About States’ Rights Bias and SCOTUS Legitimacy

National Archives photo: Atlanta, Georgia, 1864

Long before the 13 colonies sought to break away from British rule and form the United States, slavery was well established in America.  Most of the 56 delegates to the Second Continental Congress who signed the Declaration of Independence in 1776 were slave owners, according to Politifact. 

The first governing document for this new nation was the Articles of Confederation, which was drafted in 1777 and ratified in in 1781.  It did not establish a federal government as such, with an executive branch or a president.  The central authority was the “United States, in Congress assembled,” where the vote of nine states was required to take most important actions. 

Under Article II, each sovereign state retained every power not expressly delegated to the Congress. The result was a weak central government with limited enforcement power, which was likely favored by states whose economies depended on slavery.   The Articles, however, proved to be inadequate to deal with foreign affairs, among many other shortcomings, so a Constitutional Convention was convened in 1787.

Of the 13 states that were represented at this assemblage, six were slave states and 25 of 55 delegates were slave owners, according to American history website gilderlehrman.org.  Most of the delegates did not support the practice of slavery, according to this site, but it was not abolished in the Constitution for fear that the slave states would not join the union.  According to a classroom.com article, “the issue of slavery was instrumental in the creation of distinct “states’ rights” and “federal rights” enumerated in the tenth amendment.”

All constitutional amendments have been proposed by a two-thirds vote in both chambers of Congress.  The original 1787 document and its first 12 amendments became the law before 1860 when slave states were quite powerful.  And recorded history makes it clear that these states still had significant influence on amendments ratified after the Civil War. 

In fact, all constitutional amendments but the 27th were passed by Congress before 1972 when the Senate still had some powerful conservative southern politicians who were adamant supporters of segregation and states’ rights.  Among the most influential of these were Senators James Eastland (Miss.) – sometimes called the “Voice of the White South” – and Strom Thurmond (S.C.) – who filibustered both the 1957 and 1964 civil rights acts.

The current Supreme Court’s majority of six conservative justices are committed states’ rights advocates too.  All were handpicked by the powerful Federalist Society and appointed by Republican presidents.  Members of Society are primarily wealthy conservatives and libertarians who chose these justices because they are “originalists” who believe the words of the Constitution should be interpreted for what they meant, or were intended to mean, at the time they were written.  

I submit that this theory of interpretation, which is called originalism, applies bygone – and yes, even segregationist – thinking to current issues.

For such a profound document, the Constitution is quite brief.  Including the Bill of Rights, it is 14 pages in pdf file format and only 21 pages with all 27 amendments.  I find it hard to believe that the Founding Fathers thought of this seminal document as static and inflexible like the originalist conservative justices are interpreting it.  Rather, I believe they drafted the Constitution to be both the letter and the spirit of the law of the United States and intended that it should be interpreted in a way that best promotes the democracy it established.

Like the English common law, the Constitution has expanded based on precedents.  Some of the more liberal Supreme Court decisions, however, are an anathema to conservatives and libertarians.  They want low taxes and minimal federal regulations so they can operate without federal government interference.  That’s why they lobby for a strict, originalist interpretation of the Constitution that favors states’ rights and limits the powers of the federal government – which is exactly what I believe the slave states demanded in 1787.

Well, conservative Supreme Court justices have evidently listened to them in making numerous decisions, many of which – according to critics – smack of partisanship, including:

  • Citizens United v. FEC (2010), which opened the flood gates of corrosive corporate money in politics,
  • Shelby County v. Holder (2013), that gutted parts of the federal Voting Rights Act,
  • Rucho et al. v. Common Cause et al. (2019), which prevents federal courts from reviewing partisan gerrymandering by state legislatures,
  • Dobbs v. Jackson Women’s Health Organization (2022), which eliminated the constitutional right to an abortion, giving legislative authority to the states.

After the Shelby decision, numerous Republican-controlled states immediately enacted strict voting laws designed to suppress minority voters, just like former slave states attempted with Jim Crow laws after the Civil War.  And, after the Dobbs decision they rushed to enacted laws to ban abortion.

Arguments for states’ rights have been ongoing since 1777.  I believe historical evidence shows, however, that they were codified in the Constitution at the insistence of slave states to shield their slavery practices from federal oversight and were used by segregationists after 1865 to disenfranchise Black citizens.

Certainly, the Constitution reserves certain rights to the states.  Still, I am convinced that decisions by the Supreme Court’s conservatives, like Shelby and Dobbs – that appear to be politically motivated and that allow states to weaken American democracy – are expanding rights for states that are deeply rooted in the practice of slavery. 

And in my view, these justices are dangerously undermining the Court’s legitimacy.

About eeldav

I am a retired corporate attorney who has lived in both Europe and Asia. While working my responsibilities took me to over 40 countries in Europe, the Middle East, Africa and Asia.
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