Federalism Now Means and End for Conservatives
A thought, or theory, came to me when I heard Texas Senator John Cornyn attack the Obergefell v. Hodges decision that legalized same-sex marriage during the Ketanji Brown Jackson confirmation hearings. Federalism, or states’ rights, has become both means and end for conservatives. Let me first give a brief review of federalism, then I will explain the previous sentence.
Federalism is the division or sharing of power between the federal government and state governments. It is what allows laws to differ from state to state if the federal government hasn’t passed a national law or if the Supreme Court or U.S. Constitution reserves the power for the states. For example, the Supreme Court refused to rule gerrymandering, the practice of rigging congressional district maps to benefit one party, unconstitutional and left it up to the states. The result: many Democratic-majority states have willingly turned redistricting over to non-partisan commissions, while many Republican-majority states have allowed corrupt, partisan state legislatures to keep rigging the maps to inflate their own party’s power. Federalism is also the reason why the minimum wage, voter registration and elections laws, and abortion regulations differ all over the country.
An introductory course on American government will explain that there are advantages to federalism such as policy experimentation. The states, students are taught, are the “laboratories of democracy” coming up with policy solutions that can then be passed at the national level if Congress decides to do so. For example, the Affordable Care Act (Obamacare) is based on a state law passed in Massachusetts when Mitt Romney was governor. The national “Obamacare” law is like 90% identical to the state “Romneycare” law. The ACA works better than the Massachusetts law because policymakers observed what worked well and what didn’t with the state law. But, just because a law works at the state level doesn’t automatically mean that it should get passed at the national level. That is the whole point of federalism, it is about which level of government gets to decide; the federal government or the states.
Another advantage of federalism is that it allows for a diversity of laws to reflect the different political cultures and majorities of each state. In other words, Democratic states can have more liberal laws and Republican states can have more conservative laws. Unless, of course, the U.S. Constitution, a federal law, or a Supreme Court case has ruled that something is a fundamental right that everyone is entitled to regardless of which state they live in. For example, the U.S. Constitution’s Fifteenth Amendment guaranteed the right to vote for all men regardless of race. States, in theory, were prevented from denying Black men the right vote. In practice, many states passed laws empowering voter registrars to use “literacy tests” to deny Black men their right to vote. Some states had such discriminatory practices, while others didn’t. Whether a Black man, or woman, once the Nineteenth Amendment was ratified, could vote was arbitrarily determined by which state they lived in.
When Congress passed the Voting Rights Act in 1965 it outlawed “literacy tests” nationwide to protect everyone’s right to vote regardless of where they lived. Federalism, or states’ rights, had allowed certain states to deny people their rights. The federal government intervened to establish a national standard that would protect everyone from their state government’s discrimination. Many of the same states that used “literacy tests” also imposed the poll tax to deny people their right to vote. In 1966, the Supreme Court ruled in Harper v. Virginia State Board of Education that poll taxes were unconstitutional in state and local elections. In summary, where once federalism allowed the states to choose their own laws, which resulted in people being denied their fundamental right to vote, the U.S. Constitution, federal legislation, and the Supreme Court all established national standards to protect individuals from their state governments.
Conservatives hate it when this happens. They want states to be able to do whatever they want. It’s why conservative Democrats seceded in 1861. The federal government was going to limit the spread of slavery in new states. It’s why conservative Republicans have been trying to take over the Supreme Court since 1973. The Supreme Court, in Roe v. Wade, legalized abortion during the first trimester nation-wide after ruling that abortion was a fundamental right that shouldn’t change based on which state a woman lives in. The same logic applies to inter-racial marriage and same-sex marriage. Where once laws differed from state to state, our rights as Americans have expanded over time through constitutional amendments, federal legislation, and Supreme Court cases to include everyone nationwide.
