Nowadays it seems inevitable that the American political spotlight is fixed on Washington DC. The federal government has assumed a central role as the President and Congress either cooperate or do battle in their attempts to put policy into action and to frame the nation’s laws. Yet although the Constitution’s preamble opens with the famous phrase “We the people,” the contemporary reality cannot hide the historical fact that it was “we the States” which came together in 1787 to design what their representatives intended to be a federal republic. That meant there would be a division of power between the national and the state governments, the boundaries of which would be open to constant debate and redefinition. If, since the end of the Civil War, it has been the federal government whose influence has predominated in the nation’s politics, the states still have an impact on the immediate lives of their citizens. The role that federalism still plays in the politics of the United States should be neither overlooked nor underestimated.
The introduction of progressive reforms within some states has resulted in more “direct democracy,” giving their populations a say on matters of political, economic and social concern. Mapping the cultural geography of the United States suggests that regional political attitudes – in the states of the East and West coasts, the South and the Midwest – impact on contemporary issues such as gun control, crime and punishment, race, gay marriage and women’s rights. While some states are progressive, others are reactionary. Nevertheless, through preserving the idea of federalism together they continue to make a significant contribution to the vitality and variety of political life in the United States of America.
Why did the original thirteen states agree to join the Union? The answer is given in the Constitution’s opening lines. The committee that framed them, chaired by Gouverneur Morris from Pennsylvania, agreed unanimously that it was to “form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare and secure the Blessings of Liberty to ourselves and our Posterity.” Among these aims, at the time it was political stability within the United States and national security in the face of external threats that were paramount concerns. So the states were prepared to give up some political independence in the hope of securing the benefits which they were persuaded that they could gain from eventually signing up to Madison’s plan.
In the Bill of Rights, the tenth and final amendment specifies that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” From the start, however, it was evident that the federal government would test the limits of its constitutional power while the states would resist encroachments on what they saw as their legitimate spheres of authority. The first American political party system coalesced around this political division: the Federalists’ vision of a strong central government versus the Democrat-Republican ideal of the national government remaining subservient to the states.
When states objected to the federal government’s actions they discussed and sometimes tried to assert what they saw as their right to leave the Union. During the war of 1812, the British tried to isolate the New England states on the Atlantic seaboard from the rest of the United States. Connecticut, New Hampshire and Massachusetts remained on the sidelines of the conflict. In 1814 as the war impacted upon their economies, representatives from those states were joined by emissaries from Rhode Island and Vermont in Hartford, Connecticut, where the idea of secession was debated. The New England states decided to stay in the Union – and the end of the war preempted any further action. Nevertheless it was an indication that when political antagonisms flared the threat of disunion remained.
In 1828 the federal Congress agreed to impose a protective tariff designed to give northern industries an advantage against foreign competition. Its domestic impact was felt disproportionately in the South, as other nations retaliated against America’s action. The market for its primary export – cotton – was affected, particularly in Britain, as a result of what southerners came to call the “Tariff of Abominations.”
South Carolina challenged Washington over the issue in 1828 and again when another tariff measure was passed in 1832. Its legislature passed an Ordinance of Nullification which asserted that the state could ignore a federal law with which it disagreed. As President, Andrew Jackson argued that South Carolina’s defiance was a direct threat to the idea of Union itself. In his “Proclamation to the People of South Carolina,” he pointed out in no uncertain terms that:
If this doctrine had been established at an earlier day, the Union would have been dissolved in its infancy … You must perceive that the crisis your conduct presents at this day would recur whenever any law of the United States displeased any of the States, and that we should soon cease to be a nation.
Jackson threatened to hang the leaders of the nullification movement: an outcome that was avoided when Congress managed to pass a compromise tariff that defused the constitutional crisis.
Compromise was indeed the key to the federal republic’s survival in the years following its establishment. When new territories applied to join the Union, the controversy over the expansion of slavery became a political issue that was resolved by the federal government in Washington only through negotiated agreements between northern and southern states. In 1820 and 1850, settlements that satisfied both North and South were engineered by Henry Clay, the first of which proved more durable than the second. As abolitionist sentiment grew in the North, the assertion of states’ rights in defense of slavery in the South became a philosophical as well as a political imperative. From South Carolina, John C. Calhoun, who had been a leading advocate for the nullification doctrine, argued in his Discourse on the Constitution and Government of the United States, published posthumously in 1853, that:
There is indeed no such community, politically speaking, as the people of the United States, regarded in the light of, and as constituting one people or nation … The whole, taken together, form a federal community: – a community composed of States united by a political compact; and not a nation composed of individuals united by what is called a social compact.
