I was taught in school that the Civil War was not fought over slavery, that the Emancipation Proclamation and the abolition of slavery came as something of an afterthought to a dispute over “States’ Rights,” the tension between the authority of the individual states and the authority of the federal government, a tension that had existed even before the time of the ratification of the Constitution, a tension expressed, in part, by the political movement of Anti-Federalism.
The South lost the Civil War and, with it, you would think, not only the institution of enslavement based on race, but You would also think they lost much of the argument over “States’ Rights”. In the years following Richard Nixon’s adoption of the “Southern Strategy”, the modern Republican Party has taken up the cause of “States’ Rights” in a modified form: through a concerted campaign to stoke distrust in the workings of the federal government. It crops up in many forms. Locally elected “Constitutional Sheriffs” in some jurisdictions (think Richard Mack and Joe Arpaio in Arizona, but also Daryl Wheeler in Bonner County, North Idaho), all far right Republicans, claim their authority supersedes the federal government’s (and, in some cases, even the state government).
Such antagonism and distrust of the federal government cropped up recently in a surreal article appearing in the Bonner County Daily Bee describing a meeting of the County Commissioners (all far right Republicans). At the meeting there was contention over whether federal funds from the American Rescue Plan Act of 2021 were being accepted clandestinely by the Commissioners for use in Bonner County. It sounded as though both the Commissioners and those testifying from the audience agreed:
…that spending the federal money would cause smaller government entities to adhere to potential future executive orders about pandemic response actions.
The argument was over whether the Commissioners were by some sort of financial sleight of hand were actually using some of the federal money while claiming they were not. The surreal part of this that the money in question comes from federal income taxes paid, in part, by the citizens of Bonner County, the same people who will be asked to fill the gap in the county budget left by non-acceptance of ARPA funds—an inane expression of the doctrine of “States’ Rights”: “We can’t accept a federal grant of our own money because it might, arguably, come with some strings attached.”
There is a much more than a tinge of “States’ Rights” in some Spokane County Republicans (see former state Rep. Matt Shea, for example) promotion of Liberty State and in the concept of The American Redoubt. What point is there, after all, in establishing a new government if that government can’t enact laws independent of federal oversight?
From where does this need to assert “States’ Rights” to operate independent of federal oversight come from? I’ve copied and pasted below Professor Heather Cox Richardson’s post from January 7 for those of you who are not yet subscribed to her daily email Letters from an American. HCR’s post lifted the blinders I received in high school, blinders provided by decades of “Lost Cause” ideology. (I recommend an excellent documentary, The Neutral Ground, for rent on Youtube for $3.99 for further explanation of the “Lost Cause”.) I do not believe that all modern-day Republicans understand the origins of these concepts, but the far right upon which Republicans increasingly depend certainly do—I cannot get the image of a full size flag, the Confederate Stars and Bars, carried proudly through the U.S. Capitol on January 6. It isn’t just that the “South will rise again” with all it stood for. The South has, in fact, risen, but in veiled form and over decades of effort.
Today, Judge Timothy Walmsley sentenced the three men convicted of murdering 25-year-old Ahmaud Arbery on February 23, 2020, as he jogged through a primarily white neighborhood in Brunswick, Georgia. Travis McMichael, his father Gregory McMichael, and their neighbor William “Roddie” Bryan chased Arbery in their trucks, cornering him on a suburban street. Travis McMichael shot and killed the unarmed Arbery, while Bryan filmed the encounter from inside his truck.
While the men were convicted of several different crimes, all three were convicted of felony murder or of committing felonies that led to Arbery’s death. Under Georgia law, they each faced life in prison, but the judge could determine whether they could be paroled. Judge Walmsley denied the possibility of parole for the McMichael father and son, but allowed it for Bryan. Under Georgia law, that means he will be eligible for parole after 30 years.
The state of Georgia came perilously close to ignoring the crimes that now have the McMichaels and Bryan serving life sentences.
Gregory McMichael was connected to the first two district attorneys in charge of the case, both of whom ultimately recused themselves, but not until they told law enforcement that Georgia’s citizens arrest law, dating from an 1863 law designed to permit white men to hunt down Black people escaping enslavement, enabled the men to chase Arbery and that they had shot him in self-defense. In late April, the state’s attorney general appointed a third district attorney to the investigation. “We don’t know anything about the case,” the new district attorney told reporters. “We don’t have any preconceived idea about it.”
