WITH ALL OF official Washington in the grip of Republicans, and an autocratic — not to say imperial — figure in the White House, many liberals are taking a second look at the 10th Amendment. That’s the one where all power not explicitly granted to the federal government by the US Constitution devolves to the states. “Progressive federalism,” a term that once might have been considered an oxymoron, is coming into vogue as worried Americans look to the states to protect their rights or to resist President-elect Donald Trump’s more despotic policy proposals.
Already, states are preparing rearguard actions against executive overreach. California has declared that it will remain committed to the Paris climate accords even if Trump, as threatened, pulls the United States out of the global agreement. Just last week the California state legislature hired former attorney general Eric Holder to help craft legal strategies to thwart the Trump agenda. A number of cities have pledged to continue protecting undocumented immigrants from deportation roundups despite Trump’s threats to cut off their federal funding. “The states are where it’s at,” says Carol Rose, director of the Massachusetts Civil Liberties Union. “We are the safe havens of democracy.”
It’s ironic that progressives find themselves looking for decentralized solutions to overweening power in Washington. Federalism, and its coarser cousin “states’ rights,” have long carried a noxious whiff of bigotry because of Southern-state resistance to civil rights and the abolition of slavery. And, since at least the 1960s and President Johnson’s Great Society, liberals have looked to Washington for broad safety-net protections, and to the Supreme Court to confer an ever-widening circle of liberties. Small-government federalists, by contrast, have often pushed local control as a cover for retrograde policies on civil rights and social welfare, including deep budget cuts masquerading as “block grants.”
Conservatives are calling out the new fair-weather federalists as hypocrites, with snarky comments about liberals finding their inner Jeffersonian now that big government has gotten scary. But Massachusetts, at least, has walked the federalist walk, with pioneering “laboratory of democracy” experiments in same-sex marriage and universal health care that eventually became national law, just as the Jeffersonians intended.
Republicans aren’t immune to instances of hypocrisy, either. Several red state legislatures, ostensibly in favor of local control, have blocked progressive policies adopted in their own cities, such as increases in the minimum wage, paid sick leave, or bans on hydraulic fracking. In another twist, cities or states that resist Trump’s deportation plans may find protection in a 2012 Supreme Court ruling that blocked President Obama from denying federal reimbursements to states opposing the Affordable Care Act. As with most constitutional debate, who most embraces the principles of the 10th Amendment depends on whose ox is being gored.
Next to California, Massachusetts may be in the best position to challenge Trump’s policies on a state level. The Massachusetts Constitution, written seven years before the federal document, is often hailed as more protective of individual rights. The state ACLU and other advocacy groups are busy preparing a “freedom agenda” of legislation to protect residents in case Trump makes good on his campaign promises, for example, to register or monitor Muslims, restrict reproductive rights, or repeal the Affordable Care Act. Criminal justice reform is another concern if Trump’s justice department brings back stop-and-frisk. Other states will have their own lists.
It’s important to remember that the 10th Amendment devolves powers to the states or to the people. The ultimate tool of Jeffersonian democracy is the protest rally or legislative petition. Citizens in every state have a voice to say which parts of Trump’s agenda they find alarming and want their elected representatives to oppose. Movements are forged from this.
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