For Calhoun, it had been a fundamental error to begin the preamble to the Constitution with its famous reference to “we the people.”
The movement to abolish slavery in the United States gained momentum in the pre-Civil War period. In 1833, William Lloyd Garrison, editor of the Liberator, the abolitionist newspaper, formed the American Anti-Slavery Society to campaign for an end to the South’s “peculiar institution.” Leading abolitionists included the freed slave Frederick Douglass and Harriet Beecher Stowe, who published the influential anti-slavery novel Uncle Tom’s Cabin (1852).
Instead, at a time when the South’s influence in the federal Legislature and its capacity to win a majority in the Electoral College had been progressively weakened by the expansion of population in non-slave states, Calhoun argued the case for an assertive form of federalism. In his opinion:
the choice lies between a national, consolidated and irresponsible government of a dominant portion or section of the country, – and a federal, constitutional and responsible government, with all the divisions of powers indispensable to form and preserve such a government in a country of vast extent, and so great a diversity of interests and institutions as ours.
Yet Calhoun was also a political realist. He saw that his advocacy of states’ rights was irrevocably linked to the preservation of slavery. In his last speech to the Senate (read for him as he was by then too ill to deliver it himself), he derided the government of the United States, now dominated by a majority in the North, as having become “as absolute as that of the Autocrat of Russia, and as despotic in its tendency as any government that ever existed.” He also predicted that in the end “the South will be forced to choose between abolition and secession.”
As the United States hesitated before plunging from the constitutional precipice into Civil War, the principle of federalism expressed in terms of states’ rights defined the schism which, as Calhoun saw, would end with those states which joined the Confederacy making their decision to leave the Union. In 1858, in his debates with Abraham Lincoln in Illinois as part of their campaigns for the federal Senate, Stephen Douglas, another notable advocate for states’ rights, argued that it should be left to the people within each state – whether already in the Union or applying for admission to it – to decide whether slavery should be allowed within its borders. In his view, those who had drawn up the Constitution had known that “in a country as wide and broad as this, with such a variety of climate, production, and interest, the people necessarily required different laws and institutions in different localities … [T]he laws and regulations which would suit the granite hills of New Hampshire would be unsuited to the rice-plantations of South Carolina.” That indeed was the essence of the federal idea, “that each State should retain its own legislature and its own sovereignty, with the full and complete power to do as it pleased within its own limits, in all that was local and not national.”The problem, however, was that the existence of slavery in the South and the prospect of its extension as more territories were organized for statehood meant that federalism as a constitutional principle could not accommodate the moral dimensions of the political debate over abolitionism. Calhoun saw that. So too did Lincoln, who with characteristic eloquence put the matter simply in his observation that “a house divided against itself cannot stand.”
Those who agreed with Calhoun and Douglas argued the constitutional case for the states to be regarded as “separate and equal” in their relationship with the federal government. Pressed to the limit, however, states’ rights led to the South’s secession from the Union. One reason the Civil War was fought was to keep the United States united. Even though slavery was abolished in the South, however, when the states of the former Confederacy were finally brought back into the union, they were allowed to construct and maintain a system of racial separatism that lasted for almost a hundred years.
As part of the campaign for the federal Senate in Illinois in 1858, Abraham Lincoln and Stephen Douglas took part in a series of seven debates throughout the state. Their subject was slavery: did states have the right to preserve and even extend it or should the federal government intervene to end it? Douglas, the incumbent Senator, advocated for states’ rights. Lincoln argued that the United States could not continue half slave and half free. Lincoln lost the election but the debates brought him to national prominence and acted as his springboard to the White House two years later.
During the twentieth century, Washington’s constitutional responsibility to promote the nation’s general welfare and common defense took on fresh relevance. The economic depression of the 1930s demanded a coordinated national response and federal government intervention in the shape of Franklin Roosevelt’s New Deal. Moreover, America’s increasingly central role on the world stage, notably after the Second World War and with the acquisition of a nuclear arsenal, meant that the states appeared progressively marginalized in the face of increasing federal power.
