“Are we a nation of states? What’s the state of our nation?” raps a breeched and booted Alexander Hamilton just before helping to launch the Revolution in Lin-Manuel Miranda’s blockbuster musical. Hamilton’s question is as relevant today as it was at the nation’s founding. Are we a single nation or a conglomeration of self-governing states? Which entity holds more power over the citizenry, the states or the fed?
Since the election of Donald Trump, legislators in progressive states have pushed back against restrictive federal immigration policies, the attempted Muslim-focused travel ban, and federal inaction on climate change, to name a few instances. But states asserting their rights is nothing new. Blue-state resistance follows eight years of red states suing the Obama administration over what they considered federal overreach on immigration, health care, and public policies. Texas alone sued the Obama administration almost 50 times. Historians claim that states asserting their right to govern is itself politically neutral. Is states’ rights simply a tool for the party out of power, or is there something more momentous afoot today?
Shacking Up
The idea of local governance has been engraved in our national character from the start—you might even say before the start if you factor in the native governments operating locally long before colonists arrived. The 13 colonies that began displacing those indigenous cultures imported British ideals of government to the continent. But their imperial ruler was at least seven weeks away by ship, and Britain treated colonial governance merely as a form of patronage. The colonies themselves were remote from each other before roads and canals: It took three days to get from New York to Philadelphia by stagecoach, five or six to get to Boston. And they were founded on different ideals: Massachusetts was settled by Puritans, New York by the pragmatic Dutch. Maryland was for exiled Catholics, Pennsylvania was Quaker, and Rhode Island was a refuge from official religion. They evolved independently, with different climates, economies, laws, and cultures. By the time of the Revolution, governance was already happening largely in the separate colonial assemblies.
The famously weak Articles of Confederation were an attempt to join together, forged in the necessity of fighting the British. But localism ruled the day. Each state retained “its sovereignty, freedom, and independence,” leaguing together only “to secure and perpetuate mutual friendship and intercourse.” Think of it as a friends-with-benefits situation, but the friends were actually shacking up. Eventually, someone was going to raise the issue of making the relationship more official, especially when there were bills to pay. When that happened, the Constitutional Convention was called.
In the ensuing debate, the Federalists argued that the United States should have a strong central government, while the Antifederalists held that it should be a federation of semi-independent states. (It didn’t go unnoticed that a federal system had worked for more than 150 years for the Iroquois Confederacy.) Hamilton’s frenemy James Madison insisted in the Federalist Papers that the government could be both nationalist (the desire of the Federalists) and federalist (confusingly, what the Antifederalists wanted):
The proposed Constitution, therefore, is, in strictness, neither a national nor a federal constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.
That has what Rap Genius might call “complex flow,” but it doesn’t exactly clarify matters. Nor does the Constitution itself resolve the issue—and that was intentional. The Framers embraced what historians call a “federal vagueness.” The clearest statement, the Supremacy Clause in Article VI, declares that, in conflicts between state and federal laws, federal laws are “the supreme Law of the Land.” That was the only clear attempt to lay down the rules of the relationship.
And indeed, the adoption of the Constitution, forming a more perfect union, can be seen as a kind of marriage between states. E pluribus unum: out of many, one.
Domestic Disputes
Antifederalists like Thomas Jefferson had many reasons for resisting a strong central government: They feared a loss of liberty—one motivation for getting the Bill of Rights added to the Constitution—and they worried a central government could devolve into aristocratic rule. They doubted that a nation so large and diverse could have a relevant and responsive central government. And they fretted about money. As a sassy Thomas Jefferson raps in Hamilton: “Ooh, if the shoe fits, wear it. If New York’s in debt, why should Virginia bear it?”
But the wedding went forward, despite the cold feet, and, since then, state challenges to federal authority have been a regular feature of American politics, from both the left and the right. Northern states considered the Fugitive Slave Act of 1793 unconstitutional, since it usurped states’ prerogatives to pass their own laws about treatment of fugitives; in response, many free states passed “personal liberty” laws contravening it. And, in 1798, after President John Adams signed the Alien and Sedition Acts, making it easier for immigrants to be deported and increasing the time it took for them to earn the right to vote, James Madison and Thomas Jefferson wrote resolutions for Kentucky and Virginia invalidating the federal laws. In 1832, South Carolina nullified protective tariffs on imported goods passed by the federal government, declaring them unconstitutional. This led to a showdown with President Andrew Jackson, and contributed to the Southern conviction that the central government was eroding state sovereignty. Wisconsin’s Supreme Court then voided the new and extreme Fugitive Slave Act of 1850, an action that the U.S. Supreme Court subsequently struck down.
