State's Rights: From Succession, to Sovereignty, to Obstruction.

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Eliot Spitzer, New York's Attorney General and Democratic candidate for governor took on the Supreme Court's most infamous conservative yesterday, Justice Antonin Scalia, for his 'constructionist views' which he says would have threatened abortion rights after their enactment, criminalized abortion, banned women from juries, and allowed segregation. He spoke at a Law Day ceremony held on the steps of the state Court of Appeals:

"Understanding what the framers meant can help us," Spitzer said. "But alone it cannot be enough."

"A flexible Constitution allows us to consider not merely how the world was, but how it ought to be," he said. "It retains its legitimacy, not shackled to the mores of men long gone, but the enduring legacy of the framers."

In 2000, the Confederate battle flag that sat atop the South Carolina statehouse did not provoke then-candidate George Bush to criticism. But his admonition to "let the people of South Carolina decide the flag's fate was a signal to those in the birthplace of southern independence that his campaign would pursue his notion of state sovereignty, or state's rights, even where issues of race demand sensitivity and deference.

In his second debate with John Kerry, Mr. Bush evoked his desire for Supreme Court justices who would act as strict constructionists in their decision making and rulings. Said Bush:

"I wouldn't pick a judge who said that the Pledge of Allegiance couldn't be said in a school because it had the words "under God" in it. I think that's an example of a judge allowing personal opinion to enter into the decision-making process as opposed to a strict interpretation of the Constitution. Another example would be the Dred Scott case, which is where years ago, judges said that the Constitution allowed slavery because of personal property rights."

"That's a personal opinion." he said. That's not what the Constitution says. The Constitution of the United States says we're all -- you know, it doesn't say that. It doesn't speak to the equality of America.

And so, I would pick people that would be strict constructionists. We've got plenty of lawmakers in Washington, D.C. Legislators make law; judges interpret the Constitution."

Mr. Bush and others should take care when romanticizing about a strict constructionist's notion of state's rights which was originally evoked in support of succession and tyranny and repudiated by the Civil War.

His wink and nod to South Carolina voters during that election amounted to more than just deference to local sovereignty and initiative. The Confederate battle flag reappeared atop the state house in 1962 as a chilling moniker of white supremacy in symbolic resistance to federal civil rights initiatives. The question became, how aggressively would Mr. Bush defend our federal rights against state defiance?

In 1999, the Supreme Court revived old state's rights doctrines as they allowed state legislatures to selectively refuse to enforce legislation they disagreed with. The actions of the Court put into question whether the federal government could exercise primacy in the enforcement of the laws it passed as reluctant and self-interested state legislatures took to gambling federal law against the Supreme Court's fixed, conservative majority. The 5-4 majority has helped transform the notion of state's rights from succession, to sovereignty, to obstruction.

The doctrine of state's rights was initially evoked in the creation of the constitution to keep the importation of slaves legal until 1808, and to deny southern blacks full rights of citizenship. It was subsequently used to defend the interstate transport of slaves, to defend the fugitive slave law, and to expand slave territory to Kansas. Blacks weren't afforded rights until after the Civil War when states were forced to accept federal guarantees to blacks as a condition of readmission to the Union.

But, even the 14th and 15th amendments were just abstractions without the Civil Rights Act and the Voting Rights Act to provide the basis for federal enforcement of these rights.

One consequence of a renewal of state sovereignty could be the political disenfranchisement of African Americans and women. Their rights of citizenship are the product of federal action taken long after the enactment of the original constitution. Mr. Bush is challenged in his executive authority to take responsibility where states will not or cannot act, and fashion defensible legislation that can be enforced.

Col. R.G. Ingersoll, an opponent of the doctrine of state's rights in the 1800's, noted that ". . . rights are not self-executed. I only owe the government allegiance that owes me my protection." he wrote. Without the consistent logic of federal primacy and state compliance in the execution of federal law no federal action can be expected to prevail. Americans need more than just good faith assurances that rights are guaranteed. Rights must be backed by defensible law.

President Bush's reference to the Dred Scott decision as an example of "personal opinion" imposed on Supreme Court reasoning ignored the irony that the justice who wrote the majority opinion in the case in 1857, and insisted that blacks were not entitled to full rights because they were only afforded two-thirds representation in the original constitution, was himself invoking a strict constructionist's standard. Dred Scott argued that he should be set free because he had visited a free-state, Wisconsin. The Court ruled against Scott by claiming that African Americans were inferior and without legal rights and could never be citizens of the U.S..

Chief Justice Roger B. Taney wrote the majority opinion which read:

"In the opinion of the Court, the legislation and histories of the times, and the language used in the Declaration of Independence, show that neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people nor intended to be included in the general words used in that memorable instrument."

That is one of the most stark examples of the fallacy of using a strict constructionist's philosophy to determine matters of law. Mr. Bush argued against his own ideology in criticizing Chief Justice Taney's strict interpretation of the constitution, and inadvertently pointed up how a strict constructionist's approach to issues of justice and law does not recognize rights that aren't specifically spelled out in the constitution. Strict constructionists believed that President Lincoln's emancipation order was illegal because it didn't repeal the clause in the constitution that recognized whites as citizens and blacks as 3/5 white.

Mr. Bush's divisive instincts and initiatives are well matched by strict constructionist Justices like Scalia who would ignore settled legislation that reflects decades of progressive reasoning and deliberation, and would narrow the scope of such legislation to fit with his decidedly narrow view of the Constitution.

It's a shame that Bush and his appointed minions wield the power and influence of our great nation with such reckless indifference . . . and ignorance.

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1. just a refresher on the issue

highlighted by the comments of the excellent Democratic candidate for NY governor, Eliot Spitzer . . .