The Federalism Dodge In Historical Perspective

Dave’s post on Confederate nostalgia premised on an imaginary commitment to “States’ Rights” reminds me that one reason why John Marshall Harlan’s dissent in the Civil Rights Cases is one of my very favorite in the U.S. Reports is that he not only anticipated the bogus “special rights” argument but in contrasting the Court upholding the Fugitive Slave Acts and striking down the Civil Rights Act was also an incisive critic of the federalism dodge:

With all respect for the opinion of others, I insist that the national legislature may, without transcending the limits of the Constitution, do for human liberty and the fundamental rights of American citizenship what it did, with the sanction of this court, for the protection of slavery and the rights of the masters of fugitive slaves. If fugitive slave laws, providing modes and prescribing penalties whereby the master could seize and recover his fugitive slave, were legitimate exercises of an implied power to protect and enforce a right recognized by the Constitution, why shall the hands of Congress be tied so that — under an express power, by appropriate legislation, to enforce a constitutional provision granting citizenship — it may not, by means of direct legislation, bring the whole power of this nation to bear upon States and their officers and upon such individuals and corporations exercising public functions as assume to abridge, impair, or deny rights confessedly secured by the supreme law of the land?

Amazingly, the same faction that seceded in 1861 strongly favored the Fugitive Slave Act in 1850, although the wording of the Fugitive Slave clause and its placement in Article IV rather than Article I suggests that the rendition of fugitive slaves was a state rather than federal responsibility. (An argument can be made for the constitutionality of the law, but it certainly wouldn’t be made by someone with a serious commitment to narrow federal power.) And this was part of a completely consistent pattern. Mark Graber’s recent book is good on this, but until demographics shifted in favor of the free states most Southerners were advocates of strong federal power — John Calhoun started as a nationalist, Jefferson may have been tortured by the Louisiana Purchase but most of his supporters weren’t (and even he went ahead with it), and so on. The relevant principle the slaveholding states adhered to is straightforward: the protection of human bondage. When the federal government advanced the interests of slaveholders, they advocated strong federal powers; when the federal government didn’t advance those interests, all of a sudden the rights of the states were paramount.

And, of course, has been consistent from Reconstruction onward as well. Pro-apartheid Southerners who claimed that Brown v. Board was an outrageous arrogation of federal power generally didn’t object to the Tennessee Valley Authority, constitutionally dubious federal persecution of communists, federal spending programs as long as most of the benefits went to white people, etc. Almost everybody who purports to want abortion “sent back to the states” favors every federal abortion regulation to come down the pike. And so on. “Federalism” has never been an especially important independent factor in American politics; much more commonly, it’s a way of advancing substantive claims you’d rather not defend on the merits.