Several months ago, in a series of posts I looked at the ongoing argument throughout the nation’s history between the Federalists, who since the founding of the country supported a strong central government, versus the Anti-federalists, who favored a weak central government with strong state governments and a loose confederation of states. In the six-part series titled Civil War 2.0, I provided the historical context for how today’s war of words that can be found on the Internet, cable TV and in social media are similar to the arguments that were made in the past and which ultimately lead to the Civil War and segregation following the war. In the post titled Round Five – The Tea Party, I addressed how this historical argument ramped up once again when Barack Obama was elected president. That post included the list of the Tea Party’s core beliefs which are generally agreed upon by the numerous Tea Party organizations. Although these groups may place a different emphasis on what the movement stands for, they generally agreed on the following core beliefs:
A constitutionally limited government
Fiscal responsibility on taxation and spending
Unregulated free markets
Opposed to same-sex marriage
Opposed to abortion in all or most cases
In general, the first three are intended to restrict the authority of the federal government and its ability to protect individual rights and the last two are intended to use the power of the government, primarily state governments, to restrict individual rights for women, gays and lesbians.
Over the past few months we have seen significant steps taken by numerous Republican-controlled state governments, the Republican-controlled House of Representatives, and most importantly by the conservative U.S. Supreme Court, to advance these Tea Party core beliefs. These actions are leading to a deepening of the divide in the country. As Lincoln said in his famous address to the Republican State Convention in 1858, “A house divided against itself cannot stand.” At that time Lincoln was addressing the overriding divisive issue of his day, slavery. The country was deeply divided with the northern states opposed to any expansion of slavery into the new territories and for the most part were in favor of the complete abolishment of slavery, even in the southern states. The southern states not only wanted to maintain what was euphemistically referred to as their “peculiar institution”, they wanted to expand it into the new territories and states as they entered the union. At the heart of the argument was federal verses states rights argument that occurred between the Federalist and Anti-federalist during the ratification of the Constitution. Should each new state or territory be permitted to make its own decision on whether or not to permit slavery, or should there be a federal policy for new states entering the union?
The Kansas–Nebraska Act of 1854 created the territories of Kansas and Nebraska, which opened new lands for settlement, and had the effect of repealing the Missouri Compromise of 1820. The purpose of the Missouri Compromise was an effort to preserve the balance of power in Congress between slave and free states by admitting Missouri as a slave state and Maine as a free state, and prohibiting slavery in the Louisiana Territory north of the 36° 30´ latitude line. This stood until the Kansas–Nebraska Act of 1854 which allowed the settlers in those territories to determine through “Popular Sovereignty” whether they would allow slavery within each territory. The act was designed by Illinois Senator Stephen A. Douglas. But Douglas’s concept of “Popular Sovereignty” was just a rehash of South Carolina Senator John C. Calhoun’s old “States Rights” argument. It was Calhoun – who 30 years prior to the Civil War was laying the groundwork with his states rights and nullification arguments – which provided the justification for the south’s secession and philosophical underpinnings that ultimately lead to the Civil War. Douglas, who had the famous debates with Lincoln, revived Calhoun’s old argument and gave them new credibility since Douglas was a northerner.
The initial purpose of the Kansas–Nebraska Act was to open up new farmlands and make way for a new Transcontinental Railroad. However, because “popular sovereignty” was written into the proposal, it became problematic when it was left to the voters of the moment to decide whether slavery would be allowed. The result was that both pro- and anti-slavery groups flooded into Kansas, which lead to a bloody civil war that became known as “Bleeding Kansas” or “Border War.” At one point, Kansas had two separate governments, each with its own constitution, although only one was federally recognized.
Three years after the Kansas-Nebraska Act was adopted, the Supreme Court declared the Missouri Compromise was unconstitutional in the infamous Dred Scott decision. In Dred Scott there were two main legal rulings; the first was that African Americans were not citizens, and therefore had no standing to sue in federal court, and the second was that the federal government had no power to regulate slavery in any territory acquired after the creation of the United States. Thus further deepening the divide in the country over slavery.
