Return to States' Rights
14th Amendment:
". . . nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The North won the Civil War. Black Americans are Americans, and states need to protect equality.
Then the long war of resistance began. The weapons of that war are "states' rights" and federalism.
In some arenas of life federalism works well and makes sense. Imagine 20% of the students living in college dorms are smokers, while 80% of students want to live in a no-smoking dorm. The university might ban smoking in the dorms; majority rules, and besides, smoking is a nuisance. That decision leaves 20% unhappy. There will be cheating, smoking police, and conflict. Another tactic is for a university to label 20% of the dormitory space as "smoker dorms," and the rest no-smoking. Students can choose the dorm situation they prefer. The net happiness of everyone is probably increased.
If a reader is so opposed to smoking that this example doesn't make my point, try this. Imagine 20% of the students want a dorm with an 8:00 p.m. curfew and quiet period to assist undisturbed study; 80% think that is ridiculous. Can the university designate a quiet dorm to accommodate the studious? The point isn't about smoking or curfews. It is about recognizing people want different things and the federalism principle increases the happiness of everyone. One size doesn't fit all.
We are undergoing a major reversal of national policy as regards constitutional rights and state discretion. The impetus is coming from the political right, and it is showing up in their success getting Federalist Society judges placed on courts, especially the Supreme Court. It is returning power to the states in areas relating to race, abortion, gender, gerrymandering, and access to voting. They are using federalism as the mechanism for rolling back equal protections of racial, sexual, and other marginalized minorities.
U.S. Senator Michael Braun, Republican of Indiana, was on a rhetorical and philosophical roll. He was touting federalism as a happy solution to the politics of abortion. The Supreme Court is already letting Texas effectively ban abortion. Other states are following suit with a similar mechanism of enforcement by private lawsuits.
He was specifically asked by reporters if he agreed with Supreme Court decisions that determined there was a constitutional right for married couples to use contraception (Griswold v. Connecticut) and for inter-racial marriage (Lovings v. Virginia). He said abortion "should never have been federalized." He applied the broader federalism philosophy to the contraception and inter-racial cases as well. He said letting states "express themselves" is the "beauty of the system." He went on:
Well, you can list a whole host of issues, when it comes down to whatever they are, I’m going to say that they’re not going to all make you happy within a given state, but we’re better off having states manifest their points of view rather than homogenizing it across the country as Roe v. Wade did.
Oops. This wasn't a mistake. It was a "tell." He was stating a political philosophy and had not thought through its implications when it resulted in an unpopular policy outcome. Indiana voters don't want to outlaw inter-racial marriage. Braun realized his error.
But Braun's slip here is a window into a larger philosophical movement in the GOP. The Court has already agreed that states can gerrymander congressional and state legislative districts to reduce the voting power of minorities. Several justices agree that state legislatures have plenary power to assign electoral votes regardless of the outcome of the presidential election in that state. There may be a majority for that. Nationally voters seem to have accepted a right to same-sex marriage, but there are some states, and certainly areas within states, where that is unpopular. The constitutional right of same-sex marriage is recent and perhaps unsettled within a conservative Supreme Court. This could become a matter for local control.
Use of contraception by married couples is a federal constitutional right, but one based on a thin excuse of marital privacy. The Griswold decision has strong critics. They say it may be a popular policy outcome, but it is not a right found in the constitution. I don't expect any state to ban use of contraception. However, the constitutional right to contraception could be a test case for reversing a multitude past decisions.
There are two limiting factors on widespread return of power to the states. One was revealed by Senator Braun. It is bad politics to say a state should have local control to outlaw something one's own voters think is a right. The other is guns. There is significant overlap between the people who want states to be able to ban abortion and the people who do not want states to be able to ban guns. Supporters of states' rights have that in the back of their minds. Let's not get carried away here.
Federalism isn't a principle. It is a device for getting the policy outcome one prefers.