Dangerous ‘State Sovereignty’ Myth

Exclusive: In the U.S. system, the “supreme law” of the land is set by the Constitution and the federal government, though states, counties and cities have wide discretion over local matters. But problems arise when right-wingers start espousing the notion of “state sovereignty,” says Robert Parry.

By Robert Parry

During her half-term as governor, Sarah Palin would refer to the “sovereign state of Alaska.” In doing so, she was like some other governors who call their states “sovereign” as a rhetorical show of defiance against the federal government.

For many years, this practice has been popular among the states of the Old Confederacy and, more recently, in states that were not slave-owning but are now led by right-wing governors who believe the federal government has no business telling the states how to run their affairs.

But the “state sovereignty” rhetoric today is moving beyond defiant words, as the Republican Party asserts that states should be allowed to change their voting rules to suppress the voting rights of blacks, Hispanics, Asian-Americans and young urban whites who are seen as likely Democratic voters.

The Republican intent is to transform much of the United States not just the Old Confederacy but pretty much all states under GOP control into a modern-day land of Jim Crow where the ballots of white rural voters will be given extra weight over black, brown and young urban voters.

This initiative, which is now before the U.S. Supreme Court in a case seeking to gut the Voting Rights Act, is essentially that the “independent sovereign” rights of states should trump the rights of racial minorities to vote, despite the Fifteenth Amendment, which gives the federal government the explicit power to protect those voting rights.

Based on oral arguments last week, many Court observers now believe that the five right-wing justices will strike down the heart of the law, Section Five, which requires jurisdictions with a history of racist voting laws to get prior approval from the federal government before they change their voting rules.

One of those right-wing justices, Anthony Kennedy, indicated that he felt Section Five was an unconstitutional infringement on Alabama as an “independent sovereign.” In other words, Alabama’s constitutional right to do what it wants should trump the right of minorities to participate fairly in the democracy.

However, while there is specific language in the Constitution prohibiting states from infringing on the right to vote, there is no language referring to states as “independent” or “sovereign.” That wording comes from the Articles of Confederation (which governed the country from 1777 to 1787), but was expunged by the Constitution, which transferred national sovereignty from the 13 original states to “We the People of the United States.”

State Prohibitions

Beyond dropping the language about “independent” and “sovereign” states, the Constitution also contains a long list of prohibited activities by the states, including bans on coining money, entering into treaties and acting against a foreign country (Article I, Section 10). The Constitution further dictates the structure of state governments, requiring them to operate as republics (Article IV, Section 4). Most significantly, the Constitution makes federal law “supreme,” giving federal courts the power to strike down state statutes deemed unconstitutional.

That provision in Article VI states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

In other words, the Constitution constrains what the states can do and sets rules for their structures. If, say, a state wanted to become a monarchy, the federal government would step in and say no. When 11 slave states tried to secede from the Union after Abraham Lincoln’s election in 1860, they were declared in rebellion and were militarily defeated by a federal army.

Other provisions in the three amendments following the Civil War the Thirteenth, abolishing slavery; the Fourteenth, requiring equal protection under the law; and the Fifteenth, prohibiting racial discrimination in voting further sent a clear message that the states were obliged to submit to the sovereignty of “We the People of the United States.”

However, it has remained popular in some circles to assert that the states possess something close to equal sovereignty with the federal government. Some legal scholars use the phrase “dual sovereignty,” suggesting that neither side is dominant, much like grade schools give out “participation trophies” for field-day competitions.

While such language may make the advocates of “states’ rights” feel better, it isn’t really true. By definition, “sovereignty” means “having supreme rank, power, or authority.” It is, in that sense, a superlative. There can be only one “sovereign” and under the U.S. Constitution it is clearly “We the People of the United States” and the officials that we elect to national office.

Of course, states have some rights as do towns and individuals. You can claim, I suppose, that you have some “sovereignty” over yourself, that your family has “sovereignty” over your home; your county board has “sovereignty” over local affairs; and your state has “sovereignty” over much state business.

However, all those “sovereignties” are limited by law and the “supreme” law of the land is the U.S. Constitution and the federal statutes that are enacted by the U.S. Congress and signed by the President.

Silly Defiance

Normally, of course, no one would care when Palin and other right-wing political figures call their states “sovereign” as a show of defiance. The problem comes when they start believing it. In that sense, “state sovereignty” is a bit like the honorific title “Kentucky colonel.” No one minds guys calling each other “Colonel” unless they start taking it seriously and leading soldiers into battle. Then real harm can be done.

Similarly, real harm can derive from the myth of “state sovereignty,” especially now that the Right has captured the majority of the U.S. Supreme Court. Anthony Kennedy, John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito are political activists seeking to impose a Neo-Confederate interpretation on the Constitution.

These justices may call themselves “strict constructionists” who believe in a literal reading of the Constitution. However, if they destroy the Voting Rights Act based on Kennedy’s thesis about “independent sovereign” states, they will be seeing language in the Constitution that isn’t there.

Nowhere in the document is there wording about states being “independent sovereigns.” And, the words aren’t there because the Framers the likes of George Washington and James Madison willfully removed them, with prejudice as a court might say.