It was with these recent events in mind that Lincoln delivered his “House Divided” speech and concluded “I do not expect the Union to be dissolved — I do not expect the house to fall– but I do expect it will cease to be divided. It will become all one thing or all the other.” Two years after this speech, Lincoln was elected President on November 6, 1860. South Carolina seceded from the union on December 20, 1860 followed by ten other southern states. Kansas was admitted to the Union as a free state on January 29, 1861. And on April 12, 1861 the Confederate Army fired on Fort Sumter which began the Civil War, and as the saying goes, the rest was history. Eventually, after 625,000 Americans lost their lives in a bloody Civil War, the house was no longer divided.
So what does this brief summary of pre- Civil War events have to do with what is happening today? Once again the country is deeply divided; this time over abortion rights, gay rights and the size and role of the federal government. And once again at the heart of the argument is the same federal verses states rights argument that occurred between the Federalist and Anti-federalist during the ratification of the Constitution and leading up to the Civil War. The Tea Party movement is just the latest incarnation of the Anti-federalist.
Recently the Supreme Court released a slew of decisions for the 2012-13 court session. In total the court’s rulings did significant damage to the federal governments authority to establish national policies and its ability to protect individual rights for all citizens no matter where they live. They also limited the governments ability at all levels to regulate corporations. To the casual observer, lazy journalist and pundits it may appear that the Supreme Court was all over the place. For instance, saying in one decision that the University of Texas can consider race as one of the factors in its admission policy in FISHER v. UNIVERSITY OF TEXAS AT AUSTIN. And in another case, SHELBY COUNTY v. HOLDER, that the formula based on race or color used in the Voting Rights Act (VRA), which was reauthorized by Congress in 2006, and subjects certain states and political subdivisions with a history of racial discrimination to obtain pre-clearance from the justice department before implementing changes to their voting laws, was unconstitutional.
With respect to gay rights, the court found that Section 3 of the Defense of Marriage Act (DOMA), which barred the federal government from recognizing legal marriages of lesbian and gay couples, was unconstitutional in the case of UNITED STATES v. WINDSOR. But in the HOLLINGSWORTH v. PERRY case they wouldn’t rule on the federal constitutionality, ducking a decision because they determined that the plaintive didn’t have standing to defend the California Proposition 8 anti-gay marriage Constitutional amendment. On the surface it appears that two same-sex marriage cases were big victories for gay and lesbian community, and they were a step in the right direction, but if you read deeper into these decisions what you find is that the court has created a two-tier system. This will only lead to a deepening of the divide much in the same way that PLESSY v. FERGUSON created the principal of “separate but equal”. In some states gay and lesbian couples now have their full constitutional rights and in others they do not.
However, if you read the court’s other decisions beyond the high profile ones, what you find is that the big winners in almost every decision were corporations and states. The “states rights” argument is what many of the decisions were based upon. The big losers were individuals and the power of federal government to enforce individual rights. The Supreme Court has exposed its Tea Party wing with these decisions. But based on their past rhetoric you might think that the Tea Party groups would be outraged over the court’s decisions that trampled individual rights, but I have not yet heard any of these groups complaining. Have you? Why is that, when we have constantly heard Tea Party groups talking about individual rights and freedoms and seen them waving their “don’t tread on me” flags? If we look deeper into the rulings maybe we can answer that question.
Let’s start with the two same-sex marriage cases. In the California Proposition 8 case, the California State Supreme Court had ruled that limiting marriage to only opposite-sex couples violated the state’s constitution. In response, a group which opposed same-sex marriage got an initiative on the ballot to amend the State Constitution to define marriage as a union between one man and one women, and it passed. This resulted in some same-sex couples being officially married since their marriages occurred before Proposition 8 was passed and others were now prohibited from marrying. So same-sex couples who wanted to marry filed a federal lawsuit challenging Proposition 8 as unconstitutional under the “equal protection” clause of the 14th Amendment of the U.S. Constitution. When state officials refused to defend the Proposition 8 amendment to the State Constitution in federal court, the Federal District Court allowed the proponents of the ballot initiative to defend it. The District Court had a trial and declared that Proposition 8 was unconstitutional. The proponents of Proposition 8 appealed to the Ninth Circuit Federal Appeals Court and lost. They then appealed to the U.S. Supreme Court. Here is where is starts to get tricky. The Supreme Court found that the proponents who defended Proposition 8 did not have “standing” to defend the case, so they vacated the ruling and remanded it back to the lower court. In the majority’s opinion they stated “The Court does not question California’s sovereign right to maintain an initiative process or the right of the initiative proponents to defend their initiatives in California courts. But standing in federal court is a question of federal law, not state law.” So when the state decided not to appeal the District Court’s ruling that Proposition 8 was unconstitutional, the Supreme Court has said that is where the case should stop. That is good if you are a same-sex couple that lives in California. But what if you live in Alabama? If it is unconstitutional to prevent a same-sex couple from marrying in California, why isn’t it in Alabama? Don’t we all live under the same Constitution? Before we can answer this question, let’s look at the other case that dealt with same-sex marriage, DOMA.