On April 26, pressure from Arbery’s family and the community had kicked up enough dust that the New York Times reported on the case, noting that there had been no arrests. Eager to clear his name, and apparently thinking that anyone who saw the video of the shooting would believe, as the local district attorneys had, that it justified the shooting, on May 6 Gregory McMichael arranged for his lawyer to take the video to a local radio station, which uploaded it for public viewing.
The station took the video down two hours later, but not before a public outcry brought outside oversight. The Georgia Bureau of Investigation took over the case, and two days later, on May 7, GBI officers arrested the McMichaels. On May 11, the case was transferred to Atlanta, about 270 miles away from Brunswick. On May 21, 2020, officers arrested Bryan.
On Wednesday, November 24, a jury found the three men guilty of a range of crimes on the same day that the first district attorney turned herself in to officials after a grand jury indicted her for violating her oath of office and obstructing police, saying she used her position to discourage law enforcement officers from arresting the McMichaels.
The Arbery case echoes long historical themes. Arbery was a Black man, executed by white men who saw an unarmed jogger as a potential criminal and believed they had a right to arrest him. But it is also a story of local government and outsiders, and which are best suited to protect democracy.
From the nation’s early years, lawmakers who wanted to protect their own interests have insisted that true American democracy is local, where voters can make their wishes clearly known. They said that the federal government must not intervene in the choices state voters made about the way their government operated despite the fact that the federal government represents the will of the vast majority of Americans. Federal intervention in state laws, they said, was tyranny.
But those lawmakers shaped the state laws to their own interests by limiting the vote. They actually developed and deployed their argument primarily to protect the institution of human enslavement (although it was used later to promote big business). If state voters—almost all white men who owned at least some property—wanted to enslave their Black neighbors, the reasoning went, the federal government had no say in the matter despite representing the vast majority of the American people.
After the Civil War, the federal government stepped in to enable Black men to protect their equality before the law by guaranteeing their right to vote in the states. But it soon abandoned the effort and let the South revert to a one-party system in which who you knew and what you looked like mattered far more than the law.
After World War II, returning veterans, civil rights lawyers, and grassroots organizers set out to register Black and Brown people to vote in their home states and got beaten and murdered for their efforts. So in 1965, Congress stepped in, passing the Voting Rights Act.
It took only about 20 years for states once again to begin cutting back on voting rights. Then, in 2013, the Supreme Court gutted the Voting Rights Act, and states promptly began to make it harder to vote. Since the 2020 election, 19 Republican-dominated states have made it even harder. Many of those states are now functionally one-party states, in which equality before the law matters less than belonging to the dominant group.
Now, once again, right-wing leaders are trying to center our government on the states. Today, the Supreme Court heard arguments about the Biden administration’s vaccine or testing requirement for businesses that have more than 100 employees. (Ironically, two of the lawyers arguing against the mandate had to appear virtually because they had tested positive for Covid and the Supreme Court protocols prohibited them from the court.)
A majority of the justices indicated they thought such a mandate was government overreach. Knowing that Republicans in the Senate would never permit similar legislation, Chief Justice John Roberts said that the pandemic “sounds like the sort of thing that states will be responding to or should be, and that Congress should be responding to or should be, rather than agency by agency the federal government and the executive branch acting alone.”
But states that are restricting the vote almost certainly will not respond to the pandemic in a way that represents the will of the majority, and Republicans are trying to guarantee that the federal government cannot protect voting. Just last Tuesday, January 4, 2022, Republican senators reiterated their opposition to the Democrats’ Freedom to Vote Act.
Senate Minority Leader Mitch McConnell (R-KY) told reporters that there was no need for federal election protections because states would never overturn the counting of votes after an election (although a number of state legislators tried to do just that in 2020). “The notion that some state legislature would be crazy enough to say to their own voters, ‘We’re not going to honor the results of the election’ is ridiculous on its face,” he said. Senator Joni Ernst (R-IA) said that Senate Majority Leader Chuck Schumer (D-NY) “is using the false narrative that our states cannot protect voters’ access to voting.”
They can, of course. The problem is that historically, many of them do the opposite. And the minority rule that results not only results in poor governance, it leads to the sort of society in which three men can hunt down and shoot an unarmed jogger and, unless outsiders happen to step in, run a good chance of getting away with it.
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Notes:
I outlined the events of the Arbery killing on November 26, 2001.
