Jamelle Bouie commented in the New York Times this week that the point of the U.S. Constitution was to subordinate states to the federal government—and notes that the Civil War further established this understanding of the Constitution.
I echo his reasons for taking note of this point: there are states in the United States now that are pushing very hard towards their own autocracies. In many of the battleground states of the 2020 elections, Republicans are trying to gain control of election boards or election laws with the overt intention of overturning results in federal elections that don’t favor them. Republican governors are using their authority to suppress information they don’t want to be public, and deploying their National Guard units as security for private enterprises. States are passing laws that openly defy existing federal authority or precedents and increasingly showing contempt for the entire idea of a single national legal and political system.
That is, when it is under the democratic control of Democrats, in whole or in part. That’s the real problem. There might actually be something exciting or generative in the idea of 50 states that had more freedom than they have had for much of U.S. history to do substantively different things with their public policy. What stops that from being at all interesting or attractive? First, that the current drift of Republican policy in the states they dominate makes clear that they have absolutely zero regard for the rights or preferences of anyone outside their electoral base. Even a weaker or less controlling federal government has to be available in all 50 states to enforce equal rights for all—and any policy framework that changes something fundamental about life, liberty and the pursuit of happiness for people who have made their lives in a state that used to have different rules and policies ought to be viewed as a change that has tremendous gravity—something that is only done with the greatest reluctance, never for short-term political gain or to score cheap points. Second, an even bigger issue is that the GOP has already made it clear that devolution of power to the states is only on offer to Republican-controlled states, that the moment they have control of the federal government again, they’ll use every executive, legislative and judicial capacity they have to slap down Democratic-controlled states trying to pursue public policies with the same assertiveness and scope as Republican ones.
It’s not a consistent idea about the appropriate level for governments to hold power, or even a consistent idea about the powers that no government should have. DeSantis or Abbott have no compunctions about slapping down Floridan or Texan cities or communities that want to go their own way even as they assert that local authority is more responsive to the will of the people than federal authority can be. The only idea the current GOP has is that the only legitimate holder of power is the GOP, and that if the GOP has power, it should be able to do anything at all.
When people talk about a coming American civil war—or a civil war they believe is already effectively underway—they are often rebuked officiously by other commenters who point out that there is no clear territorial divide of the kind that made the previous U.S. Civil War possible. (Bouie has been one of the writers critical of ‘civil war’ talk on this and other grounds.) To some extent, this confidence in the impossibility of civil war rests on a flawed understanding of the relative unity of North and South in the 19th Century conflict—most states had internal regions or communities who were loyal to the other side, and many had communities or groups that were indifferent to or ambivalent about the war itself. When you look at states like Texas, South Dakota, Wyoming or Florida being more or less seized by the current Republican base and instituting public policy strikingly at odds with contemporary national norms—such as Wyoming becoming a tax haven for shadowy international assets—you realize that many GOP-led state governments would have no compunction about mobilizing their states for a wider conflict regardless of whether many of their own citizens dissented.
But that’s not the scenario that unnerves me the most when I look at the current wave of selective devolution of national authority. What I see as more likely than an open civil conflict is a return of jurisdictions and localities that openly but informally assert their primacy in matters of justice and rights. We’re already part-way there, because to some extent we never left that status quo. Sundown towns, vigilante threats from armed men, local police who stop whomever they like and confiscate property via unregulated civil forfeiture procedures and much more have persisted in some form or another even through the civil rights movement and the relative empowerment of federal authority after 1945. But there’s sadly plenty of ground ahead for what amounts to warlordism, to a country where many citizens really cannot safely travel to some localities nor traverse much of the land in between, where the guarantees of the Constitution will mean little. If our present movement in that direction begins to really roll downhill, I have little confidence that there is either power or political will available to stop it.
Image credit: Photo by Obie Fernandez on Unsplash
And, I would add, it will hurt to be a person who is or can be pregnant in many of these “sovereign” Republican states. That’s already happening. Besides Texas, take a look at Idaho’s new abortion law: where the family of your rapist can sue you over an abortion. Because…rights of the inseminator are the rights of the state.