The COVID-19 pandemic has reignited the debate over the rights of individual states versus the federal government. It’s a debate that began before the Constitution was even ratified in 1788. But while advocates of states’ rights have historically been conservative, supporters of this position in the COVID-19 era mainly hail from the left.
The idea behind states’ rights is that state and local governments are more responsive to their populations than a centralized government could ever be. States also have greater sensitivity to local issues within their borders, along with greater understanding of the culture and values of their citizens.
The nation known as the “United States” was originally comprised of 13 disparate and squabbling former British colonies. They came together in the 1770s to fight a war of independence from Great Britain. But at war’s end, the Articles of Confederation drafted to govern the new nation proved inadequate to deal with questions of trade, international treaties, and a common currency.
In 1787, delegates from these 13 states gathered in Philadelphia to draft a new governing document. The new Constitution was a compromise between advocates of states’ rights and proponents of greater authority for the federal government. Among the most important concessions states made was to agree the federal government had the authority to regulate commerce. States were also required to enforce contracts originating in other states.
Opponents of this “federalist” model of government, such as Thomas Jefferson, believed the Constitution centralized authority at the states’ expense. As a compromise, the federalists added a Bill of Rights to the Constitution. It consisted of ten amendments that included guarantees of freedom of both speech and assembly, the right to a trial by jury in criminal cases, and a prohibition against unreasonable searches and seizures. And to prevent further encroachments of states’ rights the Tenth Amendment stated:
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.
But that was hardly the end of the debate. The Constitution neglected the question of slavery, which at the time of ratification was legal in eight of the 13 states. By the 1830s, slavery had become such a contentious issue that states’ rights advocates declared that any state could declare an act of Congress unconstitutional.
In 1832, South Carolina Senator John Calhoun declared:
We of the South will not, cannot surrender our institutions. To maintain the existing relations between the two races inhabiting that section of the Union is indispensable to the peace and happiness of both.
While the Civil War resulted in the military defeat of the southern states and the abolition of slavery, the controversy over states’ rights continued. Many disputes dealt with the 14th Amendment, which granted citizenship to all persons born or naturalized in the United States — including former slaves — and guaranteed all citizens “equal protection of the laws.”
In the decades that followed, the Supreme Court interpreted the “equal protection” clause in a manner that many states, especially in the south, contested bitterly. It ruled that Congress or federal courts had the authority to overturn state laws restricting free speech and the rights of criminal defendants and racial and ethnic minorities. More recently, states have contested the authority of the federal government to impose rules regulating air and water pollution, land use, and mineral extraction.
But then came COVID-19. And the positions changed very quickly. On April 13, President Trump declared that he alone had the authority to order the end of quarantines and other restrictions that states had imposed to fight the virus. Individual states, he said, “can’t do anything without the approval of the president of the United States … When somebody is the president of the United Sates, the authority is total.”
Then on June 1, the president declared that he would invoke the Insurrection Act of 1807, a law authorizing military mobilization on domestic soil to quell violence and property destruction following the police killing of George Floyd. Trump deployed National Guard troops to quell protests near the White House. And he sent agents from the Department of Homeland Security (DHS) to Portland and Seattle to protect federal buildings in those cities. In several cases, heavily-armed DHS agents forced unarmed people into unmarked vans and arrested them for supposed violations of federal laws.
It would be an understatement to say that certain states, especially those with Democratic governors, resisted these measures. Just hours after Trump announced that only he had the authority to “open up the states,” Democratic governors announced their own plans to scale back stay-at-home orders and reopen businesses.
Six weeks later, in response to the deployment of DHS agents in several cities with Democratic mayors, those mayors questioned the president's right to send in federal forces against their wishes. Typical among these objections was this one from Portland Mayor Ted Wheeler: "Keep your troops in your own buildings or have them leave our city."
It’s a delicious irony to see Democrats defending state’s rights. But it begs a larger question: how far should a state’s rights extend?
The United States is an enormous country, with more than 300 million people occupying a geographical area of 3.5 million square miles. It encompasses forests, mountain peaks, deserts, and some of the richest farmland in the world. A large swathe of the country, comprising much of the Southwest, was conquered from Mexico.
As a practical matter, it’s impossible to oversee all aspects of governance of such a vast and diverse area from Washington, D.C. The founders of this country recognized this fact more than two centuries ago. They created a system in which powers not specifically delegated to the federal government were retained by the states.
There will always be tension between individual states and the federal government over what specific powers are or are not reserved. But it’s refreshing to see that the left now understands that federal powers are not, and should not be, unlimited.