Alex Blaze

Power to the... states?

Filed By Alex Blaze | July 24, 2009 12:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: Barack Obama, Claire McCaskill, DOMA, gun laws, gun owners, guns, Hillary Rodham Clinton, jon thune, marriage, Missouri, states' rights, Vermont

Clark at Show Me Progress gets it right: the states' rights argument has been primarily deployed in US history to justify slavery and then Jim Crow. It's about racism, and hearing the argument used by anyone on the left makes me cringe. It's an empty call to power for another government organization based solely on the fact that they're more likely to share your prejudices, not a coherent policy argument. Yeah, there are plenty of instances where states act better than the federal government, but those are rarely framed as "states' rights" - usually just as more effective governance.

So when Democrats started using the states' right argument to oppose Thune's gun rights amendment to the DOD reauthorization bill (that would have allowed people to carry concealed weapons over state lines, eviscerating the more stringent permit requirements some states have), it was interesting. Yes, that hypocrisy had to be pointed out. The bigger issue, though, isn't that states' rights are unalienable. It's that America's affinity for guns and America's history of institutionalized and cultural racism are inextricably tied together, so the contradiction between gun advocates' actions here (opposing states' rights when the states that get trampled on are those that regulate guns more) and their normal rhetoric (that states' rights are sacred) proves that they pretty much don't care about states' rights and have been using that argument to cynically push for whatever they want, regardless of what it does to states.

So Sen. Claire McCaskill (D-MO) either didn't get the memo or is more to the right than we thought, and gave a full conservative blast in favor of a state's right to oppose same-sex marriage:

"I think it is a bad idea for us in Washington to tell one state they have to accept what another state has done," she said. "This is a foot in the door that would require, for example, the laws in Vermont on gay marriage to be enforced in Missouri. It just kills me, these guys, that they would pound the tables about states' rights until, situationally, they don't want to talk about states' rights anymore."

Her argument couldn't be more ridiculous. This amendment wouldn't have been the "foot in the door" for future violations of states' rights. Federalism is already a pretty messy marble cake, with the federal government working in many areas of law and policy that they weren't working in 200 years ago and states taking on many responsibilities that the writers of the Constitution didn't even imagine at the time. It's not like this gun amendment would be the first "infringement" on states' rights, and it's not like it's going to be the last.

And let's not be so naive as to believe that DOMA exists to protect states' rights. While plenty of the conservative rhetoric around DOMA says that it's about states' rights, there's currently a lawsuit in the works that says the opposite: that it violates certain states' rights to determine who can marry. States don't have to recognize marriages they don't want to, DOMA or no DOMA. So the only relevant part of DOMA is the part about preventing federal rights for same-sex couples, which is really an assertion of federal power separate from the states.

In other words, I thought everyone pretty much knew that DOMA and various states' right arguments against same-sex marriage were really part of a system of power that punishes those who, for whatever reason, want to make their own McFamily. I didn't really think there was anyone outside of the fringe right who actually thought the same-sex marriage issue was about states' rights. (Even Clinton and Obama, during their campaigns, said that they were policy questions better left to the states, not a function of sacrosanct state power.)

McCaskill responded:

"In talking about my recent vote against the gun provision offered in the Senate, I wasn't clear when I stated that my vote against that provision was because it came down to a states' rights. I was expressing my frustration in that some who argue that states shouldn't respect the laws, certificates, or permits from other states when it's convenient, like with gay marriage, but then argue that they should when it's convenient on another issue, like gun rights. They can't have it both ways," McCaskill said.

Yeah, that sounds a lot better. Whether the issue was a genuine lack of clarity in her first statement (unlikely), speaking to different audiences (possible), or just a case of getting caught saying something stupid and responding to make the shitstorm go away (ding ding ding!), at least she ended up on the right page.


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Dennis in FL | July 24, 2009 1:53 PM

... or Senator McCaskill is a shrewd politician? It only take a few click of a mouse to determine that the NRA gives her an grade of "F." It also doesn't take that many clicks to determine that her position towards gay mrriage is moving further into the realm of support.
Every article I have read seems to be making the point that she is using opposition to gay marriage to defeat more gun control legislation. What if it is the other way around?

Is it possible that she is turning two of the rights favorite causes agaisnt each other? And not only that, she is doing it with the same argument for each (but coming from different sides)? If states rights are all so important in gun control - and no doubt about they are, then why are they not that important when it comes to marriage equality? And then when it comes the right to carry a firearm across state lines when 2 states have different laws, how can we then say states' rights are meaningless?

I am not sure I have made my point as precise as I would like so please forgive me.

Let's get a little clearer about the history of "states' rights."

Yes, in the past states' rights was a bastion of oppressive institutions -- not only slavery, but state religion. After the 13 colonies went independent, every one of them WAS a state, i.e. an independent nation that had confederated with 12 other states, and each of them staked out their ideological territory, because most European nations had state religions then. Most of the states hewed to establishing one official church (Anglican or Protestant), with just a few making their official ideology a little broader and more universally Christian than that. Well into the 19th century, the federal government had to pressure the states to give up "state religion" because it violated the First Amendment.

