American Right Ditches States, Embraces Corporations
February 24, 2009, 10:22 am
Filed under: Ian | Tags: ,

When Chief Justice Rehnquist came of age, being a conservative lawyer meant standing up for “states rights” against imagined encroachments by the federal government. As a Supreme Court clerk, Rehnquist famously argued in favor of maintaining segregation in Brown v. Board of Education, claiming that protecting racial minorities was somehow no different than pre-New Deal decisions striking down basic labor protections like overtime and the minimum wage:

I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by “liberal” colleagues, but I think Plessy v. Ferguson was right and should be re-affirmed. If the fourteenth Amendment did not enact Spencer’s Social Stations, it just as surely did not enact Myrddahl’s American Dilemma.

Fortunately, the Court ignored Rehnquist’s memo, but Rehnquist’s sense that the states must be protected from federal power animated his career.  Four years ago, when I was still in law school and Rehnquist was still Chief Justice of the United States, progressive lawyers were terrified by two of Rehnquist’s decisions—one struck down a federal law prohibiting guns in schools, the other struck down part of the Violence Against Women Act—that revived the dead-but-dreaming notion that certain powers are reserved to the states.  Both opinions relied on a kind of reasoning unseen since the pre-New Deal Court’s worst libertarian excesses, and concurring opinions by Justice Thomas, that openly pined for the days when the federal minimum wage and the federal ban on whites-only lunch counters were considered unconstitutional, did nothing to allay our fears.

William Rehnquist is dead, however, and his brand of conservatism may be on life support.  Since Rehnquist’s death, the Court’s federalism docket has focused largely on claims by corporations asking the Justices to misread federal law to preempt state law, not by parties trying to take a bite out of federal power.  Just like William Rehnquist came of age at a time when conservatives viewed cries of “states’ rights” as their best way to press back against social progress and pursue a deregulatory agenda, Chief Justice Roberts spent most of his career representing corporations who have no stake in debates about guns in schools or violence against women, but who hate state tort law because it is the best vehicle America has for keeping rogue corporations in line.

None of this is to say, of course, that I am no longer afraid of nuts like Justice Thomas who long to restore a kind of “Constitution-in-Exile” that leaves the federal government powerless to protect the American people.  But the battle lines are changing, and I, for one, do not welcome our new corporate overlords.


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