"States' rights" has gotten a bad name. This vital principle of American government has been linked to Dixiecrat racism and thug rule by local bosses. The reality is very different. States are the best agents for protecting the rights of minorities. The mashing of states into lifeless appendages of the federal government poses dangers for freedom and for the rights of the oppressed.
Mormons were hounded across our nation until they settled in Utah and the Rocky Mountain region. Once safe, Mormons became patriotic and productive Americans. Their faith was protected by a powerful local political influence. People who admired the values of Mormons could live happily in Utah; those who wanted a different lifestyle could live anywhere else.
Jews and Catholics left Europe to escape persecution. They found sanctuary in America, but more specifically Jews and Catholics found governments sympathetic to their culture, faith, and interests in the industrial, urbanized North. Jews, Irish, and Italians established their own version of America in those cities and states.
America is largely a quilt-work of specific national and religious groups which have deliberately chosen to live in those parts of America which suited them best and in which their brethren dwelt. Swedes and Norwegians chose the Great Plains; Germans spread across the belt of land from Pittsburgh to St. Louis which divided the north and south. Asian Americans, naturally, settled in Hawaii and the West Coast. This meant that almost any immigrant group could find a place, over time, to call home.
Only two major groups were left out in the cold. Blacks, who should have been a preponderant political force in a more diverse post-bellum South, were frozen out by the unity of Southern whites. Native Americans, often driven from their homelands, were not even citizens until the last century. Yet the salvation of both lay in states' rights.
Benjamin Harrison wished to admit Oklahoma Territory, roughly the western half of the State of Oklahoma, as a black state. Over time, Indian Territory, the eastern half of the state, would have been admitted as a state with a strong Native American political influence. American history would have been dramatically different if Harrison had gotten his wish.
A black state formed by western Oklahoma would have allowed black commerce, education, and politics to flourish. Congress would have had black senators and representatives, and those politicians would have been conservative Republicans, not liberal Democrats. When oil was found in Oklahoma, many of the oil millionaires would have been black wildcatters. The creation of a prosperous, respectable, cultured black state in the heart of America would have been an inspiration to all black Americans and solid proof to other Americans that blacks were a patriotic, diligent, and thoughtful part of American life. States' rights would have been the savior of black dignity, not the excuse of Jim Crow.
Slavery and civil rights for blacks was thwarted by federal power and advanced by state power before and after the Civil War. The odious Dred Scott decision federalized the issue of slavery so that the long progression of state emancipations, which would have continued without conflict until the total emancipation of blacks, was made a federal constitutional issue instead of a state legislative issue. The analogy to abortion is almost exact. Roe v. Wade took a state legislative issue and transformed abortion into a federal judicial issue.
Slavery and abortion, like murder and rape, were entirely within the province of state legislative power. Because citizens naturally prefer decent and sensible justice, murder and rape have always been illegal, abortion has generally been illegal, and slavery was consistently ended by state governments. The nuances of justifiable homicide, marital and statutory rape, permissible abortion, and other moral questions defy cookie cutter answers from above. States' rights allow the conscience of government to be much closer to the conscience of the governed.
The destruction of states' rights has coincided with the rise of horrific regimes. Political commentators in the 1930s noted Nazi racial policies, Nazi territorial ambitions, and Nazi internal terrorism. The salient political battle of Nazism, however, was not the Enabling Act or the practical abolition of national political parties; it was, instead, the remorseless destruction of state power. The closest Hitler came to organized armed resistance in his first year in power was within the Reich. Bavarian Premier Heinrich Held ordered the Bayerwacht to fight any Nazi or national military units which attempted to end the sovereignty of Bavaria, although after nine months Held saw his cause was futile. The other states and free cities had, one by one, been incorporated into a highly centralized Nazi government. Had other states held with Bavaria, the regime of Hitler might well have fallen long before he plunged the world into global war or murdered six million Jews.
What are the arguments against states' rights? Always, it seems, expediency is the objective. Slavery must be ended now (even though the practical liberation of blacks in the South took much longer than gradual emancipation would have.) Federal power during the Great Depression required instant, national action (although FDR led America into a deeper hole than he inherited.) Hitler needed "Ein Reich!" which meant local governments must effectively end (and Hitler left Germany without Pomerania, East Prussia, or Silesia and left the rump German Democratic Republic separated from the west for forty-one years.) Obama also needs instant action - - federal action - - with "help" to states connected to many strings of federal control.
True federalism, like true free markets, is messy business. It does not work perfectly; it is not planned from above; and it relies upon many low level decisions in place of a few high level decisions. Federalism or states' rights is a political market in which citizens, to a large extent, choose their governments and their legal systems. It is the best system for polyglot nations like America. Its only real enemies are those who want us to be governed without our practical consent.
