Do boots qualify as speech?

Photographer: Jim Watson/AFP/Getty Images

Republicans' Capricious Embrace of States' Rights

Albert R. Hunt is a Bloomberg View columnist. He was the executive editor of Bloomberg News, before which he was a reporter, bureau chief and executive Washington editor at the Wall Street Journal.
Read More.
a | A

It was a good week politically for Republicans, who won by losing.

QuickTake Gay Rights

Namely, the Supreme Court decisions upholding the Affordable Care Act and same-sex marriage could diminish the potency of these issues, which threatened to tie Republicans into knots.  The remarkable rapidity with which Southern conservatives have called for removing the Confederate flag, in the wake of the vicious racist murders in Charleston, South Carolina, removes another potential problem.

As much as the party's base hates Obamacare, the court made clear that it's now a legal reality. Republican congressional leaders would be smart to work with the administration on addressing the law's imperfections, and get concessions in the process. The challenge on same-sex marriage is to prevent the right wing from keeping the issue front and center. 

When the question of removing the Confederate flag from the South Carolina Capitol grounds surfaced, the initial reaction of some conservatives, including Republican presidential candidates, was to say that it was up to the state.

This was a bogus "states' rights" claim. The flag, a symbol of racial hatred, is now coming down across the South.

But the question of states' rights is central to political conservatives. Appealing to the Constitution -- the 10th Amendment says the federal government only has the powers specifically delegated to it -- and to good policy, they argue that the government closest to the people is best able to decide.

It's undeniable that federal regulations and mandates can be too intrusive and that many public policy innovations occur at the state and local level. Yet the increasing mobility of American society, and issues such as communications and transportation, as well as the desire of major businesses for policy clarity, often require national prescriptions.

Moreover, conservatives often forsake the principle of states' rights when it doesn't fit their ideological goals. 

A contemporary example is the decriminalization of marijuana in a number of states, and its acceptance for medicinal purposes in about two dozen. Starting with Colorado, four states and the District of Columbia have legalized marijuana for recreational use.

But a Republican presidential candidate, Senator Marco Rubio, and a probable contender,  Governor Chris Christie, have vowed to brush aside local laws such as Colorado's if elected. "I will crack down and not permit it," Christie declared. Others, including Jeb Bush, have waffled.

Even after the same-sex decision on Friday, candidates such as Wisconsin Governor Scott Walker insisted this was a states' rights issue and called for a constitutional amendment to overturn the action.

The principle that local government knows best is often ignored by conservatives when it comes to the nation’s capital, which was granted home rule 40 years ago with Congress retaining the veto right. Lawmakers, principally conservatives, have second-guessed the residents on gun controls, on gay marriage and now on a District law that prohibits discrimination against employees who seek contraception, family planning counsel or an abortion. 

The selective appeal to states' rights extends beyond hot-button social issues. A few years before the subprime mortgage lending crisis, the George W. Bush administration ruled that lax federal regulations pre-empted some tough state laws governing irresponsible mortgage lending.

When the Dodd-Frank bank reform legislation was considered, conservatives opposed provisions to give states more authority to ensure the financial protection of consumers and in regulating lending practices of national banks. "We won 90 percent, despite the unanimous opposition of House Republicans and the big banks," former Representative Barney Frank recalled.

States' rights were invoked fraudulently during the South Carolina flag episode. The flag wasn't put on the State Capitol grounds in the immediate aftermath of the Civil War, to celebrate fallen veterans, but in 1962, almost 100 years later. It happened in the middle of the civil rights movement to seek basic rights such as voting and public accommodations that were denied many black Americans. The flag was put up to celebrate segregation.

And it's worth remembering that the Confederacy invoked states' rights, as a cover for the defense of slavery, to justify taking up arms in the Civil War.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Albert R. Hunt at ahunt1@bloomberg.net

To contact the editor on this story:
Max Berley at mberley@bloomberg.net