States Rights: Learning How to Lose
I’ve been reading some of the Anti-federalst papers and was pretty quickly convinced that sticking with the Articles of Confederation would have led to better outcomes on most issues. Of course, it would probably have led to a worse outcome on one really big issue: slavery.
Race seems to have always been the bane of states rights in the US. Southern states seeking to protect slavery and Jim Crow ultimately led to major gains in federal power in general, and a major loss in credibility to “states rights”. Even if the Southern states weren’t willing to do the right thing on moral grounds, it seems they should have let this one pass simply on pragmatic grounds.
Look at how the power of the Supreme Court has grown over the past 226 years even as the power of states relative to the Federal government has faded. How has the Court accomplished this? Largely by learning when to lose. They have consistently preserved and enlarged their power over the long run by being willing to lose one today. This is how they established judicial review, fought off court-packing, and maintain a good deal of independence from Congress and the President today.’
Conversely, states fought to the death on slavery and lost much of their power, then fought hard to preserve Jim Crow and lost much remaining credibility. It will take a long time to restore the power of arguments for states rights. I hope that the recent history of state versus federal legislation on gay marriage, marijuana, and health insurance has begun to convince liberals that states rights are not so bad after all.