By F. Michael Zimmerman

Copyright, 2009, F. Michael Zimmerman

In the these early years of the 21st century, most Americans both North and South have tended to equate States' rights with slavery, Jim Crow, segregation, racial discrimination, and racism in general. It is true that those who have defended these shameful causes have usually appealed to States' rights. But the principle of States' rights is a legal principle which has nothing to do with these reprehensible positions.

We find the principle of States' rights in the Tenth Amendment to the U.S. Constitution.

                                                               AMENDMENT 10

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

That's it. It says nothing about racism, slavery, or racial discrimination. Today, it can be invoked on behalf of a variety of contemporary issues, many of which have nothing WHATSOEVER to do with racism. Oregonians claim the right to regulate industrial development and to control environmental pollution in a way that earns them the admiration of environmentalists in other parts of the United States. But they may not want the Environmental Protection Agency to tell them how to regulate their environment. This is a legitimate application of States' rights! Obvious applications of States' rights today include issues such as same-sex marriages (where it is an important principle on both sides!), gay rights, hiring quotas, and State benefits for illegal immigrants. Other applications include offshore oil drilling, highway speed limits, nuclear power, air and water pollution controls, standards of obscenity, regulation of pornography, and the establishment of nuclear-free zones. At various times the principle of States' rights has been invoked concerning all of these questions.

Thanks to the efforts of a few racists in American history, many well-meaning people look to centralized power as a knockout punch to secure liberty and justice for all. This has caused the doctrine of States' rights to fall into disrepute. But States' rights is a legal doctrine which has nothing to do with the abrogations of human rights on behalf of which it has often become an issue. It is a valuable legal principle. It deserves to be rehabilitated. In the present, most Americans have no serious political opposition to the basic principles of human rights. Our disagreements regarding affirmative action, sexual harassment, gay rights, and other questions, center on the proper implementation of principles, not the principles themselves. Attempts to equate conservatism with racism are spurious. In the 21st century, few States have any group of voters with any significant political strength pushing an agenda contending that anyone should "ride in the back of the bus".

The principle of States' rights in its simplest form affirms the right of the State to decide a multitude of questions without appeal to the Federal government. It is an expression of the broader principles of home rule and local control, both of which have honorable histories in all English-speaking countries. It affirms that local jurisdictions should decide local issues barring any compelling reason for the intervention of central authority. It grants local people the right to be wrong, as long as they do not attempt to force others to make their mistakes. Only gross violation of basic moral principles should compel outsiders to intervene in the conduct of local affairs by those who must then live with the consequences of their decisions.

Nevertheless, it may be argued that the historical use of the doctrine of States’ rights by racists to justify racist social policy justified the curtailments of the practice that came with civil rights legislation.  The moral basis for this comes from the Declaration of Independence:

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness

This means that the doctrine of States’ rights never was there for its own sake, valuable though it is.  Its purpose is and was to secure the rights of the American people.  The use of this doctrine to justify racial discrimination was therefore a misuse of States’ rights serious enough to justify the abridgements that took place in civil rights legislation.  We may debate the wisdom of actually doing so.  But it was justified, however unwise it might have been in the long run.

Nevertheless, States’ rights is a valuable check on the power of centralized government.   It should be rehabilitated now that it has been divorced from racism. 

The situation past and present may be compared to a broken bone.  In order for a broken leg to heal, it is necessary to put it into a cast.   This necessarily restricts the patient’s freedom.  But it is necessary.   However, once the leg has mended nobody would keep it in a cast.  The cast must be removed if the patient’s freedom is to be restored.

Likewise, the restrictions on States’ rights that were necessary to put racism behind us are not what we should endure once this has been done.  Undoubtedly there are still racists among us.  But they have been marginalized enough that it is time for us to move on – without them unless they decide to join the human race!  Today’s debates on issues such as forced busing and affirmative action are not debates between those who want to keep or restore racism and those who want to get rid of it.  Rather, they are debates on the best way to get rid of it.  To say that an opponent of busing or hiring quotas must be a racist is like saying that Stalin was a Christian just because he never fed any to the lions!

In practice, we will need the support of our ethnic minorities to in order to restore States’ rights.  They have every right to go over the details of that restoration to make sure that nobody tries to restore racism.  That is legitimate.   But we must proceed.  We need to make clear that we do not want to force Black children into segregated schools where they will get an inferior education (inferior even to the education too many of them get now!).  Rather, we want their parents to have the same choices in the education of their children that other Americans have.  And these choices are best implemented at the local level.  That requires the re-assertion of States’ rights!

The doctrine of States’ rights never was a synonym for racism.  It is a tragedy that racists hijacked it for that purpose.  Today the racists have been dealt with.  It is time to restore the doctrine of States’ rights – without them!