America’s Post-Roe Constitutional Abyss
The states’ rights theory embraced by
slaveholding states before the US Civil War and later used to defend
racial segregation is again threatening civil rights and the
underpinnings of the American state. The doctrine is part of a
right-wing legal insurgency attacking everything from federal regulation
to the electoral system.
WASHINGTON, DC – The old legal specter of the states’ rights doctrine
is haunting the American republic. This zombie constitutional theory was
once used to promote the cause of the rebellious slaveholding states
before the US Civil War and to defend racial segregation in the former
Confederacy for a century afterwards. Today, it again threatens both
civil rights and the underpinnings of the American state.
The states’ rights theory holds that the
states may decide on core liberties and even nullify national policies.
And it runs through the
recently leaked draft of a US Supreme Court majority opinion authored by Justice Samuel Alito that would overturn
Roe v. Wade, the Court’s landmark 1973 decision that legalized abortion nationwide.
Such a ruling would return the United States to the status quo ante,
when states could criminalize abortion – as 30 did before 1973. The
Supreme Court would thus turn back the clock on women’s rights by a
half-century and open a Pandora’s box of further reactionary judicial
activism that overturned settled precedents.
That is because the
states’ rights doctrine is not limited to the issues of abortion and
privacy. It is a weapon of “lawfare” that
right-wing legal advocates are wielding in a
well-funded legal insurgency
targeting a gamut of issues from federal regulation to the electoral
system. Those who thought that the Civil War had definitively resolved
the balance of constitutional power in favor of the federal government
and national standards on fundamental rights must now think again.
Because it embraces dual sovereignty, federalism is an inherently tricky
balancing act. The US Constitution contains dueling principles: The
Supremacy Clause makes federal legislation the law of the land, while the
Tenth Amendment reserves unenumerated rights “to the States […] or to the people.”
An ingenious but problematic feature of the US Constitution is that it
is a contract among the states, originally 13 and now 50. It was the
states – not “We the People” – that reached a historic compromise in
1787 to strengthen the union, but not too much.
Yet, while the
states’ rights doctrine has some constitutional legs to stand on, they
are antique legs unfit for today. In retrospect, it was probably a
mistake to abolish only slavery after the Civil War; perhaps the states
should have been on the chopping block, too. While states were and
remain too entrenched for such an idea to take hold, a latter-day Alexander Hamilton might approve.
Federated states make eminent sense in terms of subsidiarity –
delegating purely administrative powers to subnational levels – but they
are poor custodians of basic rights. Although US states are often
extolled as “laboratories of democracy,” in Supreme Court Justice Louis
Brandeis’s memorable phrase, under the states’ rights doctrine they can
look more like incubators of local tyranny.
Responsible conservative
jurisprudence used to be grounded in the virtues of judicial restraint.
But these days, self-described conservatives subscribe to an incoherent
mélange of beliefs. These include the neo-Confederate “Lost Cause”
implicit in the states’ rights doctrine, the
“unitary executive” theory
of an imperial presidency espoused by former US Vice President Dick
Cheney and former US Attorney General William Barr, and the
anti-regulatory dogma of a few Silicon Valley moguls like Peter Thiel, who believe that free enterprise defines the public good.
These confused views result in an executive branch headed by a
president who is at once an unchecked emperor and an impotent
dogcatcher. The president has the authority to launch nuclear missiles
and wields vast emergency powers – Donald Trump
declared that he had powers nobody knows about. But executive agencies under the president
lack the authority to issue a national mandate for masks or vaccines to protect public health during a pandemic.
It is also striking that the Bill of Rights originally constrained the
actions only of the national government, not the states. The extension
of civil-rights protections against the whims of state governments
emerged through many decades of Supreme Court case law after the Civil
War. Most of these rights were secured by creative
judicial interpretation of the Fourteenth Amendment’s due process clause.
A related quirk of the US Constitution is the absence of an individual
right to vote directly for presidential candidates. The states-based
Electoral College, not the national popular vote,
decides the outcome.
This archaic arrangement provides a further opening for the states’ rights doctrine. A particularly virulent strain is the “
independent state legislature”
theory, which argues that the Constitution confers authority on a
state’s legislature, rather than its voters, to determine the state’s
official slate of Electors. This theory, if sanctioned by the currently unbalanced Supreme Court,
could be used to hijack a presidential election or, in case of a
deadlock, throw the selection of the president to the House of
Representatives under the
This theory, if sanctioned by the currently unbalanced Supreme Court,
could be used to hijack a presidential election or, in case of a
deadlock, throw the selection of the president to the House of
Representatives under the
Twelfth Amendment, thereby giving the states the final say. As the investigations into the January 6, 2021, insurrection have
shown, the states’ rights doctrine can be twisted into a tool for engineering a constitutional coup d’état.
The states’ rights doctrine is a vampire legal theory from America’s
inglorious past whose resurgence jeopardizes democracy and
governability. Today, it is clearer than ever why Benjamin Franklin,
when asked what form of government the Constitutional Convention had
chosen, supposedly quipped: “A republic, if you can keep it.”
Mark Medish, a member of the US National Security Council under
President Bill Clinton and a former deputy assistant secretary of the
Treasury, is a co-founder of Keep Our Republic, a non-partisan civic
organization.
WASHINGTON, DC – The old legal specter of the states’ rights doctrine is haunting the American republic. This zombie constitutional theory was once used to promote the cause of the rebellious slaveholding states before the US Civil War and to defend racial segregation in the former Confederacy for a century afterwards. Today, it again threatens both civil rights and the underpinnings of the American state.3