On Friday night, the Supreme Court swatted aside a lawsuit spearheaded by Texas Attorney General Ken Paxton, seeking to invalidate electoral returns in Pennsylvania, Wisconsin, Michigan and Georgia. The attorneys general of 17 other states had backed Paxton’s suit. The majority of the court found Texas lacked standing to file such a complaint because it had not “demonstrated a judicially cognizable interest” in how other states conducted their elections.
The last-ditch attempt by Republican-dominated states to steal the 2020 election for Donald Trump infuriated many across the political spectrum. In its official response, Pennsylvania characterized the suit as “an affront to the principles of constitutional democracy” and a “seditious abuse of the judicial process.” Conservative Rep. Chip Roy (R-Tex.) tweeted, “The case itself represents a dangerous violation of federalism,” and Sen. Ben Sasse (R-Neb.) mused that Paxton was looking for a pardon for potential criminal conduct being investigated by the FBI.
The lawsuit highlights the continuing importance of state governments as preservers — or destabilizes — of the American union. Despite two centuries of fears from conservatives that “states’ rights” are being usurped or denied by an increasing large federal leviathan, state governments always have had many legitimate ways of making their voices heard on the national stage. But here’s the thing. Historically, when one group of states has attempted to force another to do its bidding through an unfair process, resentment and interstate tensions have followed — with devastating consequences.
States have long had a number of routes through which to influence national affairs. Until 1913, U.S. senators were chosen by state legislatures, which gave state governments themselves a form of representation in Congress. State governments relied upon their congressional delegations as a whole — including popularly elected representatives in the House — to press their general and specific interests in the national legislature. But senators especially had to be cognizant of the wishes of the state government or risk losing their seats come the next election. In the 1790s, Sen. Benjamin Hawkins and Samuel Johnston (North Carolina) refused to take “instructions” from the legislature as to how to vote in the Senate. The legislature responded by replacing Johnston with a more amenable character after four years, and Hawkins after six.
States could also push their respective agendas through other means. Legislatures could originate and build support for constitutional amendments. The same could be done with ordinary resolutions professing support for, or opposition to, the actions of the federal government.
These resolutions could sometimes be very influential, as in the case of the Virginia and Kentucky Resolutions of 1798 and 1799 when these two state legislatures expressed their strong opposition to the Alien & Sedition Acts passed by Congress in 1798. The laws made it more difficult for immigrants to be naturalized, allowed the president to personally order the deportation of individual foreigners and made it possible for the government to prosecute its critics for seditious libel — a serious threat to free speech. Kentucky’s resolution even suggested the state might refuse to enforce the legislation. The resolutions, drafted by James Madison and Thomas Jefferson, respectively, became foundational to the ideology of “states’ rights” in the antebellum period.
One of the most effective ways for states to make their voices heard was by corresponding directly with the president and his cabinet. In the 1790s, Virginia Gov. Henry Lee maintained a close relationship with Treasury Secretary Alexander Hamilton, despite their political differences, while George Washington carried on a friendly correspondence with New York Gov. George Clinton, again despite significant political differences.
State legislatures also corresponded with the president directly, congratulating newly elected commanders in chief and expressing their political desires for the coming presidential term. For example, the Georgia assembly marked Washington’s election to the presidency in 1789 with a letter of congratulations that begged for federal intervention in Indian affairs.
Georgia wasn’t alone in seeking out presidential help in this realm. In the late 1790s, Tennessee campaigned relentlessly through letters and remonstrances to Congress and the Adams administration for the renegotiation of a federal treaty with the Cherokee Nation. It worked. In 1798, President John Adams negotiated the First Treaty of Tellico, forcing the Cherokee to cede more of their ancestral territory to the United States. Tennessee was successful in using its influence to guide the federal government’s actions.
Outside of these regular negotiations between the union’s governments, however, states have sometimes engaged in strikingly unfair tactics to boost their own interests at the expense of other states. The first and most notorious such example was the inclusion of the three-fifths clause in the Constitution. This clause overrepresented states with large enslaved populations in Congress and the electoral college between the First Federal Congress in 1789 and the abolition of slavery in 1865. This gave Whites who owned enslaved people more political influence per capita than Whites who did not.
Although many Northern Whites opposed abolishing slavery, and certainly giving Black men the vote, they still resented the excessive influence of Southern states in the federal government, which ultimately allowed Southerners to push for a proslavery foreign policy, the extension of slavery into new states like Missouri and — perhaps most divisively of all — federal laws protecting the recapture of fugitive enslaved people in the North.
During and immediately after the American Revolution, many (though not all) Northern states either banned slavery or provided for its gradual abolition. Because White enslavers feared the enslaved would escape to freedom in the North, they pushed for national laws guaranteeing people fleeing slavery would not be freed simply by entering a free state, and they could legally be recaptured anywhere in the union. The 1793 Fugitive Slave Act co-opted state and local officials in the North, like judges and magistrates, into enforcing the law of slavery. It forced Northern states where slavery was illegal to accept and enforce the laws of Southern states where it was not.
The Fugitive Slave Act of 1850 went even further in compelling Northern officials and citizens to participate in the arrest of enslaved people attempting to flee. Rather than making slavery more secure, however, this measure inflamed White Northerners, who felt the freedom and sovereignty of their states were being sacrificed to the ‘“slave power” (White Southerners).
Even so, believing they were entitled to overrepresentation in government, the unreserved aid of the federal government in enacting their proslavery vision and the unlimited support of Northern states in perpetuating slavery, Southern states joined in open rebellion after the election of Abraham Lincoln to the presidency. They saw Lincoln as a threat to their ability to force their agenda on the rest of the country.
Some observers have pointed out the close, if not exact, resemblance between the geography of the Confederate States and the map of states expressing support for the Texas lawsuit. It is with a sense of deja vu that many Americans are watching this group of governments once again looking to achieve their own self-interested goals at the expense of Democratic ideals.
But these states should be wary. The lesson of history is that, when one set of states tries to elevate its laws, election returns or policy preferences over those of the rest of the states, the American union is unavoidably and intrinsically weakened. This practice — historically employed by the very states which complain of violations of states’ rights — does far more damage to the American union than federal edicts or attempts to insist that states abide by the federal Constitution and laws. The United States only works when governments at every level work to preserve, in President Obama’s words, “liberty, and justice, and a union that could and should be perfected over time.”