Alan Zendell, December 3, 2021

When we studied the fifteen years between the American revolution and the adoption of our Constitution, our teachers presented the debate over how the new republic’s government should look as a done deal. In the late 1780s, the chief antagonists arguing over the form of our government were Alexander Hamilton and Thomas Jefferson. Hamilton favored a strong federal government because he distrusted the motivations of individual states and the people who governed them. Jefferson wanted states to be able to legislate as they wished, without interference from the federal government, except in matters of national security.

The Constitution ratified in 1788, and modified by the Tenth Amendment, spelled out the roles of the federal and state governments. The power to raise revenue through various forms of taxation, to raise an army and navy, and to declare war were explicitly given to the Congress. Virtually everything else not specifically prohibited by the Constitution was to be administered by the states. The federal government could also enact laws that superseded state statutes, as was made clear in the federal supremacy clause.

That all sounds like a neat package until you dig down to the details. It turns out there aren’t any. The Constitution’s provisions are general in nature, and they fail to address many specific issues, which have been disputed in the more than two hundred thirty years since. Thus, we had landmark Supreme Court decisions throughout the second half of the last century. The high court upheld the federal government’s right to overrule states that overtly practiced racial segregation in schools, to assure that every citizen’s voting rights were equal regardless of state restrictions, to protect a woman’s right to control her own health and body, and to assure that states offered basic medical, welfare, and nutrition services to everyone who needed them.

But the movement catalyzed by Donald Trump to dismantle the powers of the federal government and strengthen the states’ ability to pass laws unfettered by central authority has created a state of outright war between federalism and states’ rights. Enabled by then Senate Majority leader Mitch McConnell, Trump was allowed to appoint three extremely conservative justices to the Supreme Court in a single term, with the express intent of reversing many decisions that Trumpers consider too progressive. Trump and his allies see this as the end game of a nearly ninety-year battle against Franklin Roosevelt’s New Deal.

What this is all really about is putting an end to the massive transfer of wealth from the fraction of one percent of Americans who own ninety percent of the nation’s assets to programs designed to benefit all Americans. The Constitution is silent on a number of critical issues, like whether basic health care is an inalienable right; that is, whether the Preamble to the Constitution’s assurance of every citizen’s right to “Life, Liberty, and the Pursuit of Happiness” includes the right to good health and medical care. The simple truth is that no real medical care existed, and little was known about general health and nutrition in the eighteenth century. There’s no doubt that had they existed, medical care and good health would have been included among the First Amendment rights and freedoms.

The Supreme Court is now debating the future of Roe v Wade, which legalized a woman’s right to have an abortion and is supported by a strong majority of Americans. In the forty-eight years since that decision, right-wing states have continually pecked away at a woman’s right to choose, until this year, emboldened by Trump’s control of the Republican Party, Texas and Mississippi passed laws that directly undermine the Court’s ruling. Today’s Supreme Court is almost the political opposite of the one that issued Roe v Wade. Apparently, two generations of precedent don’t matter when the forces of reactionary politics are in control.

Regardless of how the Court decides the future of a woman’s right to control her body, that’s only the opening act of what could be the critical final battle over states’ rights. Today, Texas’ new law severely limiting voting rights, which is clearly aimed at reducing the votes of Democrats, specifically those of non-white Americans and recent immigrants, went into effect. Other states that recently passed similar laws, like Wisconsin, are already gerrymanding the next ten years of elections (until the 2030 census) at an unprecedented level to assure that right-wing extremists remain in power indefinitely.

The bottom line is whether we will permit big money and autocratic state leaders to undermine the basic principles of our democracy. It is essential that the Biden administration do whatever is necessary to pass a federal voting rights act before the 2022 elections. If not, there will be no stopgap, even in the United States, to resist the worldwide trend to end democracy wherever it presently flourishes.