The language of state sovereignty flew fast and thick as the nation hurtled toward the Civil War, often as an attempt to defend slavery, and the secession of 11 Southern states has frequently been spun as an issue of states’ rights. But the right of secession is a separate question from the proper division of power between state and federal governments under the Constitution, which makes no provision for divorce. Just as marital disputes are often really about money, Southern states were fighting to defend an economic system that depended on the morally indefensible practice of profiting from unpaid labor.
The Civil War had a profound effect on federalism. The constitutional amendments passed in its wake all limited state power. The Thirteenth Amendment (1865) abolished a state’s right to tolerate slavery; the Fourteenth (1868) prohibited states from abridging the personal liberties guaranteed by the Constitution; and the Fifteenth (1869) blocked states from denying or abridging the right to vote “on account of race, color, or previous condition of servitude.” Of course women would stay disenfranchised for another 51 years. But it was under Republican leadership that the federal government first came to be seen as the guarantor of personal liberties should states seek to limit them.
In 1901, Republican Theodore Roosevelt became president and initiated a period of progressive reform that further consolidated power at the national level, particularly to break up trusts. President Woodrow Wilson, a Democrat, continued many of Roosevelt’s reforms, passing anti-trust legislation and reforming banking. But it was Democratic President Franklin Roosevelt who went all-in on expanding the role of the federal government. The New Deal created farm subsidies, federal unemployment insurance, Social Security, and a host of infrastructure and stimulus programs to directly boost the economy. Under Roosevelt’s leadership, Democrats embraced a strong federal government as an instrument of progressive reform.
After World War II, President Harry Truman attempted to carry these reforms to another level with his Fair Deal program, which proposed creating national health insurance, funding public housing, nearly doubling the minimum wage, and, controversially, legislating against discrimination—including integrating the armed forces. Outraged Southerners formed the States’ Rights Democratic Party—more commonly known as Dixiecrats—with the campaign slogan “Segregation Forever.” The party split from the Democrats to nominate its own presidential candidate, Strom Thurmond, in 1948.
While the Dixiecrats did not last long as an official party, they provided a platform from which Southern Democrats could continue to fight federal civil rights legislation. The Southern Manifesto, published in 1956 in response to Brown v. Board of Education, decried the Supreme Court’s enforcement of integration as an attempt to “encroach upon the reserved rights of the States and the people.” This attempted use of states’ rights to defend Jim Crow laws would tarnish the doctrine for decades.
The Dixiecrat revolt split the Democratic Party, a division that presidential candidate Richard Nixon used to his advantage. Nixon’s “Southern Strategy” brought Southern Democrats into the Republican Party by promising, behind the scenes, to roll back civil rights enforcement. And that is how the party that had crafted the most significant expansion of federal power began invoking states’ rights to resist national policies such as workplace protections, social services, and environmental regulation. Nixon’s “New Federalism” sought “a major reversal of the trend toward ever more centralization of government in Washington,” devolving power to the states on welfare, health care, urban planning, and housing. By the time Ronald Reagan was elected, it had become conservative dogma that centralization was bad and states’ rights were good.
But states’ rights continued to be invoked by progressives too, especially on social issues. Case in point: state marijuana legalization. The Obama administration‘s response to this challenge to federal power was to ignore it: The Rohrabacher-Farr amendment prohibits the Department of Justice from using federal money to interfere with medical marijuana sales in states where it’s legal. This brand of localism infuriates some conservatives, as do local attempts at progressive reform in red states. Some states have even pulled rank on municipalities: North Carolina lawmakers voided Charlotte’s attempt to ban LGBT discrimination, and Alabama state legislators struck down Birmingham’s attempt to set a higher minimum wage. Texas governor Greg Abbott—who bragged about how often he sued the Obama administration for infringing on states’ rights—told a conservative think tank that the state should pass a broader law pre-empting progressive municipal efforts. Nevertheless, in the eyes of liberals, states’ rights had acquired a reputation as a right-wing tactic—and a racist dog whistle.
Can This Marriage Be Saved?
The election of Trump has done to federalism what it has done on so many fronts: increased the stakes, amped up the volume, and called long-held assumptions into question. With Republicans in control of the White House and Congress, states’ rights suddenly looked like one of the few viable tools of resistance available to progressives. California quickly took it up. “We will happily assert our autonomy and jurisdictional authority,” declared lieutenant governor Gavin Newsom in The New Republic. “We’re not going to be timid.”