By the 1980s, many Americans had come to agree with Ronald Reagan, who, in his first inaugural address as President, proclaimed that “government is not the solution to our problem; government is the problem.” He was referring specifically to the government located in the city in which he had just come to live: Washington DC. Reagan’s view that the role of the federal government had ballooned out of proportion with the founder’s original intent led him to support a re-assertion of the principle of federalism, devolving more power and responsibility to the states. In his memoirs he wrote of his time as Governor of California, when he had:
experienced how the federal bureaucracy had its hand in everything … Washington would establish a new program that the states were supposed to administer, then set so many rules and regulations that the state wasn’t really administering it – you were just following orders from Washington.
In his inaugural address, therefore, he signaled his intent “to curb the size and influence of the Federal establishment and to demand recognition of the distinction between the powers granted to the federal government and those reserved to the states or to the people.” Reagan believed that the United States “had strayed a great distance from our founding fathers’ vision of America.” Aged twenty-one in 1932, his first vote had been for Franklin Roosevelt and the New Deal. But as a Republican governor in the 1960s when Lyndon Johnson was constructing his “Great Society,” his suspicion of centralized government had been confirmed. Looking back over the time between LBJ’s burst of federal government activism and his own election to the White House in 1980, Reagan concluded that the “myriad of new federal programs” had included hardly “any that did much good for the poor or the nation as a whole.” The so-called “Reagan Revolution” represented the biggest change in the public philosophy of the United States for fifty years, and at its heart was the President’s conviction that the states should be restored to their proper constitutional position in relation to the federal government.
In an Executive Order published on October 26, 1987, Reagan set out his understanding of the concept of federalism. Among several “fundamental federalism principles” he proclaimed that “the people of the States are free, subject only to restrictions in the Constitution itself or in constitutionally authorized Acts of Congress, to define the moral, political, and legal character of their lives.”That language would have met with the approval of many in the pre-Civil War South, but in an America that had finally recognized the legitimacy of the case for Civil Rights (ironically through the actions of Lyndon Johnson, with whom Reagan had violently disagreed on most other political issues), the President was not seeking to defend the morally indefensible. Rather he argued that:
policies of the national government should recognize the responsibility of – and should encourage opportunities for – individuals, families, neighborhoods, local governments, and private associations to achieve their personal, social, and economic objectives through cooperative effort.
Reagan’s “new federalism” was part of his ambition to reduce the size of the national government and its expenditure by allowing individual states to pursue their own initiatives in areas of public policy that had previously been seen as Washington’s preserve. This desire to rebalance the responsibilities of federal and state governments influenced the President’s approach to a number of issues, notably in the area of welfare provision. In his first State of the Union Address in 1982, he announced that responsibility for administering Aid to Families with Dependent Children (a program of federal assistance whose origins dated to the New Deal era) and food stamps would be transferred to the states. The President was convinced that “this will make welfare less costly and more responsive to genuine need because it will be designed and administered closer to the grass roots and the people it serves.” His plan, which was subsequently shelved as unworkable, involved a “welfare swap” by which the federal government was to take over the administration of Medicaid, a centerpiece of Lyndon Johnson’s “Great Society” reforms during the 1960s.
Despite setbacks, the Reagan administration continued to press for welfare reform and found support from both Republican and Democrat state governors. In 1988, the President spoke to a number of them who had come to Washington to lobby for the Senate to pass a welfare reform bill. He took the opportunity to remind the governors of his view that it was the states that should take the initiative in dealing with such issues. He argued that “Perhaps the greatest test of federalism is how we meet the urgent need for welfare reform, how successful we are in fashioning the local and community solutions to problems that would destroy families.” In his remarks on signing the Family Support Act of 1988 into law, Reagan pointed out that the welfare to work provisions in the measure were similar to those included in a state initiative passed while he was Governor of California. He also praised the reform efforts championed by the National Governors Association, mentioning by name the then Democrat Governor of Arkansas, Bill Clinton.
As President, in 1996, Clinton fulfilled the commitment he gave in his first State of the Union Address to “end welfare as we know it.” His approach to achieving that ambition reflected his own experience as a state governor and his cooption of elements of Reagan’s philosophy of “new federalism,” particularly after the Republicans, under the leadership of Newt Gingrich in the House of Representatives and Bob Dole in the Senate, won convincing majorities in the 1994 mid-term congressional elections. The Clinton administration granted waivers from federal rules to over forty states to allow them to pursue their own strategies to reduce welfare dependency. In states such as Wisconsin and Indiana, which were among the first to chart their own directions, the numbers on welfare were reduced dramatically. In August 1996 Clinton signed the Personal Responsibility and Work Opportunity Reconciliation Act that allowed states to shape reforms based on the needs of their own communities.