In the DOMA case, the Supreme Court found that Section 3 of the Defense of Marriage Act was unconstitutional. Section 3 read as follows, “Definition of marriage: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” In the majority opinion, the court reasoned that the principal effect of DOMA was to identify and make unequal a subset of state-sanctioned marriages. The case was about a dispute over the payment of an estate tax. Edith Windsor and her spouse Thea Spyer were married in Canada in 2007, and the State of New York where they lived recognized their marriage. When Spyer died in 2009, the IRS said Windsor owed a substantial inheritance tax because the federal government did not recognize their marriage because of DOMA. Ironically, when Spyer died in 2009, New York had not yet approved their same-sex marriage law, but they still recognized the marriage that occurred in another jurisdiction. Ms. Windsor sued in federal court and sought a refund of the estate tax contending that DOMA violates the principles of equal protection incorporated in the Fifth Amendment. She won at the District Court and the IRS was ordered to refund her tax payment with interest. The case was appealed to the Second Circuit Appeals Court, but the Justice Department decided not to defend the constitutionality of Section 3 before the Appeals Court. So the appeal should have been withdrawn and the tax refund issued. But the Republican-controlled House of Representatives intervened in order to continue the appeal of the District Court’s ruling. Never mind the fact that we were all taught that it is Congress’s job to pass the laws, the executive branch’s job to implement the law, and the court’s job to interpret the law. It was working as it should right up to the point when the District Court ruled DOMA was unconstitutional and then the executive branch agreed with that decision and decided to no longer pursue an appeal. However, not satisfied with this outcome, the House of Representatives decided they would take on the role of the executive branch. But that is a whole other constitutional issue. The case proceeded and the Appeals Court upheld the District Court and then the Supreme Court upheld the Appeals Court.
So the good news is that the Supreme Court said that the federal government cannot create inequality in the federal codes when the State of New York’s objective was to eliminate the inequality. But did the Supreme Court recognize that same-sex and opposite-sex couples needed to be treated equally? No, the Supreme Court’s decision only applied to New York and the other twelve states, plus the District of Columbia, that recognize same-sex marriage. What the court said is that they only recognize the inequality if your state says so. That means if you live in one of the other thirty-eight states, you are still unequal and that is just fine with the Supreme Court. Your state government now gets to decide if you will have to pay a federal estate tax if you are part of a same-sex couple. So the Supreme Court didn’t really find on behalf of Edith Windsor, their finding was on behalf of the State of New York. Ms. Windsor was lucky that she lived in a state that recognized her marriage from Canada because if she had lived in Alabama, she would not have gotten her estate tax refunded. Now is this what you would call equal justice under the law?
Furthermore, the Supreme Court chose to ignore Section 2 of DOMA, which is blatantly unconstitutional on its face. Section 2 reads as follows; “Powers reserved to the states: No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.” But Article IV, Section 1 of the Constitution says “Full Faith and Credit shall be given in each State to the public Acts, Records , and judicial Proceedings of every other State.” And Section 2 says “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” This is why marriages between opposite-sex couples are recognized in other states when they move and they are not required to get another marriage license in their new state of residence. But as it stands now, if a same-sex couple such as Kris Perry and Sandy Stier, who just won their case in the Supreme Court and are now married, were to move from California to Alabama, they would no longer be legally married in the eyes of the state or the federal government. So if a same sex couple is driving across country from Massachusetts to California, when they leave their home state they are married. They are still married as they drive through New York, but as soon as they hit the Pennsylvania state line, they are no longer married. When they are in Ohio, Indiana, Illinois they are still unmarried, but once they get to Iowa, they are married again. After they leave Iowa, they are unmarried again until they reach California. So they better hope they don’t have an accident that requires hospitalization in one the states that doesn’t recognize same-sex marriage because their partner can be denied visitation rights at the hospital. So to answer the earlier question, don’t we all live under the same Constitution, the Supreme Court’s answer was a resounding NO!
