The idea of state sovereignty is a founding and corrupting myth in U.S. law and politics.
The founding slave owners made sure to protect their human property. They left the "all men are created equal" rhetoric aside and built into the constitution two key protections: their voting strength would be enhanced by adding 3/5 of a vote for each person held in bondage; and escapees would be rendered back to their owners by the states according to the Constitution's notorious Article IV Sec. 2 fugitive slave clause.
History's then most deadly war ensued. The post-war Amendments abolished slavery (13th), promised the equal protection of the laws (14th), and the right to vote just as afforded to white men (15th).
But the post-war Black Codes known as Jim Crow rendered those rights almost a nullity for a century. Only with Brown v. Board of Education in 1954 was national authority firmly asserted to begin the restoration of the equal justice intended by the post-war amendments.
Since then the Supreme Court has affirmed national authority - with significant exceptions. The Violence Against Women Act was declared an overreach by the court. The connection to the empowering commerce clause was too tenuous the Court held. No thought was given to the idea that the national government was empowered to protect women however it deemed necessary.
Now the Trump/Barr administration has deployed federal forces to Portland - a city that neither sought nor needed their assistance in the view of the elected mayor.
David Lurie discusses the overreach and dangerous precedents that William Barr's Justice Department is setting. - gwc
Bully Boy Bill Barr is America’s Ultimate Chaos Agent
by David R. Lurie // Daily Beast, July 28, 2020
While Donald Trump now grudgingly acknowledges that the coronavirus won’t magically go away, he and his Department of Justice have spent the past months undermining the ability of states to protect the health of their citizens—and Attorney General William Barr has joined the president in undermining the ability of states and cities to maintain public order.
When Barr finally makes his long delayed appearance before Congress on Tuesday, his campaign to undermine state and local governments should take center stage.
Since March, Trump has invoked principles of federalism in a transparent effort to avoid responsibility for combating the outbreak, and thrust that burden on states that lacked the resources or ability to combat an international health crisis. Although Trump’s dumping of responsibility in the laps of 50 governors was a transparent abdication of responsibility, it also had apparent grounding in a conservative ideology of states’ rights that has long dominated the GOP. Barr, however, has discarded that principle entirely as he used a series of legal actions to try and force state and local governments to bend to Trump’s will.
The Constitution lodges the police power, including the primary authority to provide for public welfare, safety and health, in the states. Since the New Deal, conservatives have objected to the so-called federal “administrative state,” which they believe has improperly seized power from the states, particularly in areas involving law enforcement, public welfare and health regulation—largely relying on the federal constitutional authority to regulate interstate commerce.
This states’ rights ideology has long been ineluctably bound up with the Southern resistance to civil rights, a cause the GOP adopted to gain the allegiance of former Dixiecrats, beginning with the presidential candidacy of Barry Goldwater and culminating in the victory of Ronald Reagan.
Chief Justice William Rehnquist, a former Goldwater supporter, wrote a memo in favor of upholding the “separate but equal” doctrine during the Supreme Court’s deliberations on Brown v. Board of Education when he was a young law clerk. In 1995, he authored the court’s decision in U.S. v. Lopez, which nullified a statute criminalizing the possession of firearms in the vicinity of schools. As Rehnquist explained it, such misconduct had an insufficient nexus with interstate commerce, and thus regulating the activity was offensive to federalism: “Under the theories that the Government presents… it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign.”
The court later went on to nullify a portion of the Violence Against Women Act, likewise on federalism grounds. Furthermore, while the court narrowly upheld the Affordable Care Act’s health insurance mandate in 2012, Chief Justice John Roberts agreed with the court’s other conservatives that the provision could not be upheld under the Commerce Clause, and instead was valid only as an exercise of Congress’ taxing power.
Accordingly, when, earlier this year, Trump appealed to principles of federalism in attempting to place primary authority for addressing the coronavirus catastrophe on the shoulders of the states, he initially appeared to be implementing the longstanding conservative principle that states should have the responsibility, and autonomy, to regulate public health as part of the police power reserved to them by the Constitution.
But as it turned out, Trump’s actual intention was to offload responsibility on the states, even as he, along with Barr and his Justice Department, assiduously sought to undermine the very state power and authority that Trump claimed to be vindicating. The result was a massive compounding of a public health emergency, and with it the resulting death toll.
KEEP READING
The Constitution lodges the police power, including the primary authority to provide for public welfare, safety and health, in the states. Since the New Deal, conservatives have objected to the so-called federal “administrative state,” which they believe has improperly seized power from the states, particularly in areas involving law enforcement, public welfare and health regulation—largely relying on the federal constitutional authority to regulate interstate commerce.
This states’ rights ideology has long been ineluctably bound up with the Southern resistance to civil rights, a cause the GOP adopted to gain the allegiance of former Dixiecrats, beginning with the presidential candidacy of Barry Goldwater and culminating in the victory of Ronald Reagan.
Chief Justice William Rehnquist, a former Goldwater supporter, wrote a memo in favor of upholding the “separate but equal” doctrine during the Supreme Court’s deliberations on Brown v. Board of Education when he was a young law clerk. In 1995, he authored the court’s decision in U.S. v. Lopez, which nullified a statute criminalizing the possession of firearms in the vicinity of schools. As Rehnquist explained it, such misconduct had an insufficient nexus with interstate commerce, and thus regulating the activity was offensive to federalism: “Under the theories that the Government presents… it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign.”
The court later went on to nullify a portion of the Violence Against Women Act, likewise on federalism grounds. Furthermore, while the court narrowly upheld the Affordable Care Act’s health insurance mandate in 2012, Chief Justice John Roberts agreed with the court’s other conservatives that the provision could not be upheld under the Commerce Clause, and instead was valid only as an exercise of Congress’ taxing power.
Accordingly, when, earlier this year, Trump appealed to principles of federalism in attempting to place primary authority for addressing the coronavirus catastrophe on the shoulders of the states, he initially appeared to be implementing the longstanding conservative principle that states should have the responsibility, and autonomy, to regulate public health as part of the police power reserved to them by the Constitution.
But as it turned out, Trump’s actual intention was to offload responsibility on the states, even as he, along with Barr and his Justice Department, assiduously sought to undermine the very state power and authority that Trump claimed to be vindicating. The result was a massive compounding of a public health emergency, and with it the resulting death toll.
KEEP READING
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