Thursday, July 9, 2009

A Non-Reactionary Case for States Rights

I recently finished reading Magnificent Failure, a book about the 1967 Maryland Constitutional Convention, which was chaired by my great-grandfather, H. Vernon Eney. The proposed constitution (which lost the ratification vote) had a variety of objectives, including stream-lining government, cleaning up the unwieldy incumbent document, reforming districting rules, and empowering the state government to meet the needs of an urbanizing and modernizing Maryland. Chairman Eney spoke often about the need for stronger state government in the face of the problems of urbanization and an expanding federal government. The report of the commission that was organized to study the need for a new constitution (which Eney also chaired) stated:

The most immediate threat to the welfare of the citizens of Maryland in the present age arises not from excessive power in their state government, but from a lack of power which prevents their state government from acting effectively... it must be recognized that... oppression can result as much from governmental
inaction, as it can from governmental action.
The commission (and later, the convention) position was that the growth of federal power was in part achieved by default, and attributable to the unwillingness of the states to use their inherent powers to meet the needs of their citizens. My personal view (and one that is very nearly expressed by Richard Homan, a Washington Post reporter who wrote about the convention at the time), is that this non-reactionary expression of states' rights - probably most forcefully held by Eney, of all the delegates - was doomed to failure given the charged climate of the late 1960s. Martin Luther King Jr. was assassinated on April 4, 1968 - only weeks before the constitution would be voted on by Marylanders. Baltimore was one of many cities ravaged by looting and riots, following the news. Governor Spiro Agnew received national attention for calling out the National Guard to suppress the riot, and brow-beating leaders in the black community for not taking a stronger stand against the violence. This position catapulted Agnew onto the presidential ticket with Richard Nixon in the next election. In this charged environment, the idea of "states' rights" pushed by convention delegates was unfairly maligned as a neo-Confederate expression of white privilege. Juanita Jackson Mitchell, the president of the Maryland NAACP and a delegate to the convention, singled Eney out for criticism on this matter.

Since 1968, the very term "states' rights" has been presumed to be reactionary and even "code" for racism. Ronald Reagan famously declared his support for "states' rights" at the Neshoba County fair in 1980, which many critics have identified as a thinly veiled sympathy for segregation. While I don't have time to address the Reagan incident here, I will say that I think the idea that "states' rights" is code for racism is lazy analysis and deeply flawed. It's very easy to cut corners by arguing that something you don't have evidence for is some sort of secret code, which by definition there is no evidence for. This reaction against the very idea of "states' rights" has prevented the states from maturing and reforming themselves into institutions that can support and serve their citizens, forcing the federal government to step in and provide solutions.

I was finishing this history of the Maryland Constitutional Convention at the same time that the health reform debate in Washington really began to pick up steam. It made me think of two things; first, the success of the 1996 welfare reform beyond anybody's expectations, and second, the rush to a national health reform despite promising developments in certain states.

In 1996, with Newt Gingrich's Republicans in ascendancy, the Clinton administration angered many liberals by instituting a welfare reform that would cut benefits and tighten eligibility requirements generally, but provide the states with enormous latitude for implementing these and other reforms in the spirit of Brandeis's conception of the states as "laboratories of democracy". Policy analysts have thoroughly gleaned lessons from the success stories, and these lessons have subsequently been adopted in other states. Welfare rolls were reduced tremendously by the reform, and welfare is now able to target the families that need the most support. In contrast, most health reform plans we hear today are proposals for change at the federal level. This is occurring despite the fact that some of the most promising reforms (for example, by Mitt Romney, a Republican governor of Massachusetts) are already being implemented at the state level. Instead of betting on the best federal solution, why don't we learn the lesson that Clinton taught liberal Democrats in the 1990s: forcing the states to take responsibility for reform does not preclude reform - and if any reform must occur at the federal level, experimenting with various approaches at the state level can provide valuable insights before we bet the farm on a single solution.

I'm not terrified of an active federal government, like many are. And there are real problems with health care that may merit government intervention. But we need to look back to the Clinton administration and consider the possibility that there is a role for wider states rights in this reform process.

"States' rights" should not have a negative connotation in this country. For a lot of people, I don't think it does. But for some of the most reform-minded people, the idea of state power is still highly suspect. Historically speaking, I suppose I understand that impulse. But I still don't think it's right. The Maryland Constitution of 1968 was not eventually ratified, but its attempt to empower the state of Maryland to solve the problems of Maryland shouldn't be lost on us. Perhaps I'm biased because of my admiration for H. Vernon Eney, but I think we can still derive lessons from his relatively conservative, card-carrying Democratic, thoroughly reformist approach to states' rights today.


  1. I think that this discussion makes a strong point about the role of states and state governments, which is often overlooked in today's politics; simply witness the disparity in voter turnout between federal and state-level elections. Education, for example, has traditionally been a matter for state jurisdiction. In the past, this has allowed a great disparity in quality of education across America; a phenomenon which limited the opportunity for youth in less affluent states. However, critics of No Child Left Behind have seen that attempting to impose an overarching federal standard on education has been over-restrictive on states with already strong education systems.

    In this context, I think that there is room (and need) for greater state initiative on issues like health care and education. I think this discussion comes back to a fundamental question of balance between states rights and ensuring adherence to the spirit of the constitution (e.g. to prevent the manipulation of states rights to justify maintaining racially based inequalities). With this in mind, I'd argue that at this time when we are considering substantial overhaul of programs addressing such critical issues there is room for greater and better coordination of efforts between the federal and state governments.

  2. Wow, what a shitty post. Throw some more Marxist jargon in there for style.

    Also, stop ruining Cafe Hayek. Your poorly planned comments derail every single goddamn thread. No one cares what you say.

  3. Surely Michael is a socialist out to tarnish the reputation of thoughtful libertarians by writing the above post under the pretense of being a Cafe Hayek reader?

    Alas, in my heart of hearts, I doubt it.

    Moderate his post out of existence if you want to, Daniel. I sort of like the idea of keeping it up as a testament to small minds everywhere.

  4. Michael - by "derail" perhaps you mean "respond to the actual substance of the Cafe Hayek posts (albeit not always agreeing with you or the hosts), which is certainly more than I can say for your comments here - which don't seem to show any indication of having read this post.

    Watch the language too.


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