Conservatives resent it when the federal government expands everyone’s rights because it prevents them from denying people’s rights at the state level. They want states to have the power to outlaw abortion. They want states to have the power to ban same-sex marriage. But, conservatives learned their lesson after the Civil War and Civil Rights Movement. They know that state’s rights must be given by the federal government willingly, not taken by the states themselves. That is why they have plotted for decades and spent millions of dollars to take over the federal courts, gerrymander Congress, and strategize how to win the Electoral College even if they lose the national popular vote. Federal power is necessary to return power to the states. Recently, however, a new dynamic seems to be developing and it is imperative that we understand it.
Federalism is a means. It is what allows conservatives to do what they want in the states they control. If the Supreme Court were to overturn Roe v. Wade it wouldn’t make abortion illegal nationwide, it would make abortion a state issue again. All the Republican states would be free to outlaw the procedure entirely with no exceptions. If the Supreme Court were to overturn Obergefell v. Hodges it wouldn’t ban same-sex marriage nationwide, it would allow states to once again deny marriage licenses to same-sex couples. Federalism is a means for conservatives to “win” policy battles at the state level. But, crucially, that is not all.
Federalism is also an end. What will be the impact of Republican states outlawing abortion? Banning same-sex marriage? Making it easier to buy a gun than cast a ballot? Criminalize teaching about race, gender, or sexual orientation? Eventually, Democrats are going to start leaving increasingly backward and extremist Republican states. Places that otherwise might become competitive, or turn “blue,” might stay “red” instead. At some point, the liberal oases in conservative deserts will shrink. Democrats will start to leave the urban centers of North Carolina, Georgia, Florida, Texas, and Arizona. If things get bad enough, then people will literally flee. If it becomes apparent that the federal government is unable or unwilling to intervene to protect people’s rights from discriminatory state governments, then people will move to states where their rights are secure. We are already seeing families with transgender children contemplating the need to flee Texas. If federalism is the future, then Americans will start choosing more consciously what type of political climate to live in.
The exodus of Democrats from Republican-dominated states, especially potential swing states, will further exacerbate the structural advantages that Republicans already possess at the national level. The more state legislatures that Republicans control, the more gerrymandered congressional maps will become. The more concentrated Democratic-voters become in a small number of large and medium-sized “blue” states, the easier it will be for Republicans to control the U.S. Senate and win the Electoral College. I think Republicans understand this dynamic. I don’t believe the theatrics and extreme legislation being passed in states like Florida under Ron DeSantis and Texas under Greg Abbott are simply attempts to please the party base or lay foundations for presidential runs. I think they know that if they make it unbearable, emotionally and ideologically, for liberals to live in their states then they can reverse long-term political and demographic trends. The pain is the plan. In this scenario, the states become the “demoralizers of democracy.” The extremism, and the cruelty, is by design. They want people to leave. They want to shore up their majorities. And when they do, it will make it that much easier for them to control the federal government too.
And once their power at the national level is strong enough, these champions of federalism and states’ rights won’t hesitate to impose their will on everyone nationwide. They will outlaw abortion and ban same-sex marriage in all 50 states. They will pass national “voucher” legislation to publicly fund private, religious schools. These Christian Nationalists, from the local school board all the way to the Supreme Court, believe they are carrying out God’s will and they will stop at nothing. Believing that you are special, that you have a destiny, that you are saving something sacred (or making it great again), is an intoxicating feeling. The Republican Party is intoxicated with Christian Nationalism. As has been said, when fascism comes to America it will be draped in the flag and carrying the cross.
How can we prevent this slide into Christian Nationalist authoritarianism? Step up and be a voice of reason and inclusion in your community. Speak out against book banning at your local school board meeting. Volunteer to block walk or phone bank for a state house or gubernatorial candidate who will defend people’s rights and fight for opportunity. Convince your friends and family that voting in midterm elections is just as important as presidential elections. Demand federal legislation that will protect people’s rights regardless of where they live. Demand federal reforms that will prevent an extreme minority from wielding power over everyone else.
Tune in, turn out!