Why would the Supreme Court leave such a mess? Because the real purpose behind their rulings was not to rule in favor of individual rights or the federal government’s ability to protect those rights, but rather the court’s purpose was to rule that whatever a state decides those rights should be, is what your rights are. If the individuals who brought the cases happened to benefit, that was just a happy coincidence. This is where the Supreme Court has shown itself to be controlled by a Tea Party majority. They were advancing the “state rights” argument. So why haven’t we heard the Tea Party groups complaining about the loss of individual rights? Because the Tea Party movement has never been about protection of individual rights. They are all about a states right to be able to discriminate how they wish. Take a look back at their core beliefs and see whose rights are being protected.
Some will argue that the Supreme Court prefers to make their rulings on the narrowest grounds possible and that the constitutionality of Section 2 of DOMA was not directly in front of them. For other Supreme Courts that may have been true. But for the Robert’s Supreme Court, all you need to do is look at CITIZENS UNITED v. FEDERAL ELECTIONS COMMISSION that was decided in 2010. In that case Citizens United, a not-for-profit corporation, wanted to run commercials for a documentary they had produced that was critical of Hillary Clinton within 30 days of a primary election. They sought declaratory and injunctive relief from the Bipartisan Campaign Reform Act of 2002 (BCRA), also known as McCain-Feingold, arguing that it was unconstitutional to prohibit them from running their television ads 30 days before an election and that the BRCA’s disclaimer, disclosure and reporting requirements were also unconstitutional. The District Court denied Citizens United preliminary injunction. They appealed to the Supreme Court and, after hearing the arguments on the narrow issues of the limited case that was in front of them, Chief Justice John Roberts directed the two sides to prepare new arguments for the much broader issue that federal laws prohibited corporations and unions from using their treasuries to make independent expenditures for speech that is a “electioneering communication” or for speech that expressly advocates the election or defeat of a candidate. After the scope of the case was expanded by Chief Justice Roberts, and reargued on the much broader issue, the court used its decision to strike down 100 years of election laws, going all the way back to the Tillman Act of 1907. Ironically, both DOMA and Citizens United were decide by a 5-4 majority with Justice Anthony Kennedy being the swing vote and writing the opinion for the majority. Citizens United was hardly a display of judicial restraint and one of the most blatant displays of judicial activism in the court’s history. So the Robert’s court could have chosen to also strike down Section 2 as unconstitutional based on their own recent history of judicial activism.
But the most obvious and damaging of the “states rights” decisions that came from this year’s Supreme Court decisions was the VRA decision in SHELBY COUNTY v. HOLDER. In effect, the ruling gave the green light to states if they want to discriminate against some of their citizens right to vote; the court said to go right ahead. Within two hours of the decision being made public, the State of Texas Attorney General announced that they would proceed with the implementation of the voter ID and redistricting laws that had already been found to be discriminatory and unconstitutional by a three-judge panel of the federal court. Texas tried to implement these changes prior to the 2012 elections but was prevented from doing so when the Justice Department used the pre-clearance authority provided under Section 5 of the VRA because Texas was one of the jurisdictions subject to the review under Section 4(b) of the VRA. A few hours later, Mississippi said they would also proceed with their new voter ID law. Numerous other states that were also subject to pre-clearance have announced that they too will proceed with implementing new laws that had been blocked or that they would be introducing new laws in the near future. The Supreme Court’s decision in SHELBY COUNTY v. HOLDER did not say that the finding by the three-judge panel in the U.S. District Court was wrong when they found that the Texas voter ID law imposed “strict, unforgiving burdens on the poor” by charging those voters who lacked proper documentation fees in order to obtain a valid election ID card. The law would have required a person who wanted to vote, that didn’t already have one of the accepted forms of ID, to travel to a State Department of Public Safety office to get their election ID card. While the state claimed that these cards were free, in reality the voter would have to pay to obtain the documentation necessary to receive the “free” voter ID card. In addition, not all Texas counties have Department of Public Safety offices located within them, so it would require some voters to travel over 200 miles to get to one of the offices. Of course that would have to be during the work day, which for many poor people would be an additional financial burden to lose a days pay plus the travel cost. The Supreme Court did not even say in their decision that the Section 5 pre-clearance requirement was unconstitutional. In fact, they upheld that it was constitutional. Instead they said that the formula under Section 4(b) that is used to determine which jurisdictions are subject to the pre-clearance requirement was unconstitutional. Their rationale was that even though Congress had re-approved the VRA in 2006 and retained the formula that was in the prior reauthorization, in the court’s opinion this formula was too old and had reached its expiration date. So they threw it out like spoiled milk. Of course they said Congress was free to come up with a new and improved updated formula to determine which jurisdictions would be subject to a Section 5 pre-clearance review. But in the meantime Section 5 will no longer be in effect because nobody is subject to its requirements. So the Supreme Court was very clever in saying the pre-clearance requirement under the VRA is still constitutional, but you just cannot apply it to anyone; that is until we decide that we like the new formula Congress might develop.
