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Debunking the Republican Myths of Constitutional Affinity and States’ Rights Supremacy

In Other Words, They May Not Be As Smart As You Think They Are

Rarely is there a debate with a Republican friend that does not end with that person invoking a proclaimed superior constitutional affinity. Republicans, or perhaps more accurately conservatives, believe and everyone else seems reflexively to concede that their political philosophy is more closely honed to the “true meaning” of the Constitution and the “actual intention” of the Founding Fathers. Think about the conservative constitutional theory of “Originalism” made famous by the late Justice Antonin Scalia. It almost sounds like he was right there at its creation, squeezed in between Ben Franklin and James Madison. Non-conservatives, it is claimed, know nothing of these early days and are off employing “judicial activism” because they either do not understand the Constitution or cannot handle its actual directives.

Interestingly, as a lawyer who practiced in the federal judicial system for sixteen years, the only acts of bald-faced judicial activism I ever witnessed were at the hands of so-called conservative jurists appointed by Republican presidents. That experience was shared by the nation recently when the conservative Supreme Court justices partially lifted a stay of President Trump’s travel ban by exercising blatant activism. They created out of whole cloth an exception that allowed foreign visitors to enter the United States as long as they had a “credible claim of a bona fide relationship with a person or entity in the United States.” Not a single pundit noted that was rank judicial activism with no mooring in the Constitution or the law. The flat-footed acceptance of activism by conservative justices reflects our collective concession that conservatives are somehow more knowledgeable of, or more faithful to, our nation’s founding concepts than anyone else. Not so.

Too often, the understanding conservatives do have of our founding documents, or the framers of them, is warped, misinformed or flat wrong. That is because philosophy largely based on propaganda, as much conservative philosophy is today, relies heavily on absolute conviction. Few things evoke absolute conviction as quickly as invoking our cherished founding principles. Few people are constitutional scholars and all presume that no one would recklessly wield incorrect historic references easily fact-checked, so when a person declares a conservative policy is rooted in our founding concepts the conversation ends and victory goes to the misinformed.

For instance, conservative memes are regularly posted on social media to end all debate, yet they flagrantly misquote or falsely cite words of our Founding Fathers. A recent meme boldly asserts that Thomas Jefferson declared the virtues of modern day conservative principles by stating: Most bad government has grown out of too much government. Nope, he did not. According to the Thomas Jefferson Foundation, that contrivance is a misstatement of an excerpt from a speech delivered by John Sharp Williams, not Thomas Jefferson.

The recent attack by conservatives of National Public Radio’s July 4th Twitter recitation of the Declaration of Independence is another fitting example. Conservatives, apparently unaided by the context clues of the date and similar postings by other news organizations, had not the vaguest familiarity with a document in which they regularly wrap themselves to halt debate.

So, too, the conservative philosophy of states’ rights supremacy is utterly misguided. The notion that states are supreme and the federal government is meant to be nothing more that an impotent, functionless overlay is based on the rejected and repealed Articles of Confederation. It was actually known as the Articles of Confederation and Perpetual Union of the States, and it preserved preeminent state independence, while providing for a very limited central government. It was a functional disaster that put the sustainability of our fledging country in peril.

The United States Constitution replaced the failed Articles of Confederation in 1789. That Constitution provided for federal exclusive and concurrent powers making for a stronger central government, which was checked by co-equal federal branches – not the states. The reason the Articles of Confederation failed in application was due to the precise reason conservatives oddly continue to tout its relevance – absolute state supremacy over federal government interference.

Confederates of the South refused to accept the applicability of our constitutional principles, opting instead for the defunct concepts of the Articles of Confederation that would have continued slavery by states. They called their proposed form of government the Confederate States of America. We fought a long, bloody war over it, and the Confederates lost confirming their profound misunderstanding of “states’ rights.” We then confirmed through the Fourteenth Amendment, lest there be any continuing confusion, that the federal government is empowered as the steward of our federal constitutional rights regardless of what state we live in.

