The long death of ‘states’ rights’

An Independence Day lesson in American history.
(Photo: Vivian Malone Jones registering for classes at the University of Alabama in 1963)

  1. Nullification, the Civil War, and Reconstruction
  2. The Fourteenth Amendment and incorporation
  3. “States’ rights” as opposition to civil rights
  4. Rehnquist, Reagan, and the return from the grave
  5. The lost cause of “states’ rights”

In the wake of the U.S. Supreme Court decision legalizing marriage equality across the country, public officials in states opposed to civil rights for LGBTQIA+ Americans have revived Civil War-era political and legal arguments to prevent legally recognized same-sex marriages. This opposition to the ruling draws on the same legal arguments used to defend slavery, Jim Crow apartheid, and other systems of discrimination and oppression throughout U.S. history.

The slogan of the opposition: “states’ rights.”

In honor of the July 4th holiday, The Double Standard brings you a brief history of the “states’ rights” defense, a political constant since the days of Andrew Jackson.

Nullification, the Civil War, and Reconstruction

South Carolina, the site of the first battle of the Civil War, declared in 1832 that it had the right to “nullify” federal laws with which it disagreed, in this case two tariffs. However, President Andrew Jackson, who sent a U.S. Navy fleet with a threat of troop deployment to South Carolina, quickly crushed this first attempt at “states’ rights” activism as a violation of the Constitution’s Supremacy Clause.

The Supremacy Clause says both the Constitution and federal laws “shall be the supreme law of the land,” and judges “in every state” must make decisions based on the federal Constitution or laws when they contradict local or state rules.

The heyday of “states’ rights” began with the legal defense of slavery before the Civil War and peaked with legal re-enslavement of blacks after the end of Reconstruction.

In the 1850s, Southern legislators like future Confederate President Jefferson Davis argued that attempts to ban slavery in Western territories were a violation of the “equality of rights” afforded to the states. In 1857, the Supreme Court codified this view in its infamous Dred Scott v. Sandford decision.

But the Dred Scott decision did not end the debate, and three years later Abraham Lincoln won the presidency and the South seceded and started the Civil War—a war over the right of some states to allow the legal ownership of one human being by another.

The war over a state’s right to allow slavery ended with three amendments that removed any possibility of that right from the Constitution. And during the Reconstruction period, the United States saw incredible advances made by people of color across the country, strict enforcement of new anti-discrimination policies in the Constitution, and the temporary suspension of the “states’ rights” movement.

But Reconstruction was over by the late 1870s, and white supremacists instituted the Jim Crow laws that would define the American South for the next 100 years and continue to shape America to this day. In 1896, the Supreme Court would nationally recognize the “separate but equal” interpretation of the Fourteenth Amendment’s Equal Protection Clause in Plessy v. Ferguson.

The Fourteenth Amendment and incorporation

The Fourteenth Amendment, now the single most important article of the U.S. Constitution for the protection of civil rights, only began to serve its intended purpose in the 1920s as the Supreme Court started to “incorporate” the protections of the federal Bill of Rights to the states.

Until 1925, individual states were allowed to prohibit the right to freedom of speech. The same was true of freedoms of the press and assembly until the 1930s and the establishment and free exercise of religion until the 1940s. States did not have to comply with the Bill of Rights on warrantless searches, self-incrimination, double jeopardy, speedy trial, or cruel and unusual punishments until the 1960s.

The use of the Equal Protection Clause as a crutch for discriminatory practices ended in the 1950s with the Brown v. Board of Education decision that declared school segregation “inherently unequal” and overturned Plessy v. Ferguson. By 1962, the Equal Protection Clause had become the legal foundation for anti-discrimination policies intended by its framers.

“States’ rights” as opposition to the civil rights

In opposition to the end of legal apartheid, state governments again deployed the “states’ rights” political argument to slow or stop enforcement of equal protection.

In 1959, a Virginia county closed down all public schools after a federal court order to integrate. Prince Edward County’s government then provided public grants to private schools for whites, creating the model used by other states to prevent enforcement of federal law.

Alabama Governor George Wallace blocked the front door to prevent 20-year-old Vivian Malone Jones from walking into a building to register for classes at the University of Alabama in 1963 because it was his state’s right to preserve “segregation forever.”

Wallace in the doorway while being confronted by Deputy U.S. Attorney General Nicholas Katzenbach.
Wallace in the doorway while being confronted by Deputy U.S. Attorney General Nicholas Katzenbach.

It took five years, but the Supreme Court outlawed Prince Edward County’s segregation grant program in 1964. In Alabama, National Guard troops had practiced how they would lift Wallace out of the doorway to allow Jones to enter the building. He moved out of the way.

Soon after, civil rights activists won great legislative victories with the passage of 1964’s Civil Rights Act and the Voting Rights Act of 1965. These seminal laws finally enforced the anti-discrimination provisions of the Fourteenth and Fifteenth Amendments.

By 1967, the Supreme Court had declared that states could not pass any amendments to their constitutions that violated the Fourteenth Amendment’s Equal Protection Clause. Reitman v. Mulkey declared that state courts could strike down voter initiatives and state constitutional amendments if they violated the Equal Protection Clause. While minor political and legal revivals of “states’ rights” would continue through the early 2000s, state constitutions cannot violate the protections of the U.S. Constitution, which severely limits the power and “rights” of states.

