Is this Really the Time to Rewrite the Constitution? Fifteen States say Yes by Tom Timberman

I’m probably not alone on the Eastern Shore in believing Americans in March 2022 already have more than enough on their minds. We’ve recently exceeded 970,000 COVID deaths, but the omicron infections are declining significantly, though the US still records above 1200 deaths every 24 hours. Understandably, Americans were losing patience with vaccinations, masking and school restrictions. Many are now being loosened or removed.  

Meanwhile, our economy is recovering with substantial job gains, but continues to deal with pandemic-generated supply/demand and inflation problems. The latter became sufficiently serious that the Federal Reserve recently raised interest rates. But, our political division and near dysfunction may be healing as a result of Putin’s  brutal invasion of Ukraine. Most Americans support the harsh sanctions imposed on Russia by the US and its Allies and cheer the stiff and courageous resistance by Ukrainians and their president. 

Thus, I was depressed to learn the American Legislative Exchange Council (ALEC) is pressing to convene a Constitutional Convention to consider amendments aimed at limiting the power and jurisdiction of the Federal Government. Fifteen states already have passed legislation supporting a Convention and 17 others  are considering similar action.  

Why? Because states rights versus Federal authority has been and continues to be, a readily available platform for both Democrats and Republicans to justify their partisan desiderata of the moment. The usual issues involved are: race, power, elections, sex and money.  

The following briefly traces the  two century evolution of this US political/constitutional conflict. 

Back to the Beginning

The Articles of Confederation: 

Soon after the initial American/British fighting at Lexington and Concord, the 2nd Continental Congress met to chart the way forward as they fought to separate the 13 colonies from the British crown.  Thomas Jefferson’s eloquent Declaration of Independence explained the rationale for independence and the Congress also created a committee to propose an administrative structure to meet the former colonies’ interim needs.   

In November 1777, the draft Articles of Confederation was approved. They described an alliance of 13 independent states “… a firm league of friendship entered into for their common defense”; not a national government. As George Washington would discover the Confederation had no authority to levy requirements on the states to provide the recruits or the financial and in-kind support,h his forces required.  

The Constitution of the United States:

Representatives of five states met in September 1786 intending simply, to revise the Articles. But, it quickly became obvious that revision of such a decentralized concept could not serve as the new country’s government. 

Fifty-five men wrote the Constitution between May and September 1787, which was finally ratified in June 1788. It established the United States as a  union of its people, not a confederation of independent states. It created three independent branches of Government: a bicameral legislature, an executive led by a president and a judiciary led by a chief justice.  Each of the three Branches had enumerated Constitutional powers. . 

The Bill of Rights:

Americans emerged from the Revolution with a legitimate concern that their just ratified Constitution needed express protections for its citizens.  Otherwise, they feared, future generations could manipulate it to substitute another disdainful, overbearing master, for the will of the people. The result was the Bill of Rights, the first ten amendments to the Constitution. The Tenth Amendment itself generally clarified the relationship between the Federal and state governments, but contained the Reserved Powers Clause: “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” 

This clause has been employed frequently ever since to support the Constitutionality of a claim of superior states’ rights. 

States Rights in the 19th Century

Slavery, and the Civil War 

In the 1830s, Democratic Southern state leaders referred to the Reserved Powers Clause to support their claimed right to refuse to abide by Congressional laws, signed by the president. If, they asserted, their voters wanted to enslave Blacks or take land from Native Americans, that was their democratic right. The result 30 years later, was the devastating Civil War.

Reconstruction and Jim Crow

Slavery may have ended, but the former confederate states were not prepared to accept the racial equality of Blacks and whites.  Thus, their political leaders enacted the Jim Crow laws which segregated the one from the other and comprehensively discriminated against African Americans. It took almost another century for Jim Crow to end. Racial equality and equal justice may take longer.

In 1868, the 14th Amendment was added to the Constitution clarifying whether states or the Federal government, had superior authority vis a vis American citizens: “No state shall make or enforce any law which shall abridge the privileges or immunities of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Two years later, a 15th Amendment guaranteed that: “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude.”

The Civil War changed American federalism forever, but until the 1920s and 30s, the actual powers the central government exercised were limited.  

Post War Economic Impact on Politics.

The Civil War reversed the regional economic balance. Antebellum, the South was the richest region in America, based primarily on the growth, processing and sale of cotton. The North (the Union), under  Republican Administrations, had experienced a wartime industrial boom. However, the Wall Street donors began  to object to the Republican Party’s post-war economic policies: too pro poor, too pro business regulation. The Party in 1872 backed away from its support for workers, in return for Wall Street’s continued largess. Republican U.S. Grant was re-elected president.   

It was a serious political blunder. The 1873 – 77 Panic (depression) sank many banks and railroads and in 1874 cost the Republicans, half their House seats, ceding the majority to the Democrats. In 1885, Grover Cleveland won the presidency, the first Democrat since the Civil War.     