Yet, again, during the Civil Rights era, civic slow learners invoked concepts of the Articles of Confederation that would have tolerated state Jim Crow laws regardless of federal constitutional directives and other laws to the contrary. The U.S. Supreme Court and federal Marshals reminded them otherwise.

In his new book Smashing the D.C. Monopoly, conservative former Senator Tom Coburn resurrects the premise of the Articles of Confederation by suggesting Republican governors convene a Constitutional Congress under Article V of the Constitution in order to “limit the power and jurisdiction of the federal government,” among other proposed federal constrictions. Suddenly, the chants to “drain the swamp” take on a disturbing undertone. Smash, or drain, D.C.: Let us rid ourselves of all this federal mumbo jumbo we know as the United States of America and return to the failed model of dismantling the federal government – and our national cooperation and coordination – in favor of a go-it-alone states first government.

Some things are better left to the states and the people as the Tenth Amendment to the Constitution expressly directs. Certainly, states and states’ rights are a centerpiece of our form of government: they are not, however, the predominant force. The misunderstanding of that simple premise is the basis for a great deal of our current political discord.

The conservative ideological drive for a Confederation, as opposed to a Federation with an empowered centralized federal government such as we have enjoyed for nearly 230 years, explains so much. From an ideological perspective, conservatives oppose federal domestic policies regardless of the resulting synergies, shared cost or coordination. Conservatives do not want national economic infrastructure such as Medicaid, Medicare, or Social Security Insurance, because those policies acknowledge the functional role and broad protection of a centralized Federation in partnership with the states. Conservatives simply cannot and will not give up the ghost of the Confederation.

This explains our current healthcare debate. When progressives talk about healthcare and other policies that profoundly affect our national economy, we can see the benefit of broader directives of national minimum standards and coordinated systems. Progressives see that those standards and systems save us money by covering millions of people with basic healthcare, head off expensive conditions through preventative care, stabilize resource strained-states, and establish a real market cost for that healthcare. When it comes to a complex economic issue that either relegates millions of our citizens into poverty or provides them access to a better quality of life, progressives believe economic infrastructure policy should be implemented by national standards and not left to the Russian roulette of state residency.

Conservatives, however, urge that we let each state’s “free market” handle it. This purported state based healthcare free market has failed us for decades, mostly because it is nothing of the sort. The healthcare industry is a market pocked by anomalies. It has barriers to entry of licensing and cost. It has the super-profits of insurance and pharmaceutical companies. It has disparate knowledge because patients know little about the type of care they need or its cost. It highlights inequities in the resources of the fifty states that cause the market to behave differently in each. It creates hidden costs as those of us who are insured end-up absorbing bad debt held by our healthcare providers. Despite this clear evidence, conservatives hold fast to the Freddy Krueger of the Confederation: just let the states handle it and it will some how be better.

It is time we have a national awakening to a few basic facts. Conservatives know no more about the Founding Fathers or our founding documents than the rest of us. We are not a Confederation. Confederations do not work, and they result in dangerous rivalry, inequity and instability. Conservative ideology based on extreme states’ rights philosophy is the antithesis of our nation’s founding documents and the men who created them.

If we are to reach viable solutions to the national challenges we face, we must first acknowledge the type of government we actually have and how we might use it as a tool for policy that positively affects the lives of our citizens.

Teresa Tomlinson is a long time Democrat serving in the non-partisan position of Mayor of the Columbus, Georgia Consolidated Government. Mayor Tomlinson was first elected in 2010 and is the city’s first female mayor. Columbus, Georgia is a city of 200,000 people, ninety-miles southwest of Atlanta. Columbus is a highly diverse, progressive community. It is home to the international headquarters of Aflac and TSYS. It also is home to one of the world’s largest military training bases, the Ft. Benning Maneuver Center of Excellence

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