Clinton had famously proclaimed in his State of the Union Address earlier that year that “the era of big government is over … our new, smaller government must work in an oldfashioned American way, together with all of our citizens through state and local governments, in the workplace, in religious, charitable and civic associations.” If his language reflected Reagan’s re-shaping of America’s public philosophy, his approach to welfare reform similarly went a long way to meeting the former Republican President’s belief in the continuing influence of federalism as the most critical force for change in American political life. Reagan’s and Clinton’s attitudes to federalism appeared to have much in common. However, Clinton’s successor, George W. Bush, who also came to the White House after becoming a state governor, did not pursue “new federalism” with anything like the vigor of his predecessors. He appeared instead to be intent on an increase in federal authority rather than an expansion of states’ rights, not least in the aftermath of the 9/11 attacks which defined the conduct of his administration. On certain issues, this prompted individual states to act in defiance of the federal administration and adopt policies that the President opposed. In 2002, for example, California’s legislature approved a law to allow scientific research on embryonic stem cells. While Bush wanted to restrict money available for stem cell research, two years later, California’s voters approved Proposition 71 which provided $3 billion funding for research in this area during the subsequent decade. Governor Arnold Schwarzenegger was among those who supported the proposition, expressing his disagreement with his fellow Republican in the White House.
On May 20, 2009, President Barack Obama issued a ‘Memorandum for the Heads of Executive Departments and Agencies’. In it, he observed that:
the Federal Government’s role in promoting the general welfare and guarding individual liberties is critical but State law and national law often operate concurrently to provide independent safeguards for the public. Throughout our history, State and local governments have frequently protected health, safety and the environment more aggressively than has the national Government.
The new President was sympathetic to the idea of what his administration called “progressive federalism,” seeking to cooperate with like-minded governors to achieve change in areas central to his political agenda. In his memorandum, Obama also reminded the departments and agencies of the Executive branch he headed that they “should be mindful that in our Federal system, the citizens of the several States have distinctive circumstances and values, and that in many instances it is appropriate for them to apply to themselves rules and principles that reflect these circumstances and values.” A commitment to the federal ideal entails an appreciation of the diversity of the United States.
Immigration and migration, patterns of settlement, historical development, economic circumstances, industrialization, urbanization and religious sentiments are among the influences that have helped form the different characters of individual states. Even in colonial times political attitudes in the towns of Puritan New England could be contrasted with those of the slaveholding plantations in Virginia, Georgia and the Carolinas. During the early part of the nineteenth century, moreover, as immigrants came to the United States from Europe, they fanned out across the continent to the new territories acquired through the Louisiana Purchase (1803). By 1840, the original thirteen states had doubled in number. The annexation of Texas (1845) and the war with Mexico (1846–1848) brought those areas of the former Hispanic empire in the Americas into the United States, broadening the ethnic mix of its population still further.
Once territories achieved a critical threshold of population, they could apply for statehood. This afforded fresh opportunities to consider how republican governments could be organized, and the new western states took the lead in adopting more open and democratic methods of doing political business. Consider California. In his fourth annual message to Congress in December 1848, President Polk observed that “it was known that mines of the precious metals existed to a considerable extent in California at the time of its acquisition.” He went on to confirm that “The accounts of abundance of gold in that territory are of such an extraordinary character as would scarcely command belief … gold is found at various places in an extensive district of the country.” He did not need to say any more. The rush for gold triggered such a rapid increase in population that two years later, in 1850, California was admitted to the Union as the first American state with a Pacific coastline. During the first half of that decade, indeed, the West coast state was responsible for just under half of the world’s gold production, with its cities – notably San Francisco – booming as a result.
In 1849, California’s state constitution was among the first to be put to a popular vote of the people living there, before it became part of the United States. Thirty years later, however, it was subjected to a radical overhaul as a result of widespread discontent with the political corruption that was then rife, the inequitable tax system and the conduct of – in particular – the railroad corporations in the state. At that time, there was also a widespread hostility directed against the Chinese who had settled on the West coast. Article Nineteen of the state’s 1879 Constitution therefore prohibited any Californian corporation from hiring Chinese workers, barred them from any public sector employment and mandated the Legislature to “discourage their immigration by all the means within its power.” The provision remained until 1952, when a number of amendments to the state constitution were put to a popular vote. Presenting the argument in favor of the Article’s repeal, Thomas Maloney, the temporary speaker of the Assembly at the time, wrote: “To allow Article 19 to stand in the Constitution of the great state of California is to allow an antiquated and outmoded piece of legislation to adversely affect the dignity and prestige of our state.” By then it had become more a reminder of California’s past than relevant to its present.
