Wednesday, November 14, 2007

it's 2007: "states' rights" =/= "racism"

although i agree that the history of racism in conservatism should not be minimized or ignored, i find that obsessing over points that were only true 50 (or 25) years ago to make a point about current affairs to be disingenuous.

sure, back in the days of jim crow, segregationists used to cry "states rights!" in attempt to fight back federal power, so that states who wanted to implement segregationist policies could do so.

but it's not 1957 (or 1982). it's 2007.

since then, liberals have used the concept of federalism in the realm of legalizing medical marijuana and same sex marriage. the concept of federalism, at this point in time, serves proponents of these issues quite well. in fact, it is the best tool available.

federalism is merely a concept, and it is not tied to a particular ideology.

the concept that "states rights" is a thinly veiled code for promoting racist policies is about as relevant as the argument that marriage is a patriarchal institution whereby women become property (a truly idiotic antediluvian argument that i've heard more than once from radicals in queer studies programs).

past tense, folks. past tense.

live in the present! that's all i'm asking.


The Pedant said...

Federalism is the new libertarian buzzword, and I agree with it in that regard.

FM said...

of course libertarians would be drawn to the concept b/c less federal power = less government. and libertarians don't like government.

but don't you remember sandra day o'connors opinion in that medical marijuana case (gonzalez v raich) where she basically says "hey, the states are a petri dish" (or something to that effect). wait... i have it here:

"This case exemplifies the role of States as laboratories. The States' core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens. Brecht v. Abrahamson, 507 U.S. 619, 635, 123 L. Ed. 2d 353, 113 S. Ct. 1710 (1993); Whalen v. Roe, 429 U.S. 589, 603, n. 30, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977). Exercising those powers, California (by ballot initiative and then by legislative codification) has come to its own conclusion about the difficult and sensitive question of whether marijuana should be available to relieve severe pain and suffering. Today the Court sanctions an application of the federal Controlled Substances Act that extinguishes that experiment, without any proof that the personal cultivation, possession, and use of marijuana for medicinal purposes, if economic activity in the first place, has a substantial effect on interstate commerce and is therefore an appropriate subject of federal regulation. In so doing, the Court announces a rule that gives Congress a perverse incentive to legislate broadly pursuant to the Commerce Clause -- nestling questionable assertions of its authority into comprehensive regulatory schemes -- rather than with precision. That rule and the result it produces in this case are irreconcilable with our decisions in Lopez, supra, and United States v. Morrison, 529 U.S. 598, 146 L. Ed. 2d 658, 120 S. Ct. 1740 (2000). Accordingly I dissent."

FM said...

best "federalist society" moment - the glbt group at law school was debating the federalist society on the solomon amendment, and i piped up "hey, why is the federalist society FOR the expansion of federal power to control private institutions' behavior in this case?" and they all sort of stood there like "uhhhhh...."

The Pedant said...

Well, on the latter statement, I make the statement every time I have to even pretend to support the Bush administration:

"well, we all just started giving the President too much power back in FDR's time, and nobody ever stopped to think, 'hey, if there was a really crazy unscrupulous guy in there, we've just deemed all sorts of nastiness constitutional!'"

In other words, "you liberals used the spending power to yank up the drinking age, so we can use it to prevent you from saying no to recruiters."

upyernoz said...

but isn't the debate, at least the debate referenced in the obsidian wings post, about 1980 and not 2007? the reason people are "obsessing" about it is because recently there has been an attempt by conservatives to claim that reagan was not appealing to racism when he talked about "states' rights" in the 1980 presidential campaign. in fact, there's quite a lot of evidence that he was.

but either way, this is not about what "states' rights" means today. it's essentially a historical argument, over an attempt by conservatives to erase a black mark on their hero's record. in that sense, what the term means in 2007 is the thing that isn't relevant.

emily1 said...

i agree with upyernoz. when one actually takes account of when, where and under what circumstances that reagan used the phrase, it's pretty damned clear who he was talking to and what he was talking about.

FM said...

fair enough. i added "25 years" to my post. and provided a link to an example.

in any event, my point is that the term "states rights" has gotten a bad rap, and we shouldn't be afraid to appropriate the concept.

upyernoz said...

my point is that the term "states rights" has gotten a bad rap, and we shouldn't be afraid to appropriate the concept

i sort of agree with you, sort of don't. i mean, you're right that being pro-states rights these days doesn't necessarily mean you are pro-jim crow.

but at the same time i also think that very very few people actually care about states rights as a principle in its own right. as most a handful of law professors, historians and a couple of libertarians. but that's about it.

for most people, "states rights" is a cover for a position on something else. in the 1950s and 60s, "states rights" became a codeword for anti-civil rights because the pro-civil rights position was becoming the mainstream consensus and as a result the anti-civil rights position was losing its legitimacy. so people who were against civil rights laws couldn't stand up and say they were against civil rights laws anymore. instead they had to hide behind a different concept, federalism.

similarly, people for medical marijuana are for medical marijuana for reasons that have nothing to do with the tenth amendment.

and i'm strongly in favor of permitting states to legalize same sex marriage for reasons that have nothing to do with states rights. if i'm in court and trying to overturn the defense of marriage act, i might use a "states rights/federalism" argument. but that's just a legal tool. but that's not really why i am pro-gay marriage. if i talk primarily about states rights instead of the real issue, it means that i think there's a weakness in the real issue and that states rights is a stronger way to go.

federalism is a legitimate position to take, but the fact is a lot of people who make federalism or states rights arguments are often trying to obscure the real reasons they are for or against something.

so i'm not for reviving the states rights argument. i'd prefer that public debate addressed drugs and gay marriage issues head on. relying on a "states rights" argument is only necessary when you're in a position of weakness.

FM said...

"but that's just a legal tool."

exactly! i think we're in agreement there. :)

"federalism is a legitimate position to take, but the fact is a lot of people who make federalism or states rights arguments are often trying to obscure the real reasons they are for or against something."

but in order to move things through the courts to one's advantage, using a full arsenal of tools, including appropriating different schools of statutory and constitutional interpretation, is fair game.

yes, the public debate should center on why medical marijuana and same sex marriage is sound policy and why both would bring more good and minimal harm, but courts aren't interested in hearing policy arguments. they're more likely to get horny over arguments like "the states' police powers include defining criminal law to protect the health, safety and welfare of their citizens. we should not stretch the limits of the commerce clause to eclipse that power, especially if we're not even sure if folks in california prescribing ganja to cancer patients affects interstate commerce." a normal person would be like "WTF?! you've gotten high off your own argument!" but a dude in a robe who doesn't really live in the real world may go "whoa! by golly! this is the realm of states' police power, not the commerce clause!"

upyernoz said...

now i'm confused. i thought you were talking about the use of the term "states rights" in public debate, not the courtroom. as you just said, courts are their own special universe. all i'm saying is that i think "states rights" type arguments in the public sphere are a way to obscure the real issue (civil rights, gay marriage, drugs, whatever), so i would rather people just directly addressed the actual policy question rather than frame it in some abstract "states rights" argument.

and i have no problem with people using the commerce clause, the tenth amendment, vague appeals to "federalism" or whatever in court. it pays the bills, after all.

so i guess we don't disagree at all.