States Rights? Yes, But What Is A “State”?

I recently exchanged several emails with a Big Democrat friend of mine on the subject of states rights. I quoted an old professor of mine, David Potter, who famously (at least to historians) said that if you scratch a states righter you’ll find someone in the minority. As usual, I was tweaking my BD friend a bit by pointing out that the two parties seem inconsistent about states rights with increasing frequency, often playing musical chairs as they swapped positions.

He, as usual, replied that the Democrats were perfectly consistent because none of them believed in states rights, an belief that was not dented by the reams of evidence I sent of Democrats defending what appear to the naked eye to be states rights against Republican attempts to overrule them (Florida [2000 election], Massachusetts [gay rights], No Child Left Behind, etc., etc.)

The Democrats might not “believe” in states rights, I replied, but that didn’t prevent them from making states rights arguments when they found it convenient (just as, I acknowledged, Republicans’ stated belief in states rights often didn’t prevent them from favoring the national over a state policy on various issues).

As it happens, I forgot that I had written a long (and, to me, still interesting) post on this very subject several years ago. I encourage you to read it now, although I’m going to quote a bunch of it below.

I argued there, somewhat counter-intuitively if I do say so myself, that the two parties were not, in fact, as inconsistent as they appeared.

…. I think the partisan disputes over the proper role of states’ rights in Florida and Massachusetts — and as we shall see, Colorado — do indeed have something significant in common, but it is not, as Conventional Wisdom would have it, conservatives hypocritically abandoning federalism when it suits them. Nor were the liberals as inconsistent in siding with the states in these examples as is often charged.

In both Florida and Massachusetts liberals viewed themselves, and were viewed by most commentators, as ironically (since they are usually on the other side) upholding the principles of federalism and states’ rights. But is that really what they were doing? I think we need to answer with a Clintonian question: it depends on what the meaning of “state” is. Notice: in both cases what they meant by “state” was the highest court in the state. This identifying a state with its courts is not dictated by anything in the Constitution, and in fact in Florida it was particularly inappropriate, As I argued here, the Constitution, in Article I, Section 4, specifically

authorized state legislatures to set rules and regulations governing elections. The Florida Supreme Court did not interpret those rules; it set them aside and substituted new rules, extending some deadlines, ignoring others, etc. The intervention of the Supreme Court, on this view, was necessary to rein in a runaway, clearly partisan lower court.

If a state’s governor and its Constitutionally empowered legislature set one set of rules governing elections and the state’s Supreme Court attempts to rewrite those rules, it is not self-evidently clear that all believers in states’ rights should recognize the state court alone as embodying the state.

True, at the moment there is no legislative enactment in Massachusetts that conflicts with what the Supreme Judicial Court has done re a right to gay marriage. Well, almost none: Mickey Kaus points out that

Massachusetts had made a democratic decision–it had decided to do nothing. The court is forcing the state’s democracy to make a different decision, under the threat of having its action declared unconstitutional if it’s not the action the court likes.

Still, it is clear that when liberals now celebrate what the state of Massachusetts has done regarding gay rights what they are really celebrating is what the state’s highest court has done.

….

In short, … conservatives often turn to a remedy of national legislation on social issues only because of what they see as unrepresentative, illegitimate, and overreaching decisions of liberal state courts. In this liberals are being perfectly consistent, since most of their “cultural conflict” agenda (gay rights and racial preferences being two leading examples) would not fare very well in most legislatures or, as we have seen in Colorado with gay rights and California and Washington with racial preferences, referenda over constitutional amendments.

Thus, I concluded in that older post,

I have a corollary to propose to David Potter’s comment about states’ rights and national minorities: when liberals attempt to fly the flag of states’ rights, look closely to determine whether what they are really defending is the opinion of a state court. And when conservatives appear to be flaunting states’ rights, look with equal closeness to determine whether they might be attempting to remove a court-imposed obstacle to majority opinion in that state.

I confess that I’m still rather taken with my argument that liberals implicitly — indeed, often explicitly — argue that courts, and courts alone, embody the state, but I now see that I didn’t go far enough. (Those dang liberals! They have an uncanny ability to make attacks on their outrageous positions seem like puffballs … by moving on to even more outrageous positions.)

Eugene Volokh points out that two justices of the Massachusetts Supreme Judicial Court, Greaney and Ireland, in the recently decided Schulman v. Attorney General (allowing a vote to proceed on an anti-gay marriange state constitutional amendment), actually argue that the Massachusetts Supreme Judicial Court, not the people of Massachusetts, is the ultimate sovereign. That is, they claim that the Court can restrict the ability of the people to amend their constitution.

Even I am amazed at the audacity of this argument.

Say What?