Exclusive: In the U.S. system, the “supreme law” of the land is set by the Constitution and the federal government, though states, counties and cities have wide discretion over local matters. But problems arise when right-wingers start espousing the notion of “state sovereignty,” says Robert Parry.
By Robert Parry
During her half-term as governor, Sarah Palin would refer to the “sovereign state of Alaska.” In doing so, she was like some other governors who call their states “sovereign” as a rhetorical show of defiance against the federal government.
For many years, this practice has been popular among the states of the Old Confederacy and, more recently, in states that were not slave-owning but are now led by right-wing governors who believe the federal government has no business telling the states how to run their affairs.
But the “state sovereignty” rhetoric today is moving beyond defiant words, as the Republican Party asserts that states should be allowed to change their voting rules to suppress the voting rights of blacks, Hispanics, Asian-Americans and young urban whites who are seen as likely Democratic voters.
The Republican intent is to transform much of the United States – not just the Old Confederacy but pretty much all states under GOP control – into a modern-day land of Jim Crow where the ballots of white rural voters will be given extra weight over black, brown and young urban voters.
This initiative, which is now before the U.S. Supreme Court in a case seeking to gut the Voting Rights Act, is essentially that the “independent sovereign” rights of states should trump the rights of racial minorities to vote, despite the Fifteenth Amendment, which gives the federal government the explicit power to protect those voting rights.
Based on oral arguments last week, many Court observers now believe that the five right-wing justices will strike down the heart of the law, Section Five, which requires jurisdictions with a history of racist voting laws to get prior approval from the federal government before they change their voting rules.
One of those right-wing justices, Anthony Kennedy, indicated that he felt Section Five was an unconstitutional infringement on Alabama as an “independent sovereign.” In other words, Alabama’s constitutional right to do what it wants should trump the right of minorities to participate fairly in the democracy.
However, while there is specific language in the Constitution prohibiting states from infringing on the right to vote, there is no language referring to states as “independent” or “sovereign.” That wording comes from the Articles of Confederation (which governed the country from 1777 to 1787), but was expunged by the Constitution, which transferred national sovereignty from the 13 original states to “We the People of the United States.”
Beyond dropping the language about “independent” and “sovereign” states, the Constitution also contains a long list of prohibited activities by the states, including bans on coining money, entering into treaties and acting against a foreign country (Article I, Section 10). The Constitution further dictates the structure of state governments, requiring them to operate as republics (Article IV, Section 4). Most significantly, the Constitution makes federal law “supreme,” giving federal courts the power to strike down state statutes deemed unconstitutional.
That provision in Article VI states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
In other words, the Constitution constrains what the states can do and sets rules for their structures. If, say, a state wanted to become a monarchy, the federal government would step in and say no. When 11 slave states tried to secede from the Union after Abraham Lincoln’s election in 1860, they were declared in rebellion and were militarily defeated by a federal army.
Other provisions in the three amendments following the Civil War – the Thirteenth, abolishing slavery; the Fourteenth, requiring equal protection under the law; and the Fifteenth, prohibiting racial discrimination in voting – further sent a clear message that the states were obliged to submit to the sovereignty of “We the People of the United States.”
However, it has remained popular in some circles to assert that the states possess something close to equal sovereignty with the federal government. Some legal scholars use the phrase “dual sovereignty,” suggesting that neither side is dominant, much like grade schools give out “participation trophies” for field-day competitions.
While such language may make the advocates of “states’ rights” feel better, it isn’t really true. By definition, “sovereignty” means “having supreme rank, power, or authority.” It is, in that sense, a superlative. There can be only one “sovereign” and – under the U.S. Constitution – it is clearly “We the People of the United States” and the officials that we elect to national office.
Of course, states have some rights as do towns and individuals. You can claim, I suppose, that you have some “sovereignty” over yourself, that your family has “sovereignty” over your home; your county board has “sovereignty” over local affairs; and your state has “sovereignty” over much state business.
However, all those “sovereignties” are limited by law – and the “supreme” law of the land is the U.S. Constitution and the federal statutes that are enacted by the U.S. Congress and signed by the President.
Normally, of course, no one would care when Palin and other right-wing political figures call their states “sovereign” as a show of defiance. The problem comes when they start believing it. In that sense, “state sovereignty” is a bit like the honorific title “Kentucky colonel.” No one minds guys calling each other “Colonel” – unless they start taking it seriously and leading soldiers into battle. Then real harm can be done.
Similarly, real harm can derive from the myth of “state sovereignty,” especially now that the Right has captured the majority of the U.S. Supreme Court. Anthony Kennedy, John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito are political activists seeking to impose a Neo-Confederate interpretation on the Constitution.
These justices may call themselves “strict constructionists” who believe in a literal reading of the Constitution. However, if they destroy the Voting Rights Act based on Kennedy’s thesis about “independent sovereign” states, they will be seeing language in the Constitution that isn’t there.
Nowhere in the document is there wording about states being “independent sovereigns.” And, the words aren’t there because the Framers – the likes of George Washington and James Madison – willfully removed them, with prejudice as a court might say.
General Washington despised the concept of state sovereignty viscerally because of his experience as commander-in-chief of the Continental Army, which often suffered when states reneged on promised support. Madison saw the Articles of Confederation threatening the nation’s hard-won independence and holding back the nation’s economic growth.
As the chief architect of the Constitution, Madison gave the federal government sweeping authority over a wide variety of national matters, including commerce. He wanted to give Congress direct power over state laws but settled for federal courts having the authority to review and strike down state statutes. [For more on this history, see Robert Parry’s America’s Stolen Narrative.]
Yes, I know today’s Neo-Confederates make much of the Tenth Amendment, which asserts that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
But the Right’s historical revisionists miss the key point here. The Constitution already had granted broad powers to the federal government so the states were left largely with powers over local matters — and even those actions could be struck down if they were found to violate federal law.
To further appreciate how modest the Tenth Amendment is, you must compare its wording with Article II of the Articles of Confederation, which is what it replaced. Article II stated that “each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated.” In other words, the power relationship between the states and the federal government had been flipped.
Still, today’s Neo-Confederates make mischief with the inconsequential Tenth Amendment, transforming it into some grand governing principle when it was just a rhetorical sop to the Anti-Federalists, who fiercely opposed the Constitution because they recognized what it was, a major shift of power from the states to the federal government.
Also, throughout American history, “states’ rights” have been associated with some of the most shameful episodes, including the secession of the Confederate states in defense of slavery and later the imposition of racial segregation across the South through legal trickery and terrorist violence.
Surely, the federal government has not been free from fault. It has too often participated in or tolerated racist and other anti-democratic acts, but it also has – during some of the nation’s proudest moments – intervened on behalf of human rights as enshrined in the Constitution. That history is now being tested again.
[For a limited time, you can purchase Robert Parry’s trilogy on the Bush family for only $34. For details, click here.]
Investigative reporter Robert Parry broke many of the Iran-Contra stories for The Associated Press and Newsweek in the 1980s. You can buy his new book, America’s Stolen Narrative, either in print here or as an e-book (from Amazon and barnesandnoble.com).