General Washington despised the concept of state sovereignty viscerally because of his experience as commander-in-chief of the Continental Army, which often suffered when states reneged on promised support. Madison saw the Articles of Confederation threatening the nation’s hard-won independence and holding back the nation’s economic growth.

As the chief architect of the Constitution, Madison gave the federal government sweeping authority over a wide variety of national matters, including commerce. He wanted to give Congress direct power over state laws but settled for federal courts having the authority to review and strike down state statutes. [For more on this history, see Robert Parry’s America’s Stolen Narrative.]

Yes, I know today’s Neo-Confederates make much of the Tenth Amendment, which asserts that “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 the Right’s historical revisionists miss the key point here. The Constitution already had granted broad powers to the federal government so the states were left largely with powers over local matters — and even those actions could be struck down if they were found to violate federal law.

To further appreciate how modest the Tenth Amendment is, you must compare its wording with Article II of the Articles of Confederation, which is what it replaced. Article II stated that “each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated.” In other words, the power relationship between the states and the federal government had been flipped.

Still, today’s Neo-Confederates make mischief with the inconsequential Tenth Amendment, transforming it into some grand governing principle when it was just a rhetorical sop to the Anti-Federalists, who fiercely opposed the Constitution because they recognized what it was, a major shift of power from the states to the federal government.

Also, throughout American history, “states’ rights” have been associated with some of the most shameful episodes, including the secession of the Confederate states in defense of slavery and later the imposition of racial segregation across the South through legal trickery and terrorist violence.

Surely, the federal government has not been free from fault. It has too often participated in or tolerated racist and other anti-democratic acts, but it also has during some of the nation’s proudest moments intervened on behalf of human rights as enshrined in the Constitution. That history is now being tested again.

 [For a limited time, you can purchase Robert Parry’s trilogy on the Bush family for only $34. For details, click here.]

Investigative reporter Robert Parry broke many of the Iran-Contra stories for The Associated Press and Newsweek in the 1980s. You can buy his new book, America’s Stolen Narrative, either in print here or as an e-book (from Amazon and barnesandnoble.com).

Breeding Anti-US Suspicions

When U.S. policymakers throw their weight around internationally, they may think their actions are justified and perhaps in a narrow sense some are but the U.S. also building up a reservoir of resentment and suspicion that hurts American interests in the long term, as ex-CIA analyst Paul R. Pillar explains.

By Paul R. Pillar

A story from northwest Pakistan involves a discrepancy between reality and perception with regard to U.S. drone strikes. Last month two attacks in the tribal belt generated the kind of spreading news that has come to be routinely associated with the drones.

A couple of al-Qaeda types are killed, but so are several villagers. The Pakistani foreign ministry lodges a protest with the U.S. embassy. According to American officials, however, the United States and U.S. drones were not involved at all in the attacks. “They were not ours,” said one official.

American speculation is that the Pakistani military conducted the attacks and attributed them to the United States to escape blame for the collateral damage. If so, this represents a reversal of a previous Pakistani practice of claiming responsibility for what really were U.S. drone strikes, to escape the embarrassment of allowing the Americans to conduct, or not preventing them from conducting, attacks on Pakistani territory.

So a variable in this case is whatever public relations problem the Pakistani military and government most want to avoid in any given week. There is a larger phenomenon at work, however, which helps to account for the believability of the Pakistani cover story.

Once the United States gains a reputation for something, for good or for ill, the reputation not only becomes hard to shake but also gets applied by foreign populations in an exaggerated or overly expansive way. People are reacting to the reputation more than to individual events, because their perception of an event is heavily colored by the reputation.

This phenomenon can sometimes work to the advantage of the United States. It is involved in deterrence; a reputation for striking back can dissuade others from some transgression without actually having to strike them. But more often lately it has been a disadvantage.

This applies particularly to the reputation the United States has acquired for Muslim-bashing. Americans tend not to understand the phenomenon fully because they see this reputation as a bum rap and know their intentions are better than that.

They not only do not realize what is coloring other Muslims’ interpretation of American actions in their part of the world; they also miss how some of their actions are adding to the reputation and thereby coloring the interpretation of future events.

The policy lesson in this is to take full account of the reputation-based multiplier effect in weighing the costs and benefits of actions ranging from drone strikes to military deployments and much else. The policy-maker needs to realize how existing reputations will color how foreign publics and governments interpret whatever action is being contemplated.

He also needs to realize how the action may in turn affect the reputation of the United States and thus affect how the United States will be either thanked or hated for future actions, maybe even actions the United States itself does not commit.

Paul R. Pillar, in his 28 years at the Central Intelligence Agency, rose to be one of the agency’s top analysts. He is now a visiting professor at Georgetown University for security studies. (This article first appeared as a blog post at The National Interest’s Web site. Reprinted with author’s permission.)

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Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. He founded Consortiumnews.com in 1995 as the Internet’s first investigative magazine. He saw it as a way to combine modern technology and old-fashioned journalism to counter the increasing triviality and timidity of the mainstream U.S. news media.

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Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. He founded Consortiumnews.com in 1995 as the Internet’s first investigative magazine. He saw it as a way to combine modern technology and old-fashioned journalism to counter the increasing triviality and timidity of the mainstream U.S. news media.