States Gone Wild

Two columns ago, I admonished the Supreme Court for delaying unnecessarily in its gay marriage jurisprudence, and pointed to the confusion in Alabama as evidence for why quick action would have been better. The situation in Alabama has actually worsened since then, with the state Supreme Court now claiming that it need not follow the rulings of lower federal courts. This impasse will undoubtedly be resolved quickly, as soon as the Supreme Court rules on gay marriage in the summer. In the meantime, however, the Alabama Court’s actions serve as a disturbing reminder that the robust federal government we take for granted today has never been a guaranteed feature of the American political landscape.

In a recent article in Vox, Matthew Yglesias argued provocatively that “American democracy is doomed” because the ever-growing tension between the executive and legislative branches is too extreme for any system to handle ad infinitum. Yglesias claims that problems arise when both the President and Congress can plausibly argue that they are the true repositories of the people’s will.

This particular prediction about the demise of American constitutionalism may or may not prove prescient. What is true, however, is that power has long been vested in two distinct and competing bodies in the American federal system: The federal government and the states.

In theory, the relative power of each is pretty clear. According to Article VI of the Constitution,  “the Laws of the United States…shall be the supreme law of the land.” In practice things have not been so simple. Federal supremacy competed with the idea that the Constitution created a national government of limited, enumerated, powers.  In the 1830s, during the nullification crisis, South Carolina drove the country to the brink of war by arguing that it could declare federal law unconstitutional, and it was able to secure lower tariffs in the process.

Less than thirty years later, the nation was not so lucky, and fought its deadliest conflict because the slave states wanted to be left alone. Ironically, before the Civil War, the federal government had not exactly been a fount of truth and justice. The Kansas-Nebraska Act, the Fugitive Slave Act, and most infamously the Dred Scott decision all saw federal power used on behalf of slavery. The war began to change this dynamic. Congressional actions like the Enlistment Act, freeing the slaves who fought with the Union and their family members, morphed into the 13th, 14th, and 15th amendments, all of which set the precedent for the federal government to act as a decisive guarantor of national concerns and equal rights against sectional interests.

That evolution did not happen overnight. From the late 19th century until the 1930s, the Supreme Court continually thwarted the federal government from enacting laws against discrimination and laws regulating the economy because these efforts supposedly exceeded federal power. In time, however, the Court acquiesced to the exercise of federal power over these areas, and the right to supersede state authority. As Justice Ruth Bader Ginsburg, "The Notorious R.B.G.," wrote in her opinion in National Federation of Independent Businesses v. Sebelius, the “line-drawing exercises” the Court attempted earlier in its history—trying, for example, to distinguish between “direct” and “indirect” effects on interstate commerce—were “untenable.”

Unfortunately, these sensible lessons still elude us in some spheres. School desegregation provides a good example of what happens when the federal government finds its power bizarrely curtailed. In the 1974 case Milliken v. Bradley, the Supreme Court essentially ruled that a desegregation order could apply only to individual school districts. While not specifically an issue of states’ rights, this ruling shows that an unnecessary and unwarranted deference to local and state concerns, even when obstructing what Justice Thurgood Marshall termed “fundamental” rights, persists. With a stroke of the pen, the Supreme Court took the power out of their Brown v. Board of Education decision by severely curtailing federal enforcement.

Why do the Court’s more recent “line-drawing exercises” tend to fail just like its earlier ones? Because the issues concern national matters, for both practical and moral reasons. Regulating agricultural production, for example, in a globalized, industrial, heavily interconnected economy, cannot be accomplished piecemeal, state-by-state. Ditto for health insurance.

Furthermore, if the moral foundation of the United States is the idea that all people are “created equal, endowed by their creator with certain inalienable rights,” it makes no sense to let regimes of discrimination continue to thrive anywhere within its borders.

This moral imperative is what makes the situation in Alabama particularly disturbing. When the extent of the federal government’s writ encounters artificial and nonsensical limits, it generally spells trouble for minorities, for working people, for sensible economic regulation and, above all, for national laws and constitutional principles which reflect the best of our shared values. The Alabama Supreme Court is currently engaged in a challenge to all of these benefits of robust national government. It should not be allowed to succeed.

Nelson L. Barrette '17, a Crimson editorial executive, is a history concentrator in Winthrop House. His column appears on alternate Fridays.