Rehnquist, Reagan, and the return from the grave

When Ronald Reagan ran for president in 1980, he endorsed the “states’ rights” movement in the same Mississippi town where James Chaney, Andrew Goodman, and Mickey Schwerner were murdered by the Ku Klux Klan and local police for registering black voters in 1964.

Debate continues over whether the use of “states’ rights” was an openly racist decision, but the racist effects of “states’ rights” policies cannot be ignored. The welfare queens and Willie Hortons of Reagan-era GOP politics are obvious attempts to complete the inclusion of Southern whites into the Republican Party. Issues of crime—“law and order”—and school integration—“forced busing”—were about the rights of states and individuals to make their own decisions without the intrusion of “big government” in Washington.

“States’ rights” had some political success, with Democratic President Bill Clinton passing strict new crime and drug laws that disproportionately imprisoned people of color and new restrictions on welfare programs that people perceived as only helping black people. However, the positions of 2015’s Democratic Party on welfare and the war on drugs show that this political success was short-lived.

Under Reagan-appointed Chief Justice William Rehnquist’s leadership of the Supreme Court, “states’ rights” became more than a political tool. A series of Supreme Court decisions during the 1990s and 2000s narrowed the powers of both the Commerce Clause and the Fourteenth Amendment, which had been used to pass civil rights legislation. Decisions overturned sexual assault protections of the Violence Against Women Act, limited federal anti-gun laws in school zones, and prevented the recovery of monetary damages from states that violate the Americans with Disabilities Act.

A 2005 decision affirming the federal government’s right to regulate “local” marijuana activity countered the “states’ rights” trend, and Rehnquist’s death later that year ended the preference towards the states in debates over federalism. The incorporation of the Second Amendment to the states in 2010’s McDonald v. Chicago shows that judicial deference to the states is not a priority of the Roberts Court, at least when desired political outcomes are under review.[1]

In 2010, Texas Governor Rick Perry used the phrase “states’ rights” in opposition to federal environmental and health care laws, but the public forced him to clarify whether or not he supported the Civil Rights Act, which shows the racist potency of the phrase.

Religious freedom and the lost cause of “states’ rights”

This history lesson brings us back to the present day, when presidential candidates and state officials continue to perpetuate “states’ rights” objections to federal laws they don’t like.

Texas Senator Ted Cruz, a former Supreme Court law clerk and Republican candidate for president, argued on NPR that “those who are not parties to a case” don’t have to follow the Obergefell v. Hodges marriage equality decision because they are not “bound by a judicial order.”

Ken Paxton, Texas’ attorney general, argues that state and local employees can refuse to issue same-sex marriage licenses based on their religious beliefs, which the federal government cannot “force” state officials to ignore. GOP presidential hopeful Mike Huckabee suggests same-sex marriage is not legal because Congress did not pass a law guaranteeing it.

But the Supremacy Clause will come out on top again. The 5th U.S. Circuit Court of Appeals ordered judges in Louisiana, Texas, and Mississippi to expedite cases that would legalize same-sex marriage on July 1, less than a week after the marriage equality decision. A federal judge in Alabama ordered county officials to grant marriage licenses to same-sex couples after they initially refused.

While a spokesperson for Governor Bobby Jindal, another candidate for the Republican presidential nomination, said the state would “follow the Louisiana Constitution,” which bans same-sex marriage, until ordered to do otherwise, clerks in every Louisiana parish said they were already willing to issue marriage licenses.

Battle after battle, reactionary politicians who desperately hold on to “states’ rights” seem to have missed a very important history lesson—they’ve already lost the war.

Zac Bears can reached at (Photos courtesy of Public Domain/Wikimedia Commons, originally photographed by Warren Leffler for U.S. News and World Report Magazine)

[1] McDonald v. Chicago struck down state and municipal gun control laws that prohibited gun ownership.


One thought on “The long death of ‘states’ rights’

  1. I was listening to Hear & Now on WBUR in Boston yesterday. It was an interview with the Pulitzer Prize winning historian / author Joseph Ellis. (the full interview They were talking about his new book; “The Quartet: Orchestrating The Second American Revolution, 1783-1789,”

    I’m not a non-fiction reader, but I’m going to buy this book because he has peaked my interest. Here are my highlights from the interview.

    “The Declaration (of Independence) is not a statement of unity or cohesion…”

    “America doesn’t create a nation in 1776, it creates a confederation of sovereign states provisionally united to win the war (against the British) then go their separate ways. ”

    “Only after the civil war did it become a nation. ”

    “Constitution doesn’t provide answers, it provides arguments. Argument is the answer. It creates a framework within which the arguments can continue. The whole notion of Original Intent (of the forefathers) doesn’t work. Because the original intent is not to hold any generation in the future hostage to their version of the answer. They want to prolong the period of intense deliberation. ”

    “The Constitution established not a democracy but a Republic. A Republic is committed to the Public Interest not the Popular Interest. The Popular interest is short range. The Public Interest is long range. It filters the popular interest’s layers of deliberation. That is the secret of a Republic against a democracy.”


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