This governing philosophy rebounded in part because it suited the interests of southern white supremacists. But a belief in states’ rights was also an expression of a long-standing conviction, common among northerners and southerners alike, that the Constitution endowed the states with an authority broader than that of the federal government. The courts called this authority the “police power,” by which they meant something far beyond the law-enforcement oversight that each state had. The police power conferred on states the right and the duty to look after the economic, social, and moral welfare of their citizens. Protecting citizens from epidemics ranked high on states’ to-do list; so did improving the moral fiber of the population, regulating corporate behavior in the public interest, and keeping suspect groups—single women living outside patriarchal arrangements, minorities, and “vagrants”—in line.
One can readily see the coercive dimension of the police power, and why southern states used it to buttress the legality of Jim Crow. But Supreme Court Justice Louis Brandeis was one of many who saw progressive potential in such authority. Brandeis hailed the states as America’s “laboratories of democracy.” A state may, Brandeis wrote in 1932, “try novel social and economic experiments without risk to the rest of the country." A leading figure in the Progressive movement before he joined the Supreme Court in 1916, Brandeis had been involved in several of these state experiments himself, reforming the life-insurance industry in Massachusetts, defending laws regulating female labor in Oregon, and improving employer-employee relations in New York. He discerned in these state-level experiments the building blocks of a more just and egalitarian America.
Brandeis’s progressive vision of state rule was never fully realized. Patchworks of state laws failed to provide effective regulation over a tightly integrated capitalist economy spanning the entire continent, especially once the Great Depression struck. Meanwhile, the regressive version of states’ rights persisted in laws denying freedom of religion, reproductive rights, and racial equality. As the nation reckoned in the 1940s and ’50s with the horrors of totalitarianism and the Holocaust, these state violations of civil liberties came to seem intolerable to many Americans. Thus, in the 1960s, the Supreme Court, under the leadership of Chief Justice Earl Warren, took on the states, throwing out virtually every state law seen as contradicting the Bill of Rights or the Fourteenth Amendment. The Warren Court’s actions, aimed at the states’ police power, also undercut the Brandeisian vision of states leading the way in social reform. Brandeis’s heirs now looked to Washington, D.C., for leadership.
Many white southerners never forgave the Warren Court for empowering the central government at the expense of the states. They joined Republicans in the North and West who were convinced that the expansion of federal-government power across the New Deal, World War II, and Great Society eras had violated the Constitution and was destroying American liberty. This was the Republican Party that Ronald Reagan forged. Over time, Reagan’s successors Newt Gingrich and Mitch McConnell stripped the central state of its dynamism, frustrating the efforts of Democratic Presidents Bill Clinton and Barack Obama to build on the legacies of Franklin D. Roosevelt and Lyndon B. Johnson. The federal government’s dysfunction, so evident in Trump’s handling of the pandemic, is not solely of his own creation; rather, his administration is a symptom of the paralysis that Republicans have sowed at the federal level for decades.