on Monday, “Rep. Robert Godfrey, D-Danbury, and other lawmakers say it is almost inevitable that a gay union measure will become law in the 2005 session of General Assembly.” If that happens, Connecticut will become the first state where the Legislature passed such a law without a court order.
Potential abounds for other statewide progressive measures. Howard Dean famously expanded health insurance in Vermont to guarantee coverage for all the state’s children. His followers hoped he could do the same thing nationwide. That’s not going to happen, but there’s nothing to stop people from agitating for Dean-style policies in their own states. Similarly, Margie Waller of the Brookings Institution points out, Wisconsin has a child-care entitlement for low-income working families. “If you meet the eligibility criteria, you’re guaranteed to get child care,” she says. Feminists aren’t going to get much help with child care out of the Bush administration, but they could try to replicate Wisconsin’s policy elsewhere.
Liberals have long opposed the growth of state power, and for good reason. The century’s most significant clashes over federalism have been over civil rights, with the national government forcing the South to submit to desegregation. Since then, fights over everything from abortion to school prayer have pitted Northern liberals, who want to use the federal government to enforce individual rights, often in the face of hostile majorities, against Southern conservatives, who believe that communities should be free to set their own norms.
Now, though, it’s liberal enclaves that feel threatened by the federal government, and who will likely need to muster states’ rights arguments to protect themselves from Bush’s domestic policies.
Most significantly, the states may be the last line of defense for abortion rights. If Bush is able to appoint Supreme Court judges who overturn Roe vs. Wade, the abortion question will likely revert back to the states. If that happens, according to the Center for Reproductive Rights, 30 states are poised to ban abortion. Almost undoubtedly, there would then be a push to make abortion illegal nationwide, which would leave pro-choice states relying on the doctrine of federalism, or states’ rights, to defend themselves.
“If you are intent on making sure that women can get abortions, you’re going to lobby your state legislature,” says Marci Hamilton, a constitutional law scholar at Benjamin Cardozo School of Law who argued the landmark 1997 federalism case, Boerne vs. Flores, before the Supreme Court. (That case invalidated the Religious Freedom Restoration Act, a 1993 law that exempted religious groups from some state and local ordinances.) “The decision to go to the state rather than the federal government is federalism.”
Such an embrace of federalism would be opportunistic and even hypocritical. But that’s nothing new. “It’s all about power,” says Hamilton. “That’s the only criterion.”
As Hamilton points out, many conservatives stop advocating for states’ rights as soon as they get their hands on the levers of federal power. The Bush administration is currently challenging California’s medical marijuana law, which will go before the Supreme Court next year, and Oregon’s assisted suicide law. The Federal Marriage Amendment, which in its current form would also ban civil unions, strips states of the power to regulate marriage, which previously was their exclusive domain.
“Once conservatives got in power they forgot federalism,” Hamilton says. “They left that principle in the dust and rushed to control the states that were now engaging in social experiments.”
“What’s happening is that the liberals are getting the issue,” she continues. “The issue is how do you get power in a circumstance where you don’t control the federal government. If the answer is federalism, which I think is obviously the only answer, what’s going to happen is that all those liberal law professors who were extremely critical of the Supreme Court decision in Boerne, those law professors will have to eat their words.”
Of course, given the cynicism with which both sides deploy states’ rights doctrines, it’s not clear where right-wing judges will stand when it comes to battling the left wing. In the famous case of Bush vs. Gore in 2000, Supreme Court Justice Antonin Scalia suddenly abandoned his long-standing commitment to states’ rights when he ruled that Florida had violated the equal protection clause of the Constitution’s Fourteenth Amendment, which holds that no state can “deny to any person within its jurisdiction the equal protection of the laws.”
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