Published: February 27, 2009
In its early years, the U.S. wasn’t so much “United” as “States.” Over time, the federal government has become more powerful, but states have continued to assert their independence on everything from gun control to medical marijuana. In this hour, we ask: If we’re all Americans, why do states still matter? Pennsylvania Governor Ed Rendell describes how his state has left the feds in the dust when it comes to climate change policy. Historian Eric Foner discusses the successes and failures of the 14th Amendment, created to protect us from the states. And a long-haul trucker explains why she’d like to do away with states altogether.
Nan M. DiBello
I disagree with the notion that “power has steadily shifted to the federal government”. I find it helpful to recall that we have, not a unitary system of government, but a federal system of states and a national government (with the US Congress enjoying legislative supremacy — even if the members of Congress chose not to exercise that power). A strong case can be made that the power of the national government has increased without the power of the states diminishing. Several things contribute to the expansion of national government, among them, a) the Supreme Court has ruled in favor of the states in numerous cases; b) the historical division of spheres of influence (e.g., education within state purview and foreign policy at the national level) has persisted since the founding, c) there are political reasons for the states to defer to the national government, especially when it permits the states to keep taxes down. Just because there is more power at the national level doesn’t mean there is less power among the states, espcially when viewed from the perspective of citizens.
Although we are all Americans, it continues to matter where we live. For example, I live in New York State and work and dine in smoke-free environments, but, when I travel to some states, I am startled to find that people smoke in public places! More importantly, Americans do no enjoy the same investment in education, the environment, employment opportunities, or access to medical because there are significant policy difference among the states. In short, the federal system is a dynamic system with power increasing and even shifting and, since the Civil War, we have much more government — state and national — overall.
Robert Whealey
When I was 18 in 1948, Senators ,by an large,still represented their state interests, Mich. for autos, Wis. for dairy products. Since then every year corporatations and international banks have bought more and more elections. Democracy is only a thin shell of what existerd in 1948. The voters have lost faith in Congress. The power elite have become more and more rich and the working and middle classes have seen their popwer shirk.
John Ragosta
The Civil War, and post-Civil War amendments, evidenced a fundamental shift in the constitutional structure and power, leaving states’ authority largely, although not wholly, within the discretion of the federal power. (What I find most odd is that this view is most vehemently opposed by the same people who insist that the War was about states’ rights: If it was about states’ rights and the South lost, what does that tell you?) Setting aside administrative convenience and tradition, and a federal interest in encouraging experimentation in some areas, there is a persuasive legal argument that the states are largely irrelevant (Supreme Court decisions to the contrary are still very narrow). Isn’t the real issue, though, social? Why do we continue to see ourselves as Virginians, for example, as different from other citizens? Or is the premise wrong and our identity really mostly regional? And is even that regional/state identity rapidly eroding?
By the way, the corporate elite have become increasingly powerful, but I don’t know that increasing state power would tend to limit them. Start by reforming tax policy, and if you really wanted to make a dent, end the practice of treating corporations as “persons” for determination of legal rights. That, though, would be truly revolutionary.
Tony (BackStory Producer)
Quick — can you hum the tune of YOUR state song? No Wiki-peeking allowed.
Few of us can, which probably goes a long way towards explaining why Maryland has made it into the 21st-century with an official song that was already out-of-date by the middle of the 19th-century. Now, Old Line Staters are finally sitting up and taking notice, thanks to a bunch of fourth graders there. One of our favorite history bloggers (and fellow Charlottesvillain), Kevin Levin, recently drew attention to the ensuing brouhaha:
http://cwmemory.com/2009/02/24/politically-correct-fourth-graders/
Another favorite, Larry Cebula, has followed suit with some splendid state song trivia from the other side of the continent:
http://northwesthistory.blogspot.com/2009/02/sad-story-of-washington-state-song.html
And as long as we’re rooting around in the statehouse dustbin, can anybody explain to me once and for all how Oregon got its name?
Lindsay Barker
Turduken Federalism (mmmm, carnivorous)
Escher Federalism — which hand is doing the drawing!? which staircase is going up? Ow, my brain!
Fingerpainting Federalism (the more you work at it, the more indistinguishable it gets)
Trill Federalism (showing off my Star Trek nerd street cred)
Wetlands Federalism (’cause sometimes it’s mostly ocean, sometimes it’s mostly fresh, and the creatures that live there can’t survive without the mix being in constant flux)
Jeff Coon
I would go with Amoebic. The borders of Federal powers grow fluidly over time, State powers are like the internal structures with some freedom to move about as needed, and given that we essentially only have two big parties… Well frankly it’s always splitting…
Robert Johnson
Your listener Kirk Patrick asked if there were ways short of secession that States could oppose federal action, which lead to an interesting discussion of nullification. No mention was made of interposition, however. Neither of these remedies is viable, Jefferson and Madison’s machinations to the contrary notwithstanding. Andrew Jackson started to pound a stake into these doctrines, which the silver bullet of the Civil War eventually killed.
One State in particular DOES have a remedy other than nullification and interposition although not the one its current Governor proposes. Texas has the absolute right — not to secede — but to split itself into five states which would give it eight more US Senators, at least six of whom would probably be relatively unsympathetic to federal power (at least as exercised by our current administration). See Let’s Mess with Texas, 82 Tex. L. Rev. 1587 (May 2004).
There is one other remedy, which is difficult, but constitutional. Under Article V, the Legislatures of 2/3ds of the States can request a constitutional convention, which Congress is then obligated to call.
Brian Parkinson
I don’t think that the interview with Eric Foner does justice to the Slaughterhouse Cases. First of all, the decision upheld a state law that was enacted by the Republican-dominated Louisiana state government, operating under a Republican-crafted state constitution. If anything, that particular state law enhanced civil equality because it enabled black butchers to use a state facility (the slaughterhouse) on equal terms with white butchers. Moreover, the decision’s author, Justice Samuel Miller, was himself a deeply repentant former slaveowner who had freed his slaves well before the Civil War, joined the Republican party, and had been appointed to the Supreme Court by Lincoln himself. As Charles Lane, the author of The Day Freedom Died, explains, Miller limited the scope of the privileges or immunities clause of the Fourteenth Amendment with an eye towards enhancing the equal protection of the laws for blacks. As Lane argues, not only did the decision support a pro-civil rights state government, but just as importantly, no one at the time that Slaughterhouse was delivered could have foreseen the collapse of Klan prosecutions and the onset of white supremacy’s Redemption.
This wrinkle in the story of the Slaughterhouse Cases is important because it shows that the nullification of the XIV Amendment did not arise solely from a cowed Supreme Court, but from a deeper and more chaotic political struggle replete with unintended consequences. Most importantly, I think that the history of this decision highlights the peril of using strategically ambiguous language such as “privileges or immunities” in laws that govern a nation in upheaval, as the United States after the Civil War. The more chaos on the ground, the greater the premium on firm leadership and clear mandates.