States Rights in the 20th Century

In the early 1920s, some states opposed the Federal extension of business regulatory authority as an invasion of their own responsibilities. Other people,  were similarly irritated by states’ efforts to do the same, i.e. regulate commerce..  

The onslaught of the Great Depression changed the conversation dramatically and stimulated a 20th Century tendency for Americans to look to the Federal Government for help when they were in desperate straits. In 2020, 21 and early 22, this trust in Washington to solve big problems seems to have waned.  

WWII reintroduced race into this Fed/State debate.  On 12/07/1941 (Pearl Harbor Day), the United States was  largely segregated either de facto (North) or de jure (South) as were the US Armed Forces. Moreover, Blacks were discouraged from volunteering to serve in their nation’s military and were not being hired for the jobs created by the war-related  boom.  FDR issued Executive Order 8802 correcting this discrimination, but only after thousands of African Americans threatened to march on Washington

Harry Truman abandoned his original Missouri-bred anti-Black attitude after learning that two returning African American soldiers in uniform had been murdered by white Southern mobs. He introduced a civil rights agenda and in 1948 issued Executive Order #9981 desegregating the US military.

Federal power grew during the administrations of FDR, Harry Truman, Ike, JFK and LBJ via their huge nationwide programs, e.g. the New Deal, New Frontier, Great Society etc. However, in terms of States Rights, it was the national American Civil Rights Movement and Southern whites’ violent, deadly opposition that dominated the subject in the 20th Century.

Harry Truman wasn’t the only Southern reared Democratic president to surrender earlier prejudices to the superior rights of the Constitution.  Lyndon Johnson (Texas) signed into law the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Both had passed Congress with strong bipartisan support..

The Reagan Era (1981-89): States Rights vs the Feds, Civil & Voting Rights & Self-Sufficiency 

President Reagan’s  two terms in office substantially impacted the last decades of the 20th Century and beyond. His foreign policy successes were signal achievements, while his optimistic imagery of the “Shining city on a Hill”helped improve the national mood. 

However, domestically his early campaign statement that the Federal Government was the problem, soured millions of Americans on Washington. The 2022 public belief that the national government is overbearing and robbing citizens of individual freedoms, is an amplified, modern manifestation. 

Reagan also delivered, perhaps inadvertently, an early, discouraging message to African Americans. He chose to deliver a campaign speech in Neshoba County, Mississippi where, in 1964, three civil rights volunteers (2 white, 1 Black) had been kidnapped and murdered by white local police officers. The following except from his Neshoba remarks did please a number of American politicians:   

“I believe in states rights, I believe in people doing as much as they can for themselves at the community level and at the private level. I believe we’ve distorted the balance of our government today by giving powers never intended in the Constitution, to the Federal establishment.”  

The President’s early emphasis on individual responsibility was an early alert to his Administration’s lower emphasis on Safety Net priorities.  He reduced budget support for Medicaid, Medicare, school lunch programs and others. 

In eight years, the Reagan Administration halted 30 years of work by his predecessors to overturn state laws that restricted minority Federal Civil and Election Rights, An early example: was his decision to end funding to enforce civil rights’ violations. On a more positive note, President Reagan did declare Martin Luther King, Jr.’s’ birthday, a national holiday. 

States Rights and Electoral Politics march towards 2022

Political Party Transformations

By the time the 21st Century began, the two principal political parties (Democratic and Republican) had changed or exchanged major planks in their platforms. Most significant was the post Civil War gradual evolution of the Democrats away from its traditional pro-slavery, pro-Jim Crow, racist principles.  This shift culminated in the 1964 and 65 signature of the Civil and Voting Rights Acts, by Democratic President Lyndon Johnson. LBJ knew this would be the death knell of his Party’s  long political domination of the former confederate states. And it was. 

The Republican Party adjusted its earlier abolitionist views, revisited its states’ rights portfolio and adapted its conservative positions to encompass local Southern opinion. They replaced the Democrats as the majority Party in the South and have used the States Rights platform to further their developing positions on abortion, freedom of religion, corporate political rights and individual freedoms versus alleged Federal encroachment. 

Following President Trump’s 2020 loss to Joe Biden, voter fraud and politicization of election management plus removal of pandemic mandates became included on states rights agendas of those controlled by Republicans. 

States Rights and the US Supreme Court in the 21st Century:

 Electoral politics writ larger became the subject of judicial challenges citing different parts of the Constitution.  In 2010, the Supreme Court in Citizens United vs. the FEC, decided the 1st Amendment’s free speech guarantees also applied to corporations’, non-profits and union’s, campaign contributions.  The Federal Election Commission cannot, the Court determined, restrict them. 

Three years later, in Shelby County (Alabama) v. Holder (2013), the Supreme Court decided that Section 4 (a) of the Voting Rights Act (1965) requiring certain Southern states to obtain DOJ clearance before changing election laws, was no longer necessary. 

Tom Timberman is an Army vet, lawyer, former senior Foreign Service officer, adjunct professor at GWU, and economic development team leader or foreign government advisor in war zones. He is the author of four books, lectures locally and at US and European universities. He and his wife are 24 year residents of Kent County.