A host of recent actions by the Supreme Court has sent certain powers back to the states: abortion access, gun control and voting rights among them, — with more decisions expected to continue this trend in the Court’s next term.
The concept of federalism — the idea that the federal government’s authority is limited, and other powers retained for the states — is a cornerstone of modern conservatism.
But historically, states’ rights have also been used as cover to allow southern states in particular to discriminate against African Americans and other marginalized groups.
“It’s only really ever meant one thing in this country,” said Alvin Tillery, associate professor of political science at Northwestern University. “It means essentially giving states the right to abuse Black people. And that’s the only thing that it has ever really meant in the broader context of our history.”
Tillery notes that the notion of states’ rights was often used to justify the maintenance of slavery in southern states.
“People like (Charles) Pinckney (a Founding Father and slaveholder) in South Carolina, they argued that they had a right to develop their state on a slavery basis in the way that New York and Connecticut and Massachusetts had done,” said Tillery. “So the beginning, the entire history of the country, is bound up with this notion of states having the right to own and abuse Black people, but also Indigenous people as well.”
Joe Morris, partner at the law firm Morris and De La Rosa and the chairman of the board at the free-market think tank the Heartland Institute, notes that the doctrine of states’ rights has at times “been in bad odor in both the 20th and 19th Century.”
Morris said that in the 20th-century states’ rights often became seen as one of the main vehicles by which southern states sought to put the brakes on the “civil rights revolution.”
But he noted that in the 19th century, prior to the Civil War, the notion of states’ rights had also been deployed by free states to resist enforcing fugitive slave laws.
“There were lots of states, free states that did not want to impose slave laws,” said Morris. “That did not recognize the property rights as an individual right claimed by slaveholders in slave states and were resisting the federal government’s imposition of the legal duties to return fugitive slaves.”
According to Morris, the rights of individuals are better protected by the states rather than the federal government.
“It’s a conceit of the 20th century that’s just wrong that the federal government is the overarching protector of everybody’s civil rights,” said Morris. “We must look to the states in the first instance to define and protect civil rights. And if we do that, I think we are, we are safer, and our rights are more secure.”
Harold Krent, professor of law at Chicago-Kent College of Law at Illinois Tech and previously the longtime dean of the law school, says that the notion of states’ rights “is really another name for federalism, which is our basic structure of government which allocates some power to the states and some power to the federal government.”
Krent says it is inherently neither liberal nor conservative and is based on “the idea of having a check and balance and making sure that all power is not devolved in one entity. So it can be used for good and for bad reasons.”
Following the Supreme Court’s Dobbs decision that overturned Roe v. Wade and 50 years of precedent that had established a federal right to abortion, the court has indicated that in its next term it will consider a South Carolina case involving the so-called independent state legislature theory.
Long considered a fringe legal theory, if the court decides in favor of North Carolina Republicans it would give state legislatures broad authority to gerrymander electoral maps and pass voter suppression laws.
According to Krent, the case does not put forth a “coherent theory of federalism that I’m aware of.”
“So, these are subjective value judgments that we wish didn’t happen, but they do happen at the halls of the highest court,” said Krent. “And the highest court is taking us in a very rightward direction. And the question is where they’re going to stop?”
Tillery called the conservatives on the court “neo-Confederates.”
“It’s very clear that they’re trying to return power to the states to disadvantage marginalized groups,” said Tillery. “Because in their interpretation, the federal government should not have the power to protect these vulnerable populations.”