Books March 2001

Getting States' Rights Right

The first comprehensive history of a much misunderstood doctrine
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States' rights, Vernon L. Parrington wrote in Main Currents in American Thought (1927), "was not an abstract principle but an expression of the psychology of localism created by everyday habit." No, Parrington was not a southern conservative, much less a blood-and-soil reactionary. A decidedly left-wing, in fact radical, midwesterner, he emerged as a prime architect of the "progressive" interpretation of American history. Forrest McDonald, who makes a similar point from a more conservative perspective, should nonetheless expect to be labeled a neo-fascist for writing, with eminent good sense, "Programmed into the human soul is a preference for the near and familiar and a suspicion of the remote and abstract."

The doctrine of states' rights provokes fierce negative responses and much knee-jerk denunciation, especially among those who do not have a clue to its meaning. Yet not all of the responses can be attributed to ignorance and ideological bias, for the doctrine's peculiar political history has had a dark side. As McDonald ruefully observes, twice in American history it became identified with discreditable causes—slavery and racial segregation—with which it has no intrinsic connection. Those who insist on an intrinsic connection and dismiss the doctrine as a mere rationale for reactionary politics have a serious problem: If the defenders of slavery and segregation rested their constitutional cases on states' rights, so did the progressives who strove to curb the power of entrenched corporate wealth. Thus Parrington wrote that the repudiation of states' rights by those who properly opposed slavery proved "disastrous to American democracy," because it removed the last brake on the power of big capital and surrendered the country "to the principle of capitalistic exploitation." Indeed, although we tend to think of federal intervention as "progressive" and the relegation of regulatory power to the states as "reactionary," the historical record shows nothing of the sort. After the Civil War the federal government, notably the courts, smoothed the way for big-business combinations ("pools," "trusts"), and it was the states that initiated restrictions.

Caricature of President Andrew Jackson Parrington and others largely interjected their reflections on states' rights en passant, and their work does not gainsay McDonald's claim that no one has attempted a comprehensive history of the subject. McDonald brings exceptional credentials to this task, for he ranks among the most learned and incisive of American historians, as readily at home with constitutional history and theory as with intellectual, political, and economic history. In particular he brings his considerable acumen to bear on knotty problems that may seem abstract but have grave and direct political consequences. The nature of "sovereignty" and the possibility and desirability of dividing it has absorbed political theorists since ancient times and especially absorbed the Founding Fathers, who made a Herculean effort to establish a republic of an unprecedented kind over a territory vast enough to constitute an empire. McDonald works through the theoretical formulations and attendant practical consequences with a sure hand. No small bonus: he writes well and has a gift for explaining complex theories in plain and often spirited English that readers without a Ph.D. can follow easily.

A word on his credentials: His array of groundbreaking books, beginning with seminal studies of the founding of the federal government and including a study of early American economic and political thought, would have amply justified his becoming president of one or all of the leading establishment historical associations and winning every prize in sight. (Do yourself a favor and at least read his illuminating The American Presidency: An Intellectual History [1994].) That he has not received the honors he has earned illustrates the extent to which the profession wallows in neo-McCarthyism, systematically ignoring conservative historians when it does not slander them. McDonald is conservative, but he cannot be pigeonholed. A bold, independent thinker, he demolishes the shibboleths of the right as readily as those of the left. In States' Rights and the Union he provides an indispensable history, replete with wise assessments, that may serve as a starting point for those, whether left or right, who eschew soapbox oratory and wish to form sound judgments on an intractable issue that has been central to American political experience and is destined to remain with us.

Because destined to remain with us it most certainly is, as the miseries that afflicted the Republican coalition of the Reagan-Bush years made clear. From the beginning only the prestige and political skill of Ronald Reagan papered over the ideological gulf that separated the many factions and tendencies of his coalition. The fault line in what under less able leadership would have been an unstable alliance ran deep. On the one side stood bold free-marketeers and libertarians—classic nineteenth-century liberals who continue to display their sense of humor by describing themselves as conservatives. On the other side stood traditional conservatives, who have always distrusted the market and who enlist their passions on questions of public morality and social policy. On the one side stood people with a rosy view of human nature that has become indistinguishable from the rosy view of the left in its celebration of the beauties of "human liberation." On the other side stood people who, if they do not necessarily uphold the doctrine of original sin, see humanity as sin-prone and regard the cry for "liberation" as an irresistible invitation to unleash the darker side of human nature. The one side thinks that everything, including religion and morals, should be a matter of consumer choice; the other side insists on the maintenance of firm moral standards. Here, however, we focus on the implications for federal-state relations. The traditionalists wanted the federal government stripped down to what they considered its bare essentials, with power returned to states and localities, but those who prevailed had another idea. Put baldly, it came to this: Are you crazy? We finally have the federal government under our control; good sense dictates that we use its power to advance our program. And it might have worked, had the Reaganites been able to put together a coherent program.

The amusing spectacle of the recent presidential vote in Florida should remind us of the persistence of the federal-state dichotomy. There was, after all, something delicious in hearing Al Gore's entourage and the left-wing justices of the U.S. Supreme Court, who normally do not even try to hide their enthusiasm for federal centralization, suddenly announce their dedication to states' rights, while the Republicans, who only recently converted to the doctrine, suddenly reverted to their historical commitment to federal power. Instead of leveling charges of inconsistency or, worse, hypocrisy, we would do better to reflect on the enduring tension among people in both camps who, in their more sober moments, recognize that the real quarrel concerns the proper balance between just claims.

The doctrine of states' rights has long been confused with separate issues—strong versus weak or unobtrusive government, and the relation of judicial to executive and legislative power. McDonald skillfully guides us through these problems, which the Florida fiasco again brought to the surface. For better or worse, John Marshall and his successors on the Supreme Court established the principle of judicial review, and the country has accepted it with surprisingly little resistance. Even so, the Court had to proceed slowly in the face of political resistance, and not until the Dred Scott decision did it forcefully reassert Marshall's doctrine. But it has gone largely unnoticed that the application of judicial review at the federal level did not imply its application at the state level. Before the Civil War the South, for example, had many distinguished opponents of federal judicial review who nonetheless championed the principle within the states. Conversely, as McDonald records, opposition to the principle resulted in the Confederacy's never establishing a Supreme Court. (Little in the recent events in Florida was more ludicrous than the pretense that the state supreme court could simply assert ultimate jurisdiction over a matter that the state legislature plausibly claimed for itself.)

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