Besides the obvious impact on minority voters who will now be subject to the discriminatory whims of of their state and local governments, the most radical part of this decision is that the court has set a precedent that they will now review and be the final arbiter of how Congress goes about reaching a legislative decision. If they are not pleased with Congress rationale or outcome, they will strike it down and tell Congress to try again. In effect, the court has given themselves the equivalent of the presidential veto power. Similar to the Voting Rights Act, there are many federal laws which use formulas for making determinations of who gets covered or how federal funds are distributed. Many of these formulas have been used for decades, just like Section 4(b) of the VRA. But now the court has set itself up to review every one of these formulas to decide if they are also too old. If the Supreme Court were to use the same reasoning for other laws, what else might they find unconstitutional? For the VRA, they said we see less discrimination today because more minorities are registered to vote and actually voted in the last election than was the case in 1965. Therefore maintaining the same VRA formula that achieved these results is now unconstitutional. If this type of reasoning were to be applied to other federal laws such as food safety, they could declare that because we see fewer deaths from food poisoning today, then food safety laws are now unconstitutional. That is until Congress could gather new evidence and write new laws for food safety. In the meantime so what if a few people die or loose their right to vote. In effect, the Supreme Court has set the precedent that they can now pick and chose what federal laws they would like Congress to re-write. This is extremely dangerous and a classic case of judicial activism.
What the Supreme Court has done this session, and in prior ones under the Robert’s court, is to lay the groundwork for two Americas, and give it legal force. This is no different than the infamous PLESSY v. FERGUSON of 1896 which confirmed the principal of “separate but equal” and led to decades of legalized segregation and discrimination. If your state is willing to give or protect your rights, such as same-sex marriage or a women’s right to chose an abortion, then you are one of the lucky ones. But if you live in a state that restricts your right to vote, or your choices when it comes to having an abortion, or says that same-sex couples don’t deserve the same rights under law that opposite-sex couples enjoy, then you are less equal and out of luck. The Supreme Court is saying that it will not step in and protect these individual rights across the entire country. The Robert’s court has given their blessing to creating a divided house.
As Lincoln said, “A house divided against itself cannot stand.” I agree with Lincoln’s conclusion, “I do not expect the Union to be dissolved — I do not expect the house to fall– but I do expect it will cease to be divided. It will become all one thing or all the other.” It took a Civil War to resolve the slavery issue. Will issues like abortion rights, same-sex marriage rights, or voting rights lead to a second Civil War? Nobody can know for sure one way or the other. But wars are often triggered by highly charged emotional issues. If the southern sates begin to feel that the advances they are making in restricting abortion and voting rights, or their laws prohibiting same-sex marriage rights are under attack by the federal government at some future point, will they follow the same path as before and secede from the union? Might this be the trigger that starts a second Civil War? We don’t know if it will go this far; but one thing that we do know is that the Tea Party wing of the Supreme Court has provided the legal justifications to deepen the divide between those that support federalism and those that favor states rights. It is the same old Federalists verses Anti-federalists argument all over again.