The New Yorker recently published a profile of President Barack Obama, written by David Remnick. Eighteen pages and approximately 17,000 words long, it’s the sort of long-form journalism many of us yearn for in a blighted age of listicles and blurbs and click-bait articles the titles of which sound more like threats than topics of meaningful discussion.

In the piece, the President says:

“There is a historic connection between some of the arguments that we have politically and the history of race in our country, and sometimes it’s hard to disentangle those issues [ . . . ] You can be somebody who, for very legitimate reasons, worries about the power of the federal government—that it’s distant, that it’s bureaucratic, that it’s not accountable—and as a consequence you think that more power should reside in the hands of state governments. But what’s also true, obviously, is that philosophy is wrapped up in the history of states’ rights in the context of the civil-rights movement and the Civil War and Calhoun. There’s a pretty long history there. And so I think it’s important for progressives not to dismiss out of hand arguments against my Presidency or the Democratic Party or Bill Clinton or anybody just because there’s some overlap between those criticisms and the criticisms that traditionally were directed against those who were trying to bring about greater equality for African-Americans. The flip side is I think it’s important for conservatives to recognize and answer some of the problems that are posed by that history, so that they understand if I am concerned about leaving it up to states to expand Medicaid that it may not simply be because I am this power-hungry guy in Washington who wants to crush states’ rights but, rather, because we are one country and I think it is going to be important for the entire country to make sure that poor folks in Mississippi and not just Massachusetts are healthy.

When the President draws a connection between contemporary advocates of limited government and the vicious history of American apartheid, the public is wont to think that this connection is accepted truth. He sets a new starting point for discourse, a new baseline for measuring the claims of his political opponents. He leads the average citizen to think that there’s no argument needed for these conclusions . . . even though an actual argument is definitely called for to support accusations of this sort.

Nevertheless, he might be onto something. No. Seriously…

Let’s step back a bit.

When the President refers to “the history of states’ rights in the context of the civil-rights movement and the Civil War and Calhoun,” he refers in part to John C. Calhoun. Calhoun was the nineteenth-century politician from South Carolina whose advocacy of the doctrines of state nullification and interposition provided much of the South’s justification for slavery and ultimately its bid for secession. (Incidentally, Calhoun also yields some grim Google Image search results.) The theory of state interposition asserts the right of states — not solely the federal judiciary, per judicial review — to declare federal actions unconstitutional. Closely related, the theory of nullification holds that the states have the right to nullify federal laws that are deemed unconstitutional and to prevent enforcement of such laws within the state.

This extreme view of states’ rights persisted after the Civil War, into the Civil Rights era. In the wake of Brown v. Board of Education, some southern states invoked interposition and nullification in attempts to resist the Supreme Court’s mandate to desegregate schools. In Arkansas, for example, the state legislature amended the Arkansas constitution to require segregation and passed a law explicitly relieving children from mandatory attendance at racially integrated schools. In 1958, in Cooper v. Aaron, the Supreme Court rejected the argument that state officials were not bound by Brown, regardless of any contrary state laws. The Court expressly held that states could not use interposition or nullification to unburden themselves from the requirements of federal law.

Calhoun is to states’ rights what Mengele is to genetics. Each started off with some not-so-bad ideas — basic thoughts on how much sovereignty states should have or how genes work. Then they took those ideas to awful extremes, twisted them, applied them in even more awful ways that yielded even more awful consequences, leading to human-rights-violation Rat Kings. It’s unfair to suggest, though, that everyone who believes in any version of federalism or any application of genetics automatically endorses the outcomes of Calhoun or Mengele. Just because I disagree with the President about the scope of the Commerce Clause doesn’t mean that I am interested in racial oppression of my fellow citizens, any more than a guy working in a gene therapy lab today is interested in pursuing the horrors of Nazi Germany.

More than once, I have heard a conservative or libertarian ask, “What could possibly make someone think that the feds are more trustworthy or capable than state and local government?” This question is usually asked rhetorically, since even most (though not all!) staunch libertarians are satisfied with a national defense force, for example. The question is asked because many on the Right have a hard time understanding why a rational person would want to put more power in the hands of a distant, bloated bureaucracy. The implication of the question is clear: the bigger the government, the less likely it is to effectively protect our interests, or to even know what our interests truly are. Generally, I agree.

However, for many Americans, particularly many black Americans, the question is not rhetorical. The question has a two-word answer: civil rights. The federal government intervened in individual states’ efforts to perpetuate first slavery, then Jim Crow. On that basis, a suspicion lurks that states often cannot be trusted to protect the rights of vulnerable minorities. By extension, anyone who wants to vest more power in those “untrustworthy” states starts to look a little suspect themselves. If you happen to count yourself among a vulnerable minority group, needless to say, this is justifiably troubling.

Despite some incendiary rhetoric, the President’s underlying concern about the federal government historically doing a better job than the states at protecting and advancing the interests of black Americans deserves a response. I wouldn’t be a conservative or libertarian if I didn’t think a cogent response was possible. Unfortunately, too many legal and political thinkers of my persuasion have done poorly at giving one. Why?

For one thing, I think that many white conservatives are pretty oblivious to the importance of this issue to many black Americans. Acknowledging the residual impact of this history is not the same as accepting the Left’s model for government.

The Right would do a lot better at marketing our vision if we appreciated this point. Instead of clearly presenting how contemporary federalism can be a means to achieving liberty and justice for all Americans, including minorities, many conservatives scratch their heads and wonder why there aren’t more black Republicans. Worse still, instead of trying to understand what matters to their opponents and why, many conservatives assume that it is an unreflective dogmatism that keeps many black voters from favoring conservatives.

Also, many white Americans simply resist having conversations about race. They fear saying the wrong thing and appearing bigoted. They’re often too uncomfortable to speak directly to their black peers about these things or to ask questions. And they’re often too worried about perception to speak publicly in more than generalities and platitudes.

There’s an important conversation to be had, even if we disagree. We’re missing out as a society by not having it. Insofar as the President’s comments point toward a dialogue and not accusatory conclusions, both conservatives and liberals should look to where he’s pointing.


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at [email protected]


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