Connect the Dots 101

“For the political and economic elites of the Jim Crow South, states’ rights, federalism and the counter-majoritarian institutions of the American system were the shields used to defend their interests from national authority…

Here in the present, the conservative movement has, through the agency of the Republican Party, also weaponized federalism, states’ rights and the counter-majoritarian institutions of the American system. But they’re not using them to defend a particular, localized social order; they’re using them to create and extend one beyond the borders of so-called red states to the rest of the country…

In its next term, the Supreme Court will take up the “independent state legislature doctrine,” a theory that, if affirmed in the Constitution, would give state legislatures power to shape federal elections, up to and including the power to circumvent the voters when they make a choice the legislatures don’t like….

States’ rights, national reach…”

In full:

One way to understand the work of the Republican Party and its six-member majority on the Supreme Court is to think about the American political system in terms of its defensive and offensive potential. Here, a historical example is in order.

For the political and economic elites of the Jim Crow South, states’ rights, federalism and the counter-majoritarian institutions of the American system were the shields used to defend their interests from national authority.

With a controlling stake in the political fortunes of the Democratic Party through the presidential nomination process, a de facto veto on legislation in Congress through the filibuster and a favorable Supreme Court ruling in Plessy v. Ferguson, Southern elites could keep their system of race hierarchy and class domination away from the reach of the federal government. They could not impose a system of national segregation but they could — for most of a century — stop federally mandated desegregation.

If the intellectual father of Southern reaction was the slaveholder and statesman John C. Calhoun, then this was a kind of “concurrent majority,” an informal version of the system he imagined at the end of his life, where “each division or interest has, through its appropriate organ, either a concurrent voice in making and executing the laws or a veto on their execution.”

When Calhoun developed this idea, however, the South was not on the defensive. Southern elites held powerful positions in every branch of government. They elected presidents, dominated the Senate and could claim the Supreme Court as their own. And as political antislavery sentiment took hold in the North in the decade before the Civil War, these Southern elites — operating at the apex of their power — used those same tools of states’ rights, federalism and the counter-majoritarian institutions of the American system to try to extend and entrench their power over the nation.

The Fugitive Slave Act of 1850 did not require Northern states to condone slavery, but it did force them to assist in apprehending escaped slaves. The Kansas-Nebraska Act of 1854 did not impose slavery in the territories, but it did give slaveholders a chance to expand the institution through plebiscite. And in 1857, although the Supreme Court chose not to invalidate state laws forbidding slavery in Dred Scott v. Sanford, it did say that the Constitution could not and would not recognize the rights of Black Americans.

Two different generations of Southern elites used many of the same tools. But where one wielded them like a sword, the other used them like a shield.

Here in the present, the conservative movement has, through the agency of the Republican Party, also weaponized federalism, states’ rights and the counter-majoritarian institutions of the American system. But they’re not using them to defend a particular, localized social order; they’re using them to create and extend one beyond the borders of so-called red states to the rest of the country.

To that end, conservatives on the Supreme Court have used their majority to either shield Republican-led states from federal interference — invalidating much of the Voting Rights Act of 1965 and freeing lawmakers to engage in extreme partisan gerrymandering — or to prevent Democrat-led states from encroaching on conservative priorities like gun rights or an expansive vision of religious freedom — so much so that it swallows the Establishment Clause of the First Amendment.

The court has also freed Republican-led states to try extend their authority beyond their borders. In the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health, overturning Roe v. Wade, Republican lawmakers have introduced bills that try to curb abortion with limits on the right of travel between states.

In its next term, the Supreme Court will take up the “independent state legislature doctrine,” a theory that, if affirmed in the Constitution, would give state legislatures power to shape federal elections, up to and including the power to circumvent the voters when they make a choice the legislatures don’t like.

States’ rights, national reach.

Much of this is hypocritical and inconsistent. But to point to hypocrisy and inconsistency among Republican lawmakers and Republican justices is to miss the larger picture: a government of reactionaries, by reactionaries and for reactionaries.

Or, put a little differently, Heads we win, tails you lose