Nor was the new administration timid about retaliating, threatening to withhold federal funds from “sanctuary cities,” and warning of a federal crackdown on marijuana. The Federal Energy Regulatory Commission, led by a new Trump appointee, overruled a decision by the New York Department of Environmental Conservation to block a natural-gas pipeline. Ideological infidelity became the new normal—to the dismay of those who value loyalty. Michael Tanner, a senior fellow at the conservative Cato Institute, praised the Trump administration in the National Review for withdrawing federal protection for transgender students on the grounds of states’ rights, while denouncing its intention to “punish” states that legalize marijuana. Eliot Spitzer, the former governor of New York, proposed that state attorneys general take on Trump by “asserting the primacy of states’ rights,” but felt guilty about the betrayal: “How do we go back to all these cases where we’ve been arguing for executive discretion and say, ‘Oops, we didn’t mean it’?”
Others embraced the irony. In a tongue-in-cheek but pointed essay in The New Republic, author Kevin Baker proposed a Bluexit. Pointing out that the 487 counties that went for Clinton in 2016 generate nearly two-thirds of the nation’s economic activity, he argued that liberal America should enact a trial separation. “We won’t formally secede, in the Civil War sense of the word,” Baker declared. “But we’ll turn our back on the federal government in every way we can … and devote our hard-earned resources to building up our own cities and states. We’ll turn Blue America into a world-class incubator for progressive programs and policies, a laboratory for a guaranteed income and a high-speed public rail system and free public universities.”
Baker’s snarky proposal brought an amused nod of approval from the Wall Street Journal—and a chorus of criticism from the left excoriating the piece’s dismissive tone and its betrayal of liberal principles. But Baker showed just how refreshing it could be for liberals to stop asking what’s the matter with Kansas and start focusing on things they have the power to change. Don’t most marriage counselors suggest you stop trying to change your partner and direct that energy toward being happy with yourself?
Much of the failure to see eye to eye here is cultural, and always has been. From the earliest debates over slavery to Dixiecrat demands for segregation, the South’s embrace of states’ rights sprang from what the Southern Manifesto called the region’s “habits, customs, traditions and way of life.” Today, blue states and cities are unapologetically defending their customs and way of life—whether it be embracing immigrants, banning discrimination, or taking concrete steps to address climate change. If progressives spend the next few years acting locally, if blue states stop trying to legislate from the top down and instead model change on their own turf, perhaps, as with gay marriage, the rest of the nation will follow. Or maybe, as has been the case with California’s emissions standards, their sheer numbers will mean the rest of the nation will have to fall in line. This could lead to greater understanding and exchange between the polarized factions of American politics—or it could further entrench those factions in their political and cultural echo chambers.
A fantasy persists that Americans are united by a common culture, even though we are increasingly unable to describe what that culture might be. (Football? Not anymore.) Before he became a rap star, Hamilton saw one thing clearly: What would bind the nation together would be not culture but money. His banking system—call it the national joint-checking account—was the glue that transformed a nation of states into a future global superpower. The financial tensions he was addressing still exist today, only now it’s red states being accused of not pulling their weight. If West Virginia’s in debt, why should New York bear it? Of course the only states that can talk seriously about walking out are the ones with globally significant economies. Calexit, anyone?
When my own first marriage was on the rocks, my husband and I decided to separate our finances to ease the pressure. He made more money than I did, so he drank a nice wine with dinner every night. I bought pinot grigio by the gallon, which we both dubbed “pinot egregious.” Not surprisingly, this didn’t help matters, and the marriage went downhill fast.
Can our national marriage be saved? Some would say the state of our nation has grown so dysfunctional it’s time to start a conversation about conscious uncoupling. After all, we’re not just talking past each other: Increasingly, those on the right and left cannot even agree on what the basic facts are. That is profoundly destabilizing. We don’t have to see eye to eye on everything, but marriage, like democracy, is an ongoing process of negotiation, requiring the negotiating partners to share some kind of fundamental agreement about what’s true.
The tug-of-war between state and federal governments is nothing new. But lack of shared reality is. Rediscovering what beliefs we still hold in common may be the key—if not to happily ever after, then at least to standing by each other and working to forge a joint future.
A version of this story originally appeared in the March/April 2018 issue of Pacific Standard. Subscribe now and get eight issues/year or purchase a single copy of the magazine. It was first published online on March 9th, 2018, exclusively for PS Premium members.