But state religion lingered deep in state attitude, and gave rise to oppressive conservative moralistic laws at state levels, like those relating to divorce, sexuality, birth control and abortion. So it's not surprising that today so many states have done the moralistic churchy kneejerk and passed their own anti-gay marriage legislation.

However, the winds of change are blowing, and now we see a nationwide movement of more and more states challenging the federal government on hot-button issues that are liberal, like medical marijuana and the right to die. This is definitely a good thing.

In short, "states' rights" is one of those swords that cut both ways. It's part of our system of checks and balances. Pressures for change from the state level can be a positive thing. We have to look at the whole picture, and not condemn states' rights just because, in the past, it was used to defend slavery. After all, the federal government tolerated slavery too, up to a certain point in time.

Robert Ganshorn Robert Ganshorn | July 26, 2009 7:54 AM

The federal government even used slaves to build the capitol dome during the Civil War. I wonder how they felt as they hoisted "The Statue of Freedom" to it's point at the peak of the dome. A slave laborer cast that very statue under his white overseer.

The federal government "hired" slaves from their owners as she chose not to own them herself.

Always, if you can, live in a state with laws you can stomach and opportunities on a level playing field.

This is a great post that hits on how quickly people jettison a principle for a political result. My favorite example is when Republicans in Congress who are staunch advocates of state's rights try to federalize tort law instead of letting each state decide how it treats damage awards and punitive damages.

But it most certainly cuts both ways. When these same R's try to pass a federal law to make it illegal for any state to recognize a gay marriage, what do we say? Let the states decide. If there was ever a pro-life political resurgence and the Congress wanted to pass a restrictive national law, what would we say? Let the states decide.

Honestly, but for the South's detestable adherence to segregation, and our need to trounce the phrase "state's rights" to make American equality something other than a sham, I'd be a HUGE fan of states' rights.

This at least allows the possibility of people moving to a state that will permit what others won't. And it at least provides 50 different political battlegrounds for change. With a single federal solution, you have no option but what the majority dictates. We might like having the feds run the show at this moment with a Democrat president and Congress, but wait until another Bush gets back in office. We'll be crying again for a return to "state's rights."

This is a great post that hits on how quickly people jettison a principle for a political result. My favorite example is when Republicans in Congress who are staunch advocates of state's rights try to federalize tort law instead of letting each state decide how it treats damage awards and punitive damages.

But it most certainly cuts both ways. When these same R's try to pass a federal law to make it illegal for any state to recognize a gay marriage, what do we say? Let the states decide. If there was ever a pro-life political resurgence and the Congress wanted to pass a restrictive national law, what would we say? Let the states decide.

Honestly, but for the South's detestable adherence to segregation, and our need to trounce the phrase "state's rights" to make American equality something other than a sham, I'd be a HUGE fan of states' rights.

This at least allows the possibility of people moving to a state that will permit what others won't. And it at least provides 50 different political battlegrounds for change. With a single federal solution, you have no option but what the majority dictates. We might like having the feds run the show at this moment with a Democrat president and Congress, but wait until another Bush gets back in office. We'll be crying again for a return to "state's rights."

The States Rights issue is one of the more complicated legal concepts in American Policy Jurisprudence. Constitutionally, the powers not enumerated in the Constitution as belonging to the Federal Government belong to the states. That this stricture has been violated repeatedly on both sides I will not debate.

Marriage regulation, not one of the enumerated powers, perforce then is one of the functions of the state.

However....then the 'full faith and credit' clause (Article IV, section 1) comes in, where the Costitution directs 'Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.'

There are spotty interpretations and ill-defined useages of the clause historically, most prominently in the Pacific Employers Ins. Co. v. Industrial Accident Comm'n decision "in the case of statutes...the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events."

Per se, this ruling by the USSC would make a Federal DOMA redundant in terms of protecting individial states from having to recognise Same-sex marriages performed in other states.

Now, the Gun Control issue is a completely different matter, made so by the Second Amenrment of the United States Constitution, with its own host of rulings. From a purely legal standpoint, Senator McCaskill's linking of them is an example of a sloppy policy statement based upon cursory legal research(his office counsel ought to be chastised and embarrassed publically)

Right on, Maura. AND one of the big issues around "full faith and credit," when it first came into being as a principle, had to be the legality of any given marriage.

In the Europe that our forebears fled from, a dissenting Protestant or Quaker marriage ceremony was not recognized as "legal" in a Catholic country. Nor were Catholic, dissenting Protestant or Quaker marriages recognized in England, where the Anglican Church recognized only its own marriages as legal.

Some of the 13 colonies were already starting to lighten up on this front, according to the research I've done -- but when our nation was establishing itself, it had to be made 100- percent clear that a marriage solemnized in one state would be recognized as legal (along with any and all property and estate issues) in all states, no matter what church kthe wedding took place in.

So it is very sad and very ironic, today, to see the more conservative states refusing to recognize same-sex marriages that are legal in other states. The churchy folks who push for those laws would have howled bloody murder if their own forebears' marriages had been the object of such toxic prejudices in our nation's formative times.