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America's post-roe constitutional abyss

May 13,2022 - Last updated at May 13,2022

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 criminalise 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 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 jeopardises 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 organisation. Copyright: Project Syndicate, 2022.

www.project-syndicate.org

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