At the time, the 1879 Constitution was seen as a populist revolt against the concentration of political and economic power in the hands of those who were unrepresentative of California’s ordinary citizens, as well as an expression of nativist sentiment against immigrants from China. Lord Bryce, the British Liberal politician who was later to become Ambassador to the United States, wrote in The American Commonwealth (1889) that it was “an attempt to remedy the evils of the times by an attack in the shape of constitutional legislation upon wealth, and the various laws and systems by which wealth is accumulated and kept together.” However, after visiting the West coast and observing the impact of the new Constitution, Bryce concluded that:
the net result … was to give the monied classes in California a fright; to win for the State a bad name throughout America, and, by checking for a time the influx of capital, to retard her growth just when prosperity was reviving over the rest of the country.
In the end the new Constitution did little to change the prevailing distribution of political and economic power in the state. Nevertheless, California’s hostility to the Chinese who had come to America was reflected at the national level when in 1882 the federal government passed the Chinese Exclusion Act. This was the first important federal law to restrict immigration to the United States.
Despite the limited success of its attempt to alter the political landscape through constitutional change, California had established a reputation as a state in which such popular insurgencies demanding reform became not only part of its heritage but also an illustration of the contemporary dynamics of its political life. Almost a century after it tore up its constitution, in 1978 a popular vote passed its famous Proposition 13, which made radical cuts (up to fifty percent) in property taxes in the state. More Californians participated in making that decision than voted in the election that renewed Jerry Brown’s term as Governor held on the same day. Proposition 13 was the product of a campaign which took its case directly to the people of California rather than seeking to pass a law in the state legislature. It would not have been possible to do this in every other state: California, however, is among those states that have adopted a number of practices aimed at balancing the principles of representative and direct democracy.
In the early twentieth century, populist movements of the kind that had led to constitutional reform in California three decades earlier influenced progressive politicians to advocate for greater democratic accountability across the United States. This resulted in the adoption at state level of several practices intended to make government more responsive to the concerns of ordinary citizens by allowing balloting to take place on matters of public concern. Chief among these was the provision to allow petitions to be raised in favor of a legislative initiative or an amendment of the state constitution. An agreed threshold of popular support is needed before such proposals can be included in a ballot of the state’s population. The referendum became a popular method of allowing a statewide vote on whether or not to repeal a specific legislative act (again a threshold of signatures needs to be reached before the referendum can be included on the ballot). Alternatively a state legislature may take the initiative in requiring a popular vote – another form of referendum – on proposed legislation.
Progressive reforms also became personal with the introduction of the provision in many states that elected officials could be removed from office through the practice of recall, whereby if a specified number of citizens demand it, a statewide vote then determines the fate of those whom they think are unfit for public office. In 1921, in North Dakota, Lynn Frazier became the first governor to be recalled: an economic depression in the state’s agricultural sector led to political discontent. Eighty-two years later, Governor Gray Davis of California was recalled and replaced by Governor Arnold Schwarzenegger. Western states led the charge in adopting all or some of such practices and similar reforms spread across the United States as well, although the East coast states (with the exception of Vermont) remained largely immune to such changes.
Nevertheless, measures that receive widespread popular support within one state can start a band-wagon effect elsewhere. California’s Proposition 13 was imitated in a number of other states and opposition to increased taxation found expression at the federal level with the election of Ronald Reagan to the White House shortly after its success in his home state. However, while involving ordinary citizens in proposing a legislative initiative, demanding a referendum or deciding whether a public official should be recalled undoubtedly increases political participation, there still remains an inherent tension between direct and representative democracy. The “taxpayers revolt” has meant that the state legislature is limited in its capacity to raise revenues and during economic recessions – such as that which impacted severely on California in 2008 – this has led to severe cuts in public sector budgets for education, welfare and the maintenance of the state’s infrastructure. In recent years there has been renewed impetus to such populist methods of achieving political change. Statewide balloting on a variety of proposals, many of them involving moral concerns, has now become a familiar tactic for those, not least on the conservative right, who use legislative initiatives and demands for a referendum to advance their political agendas in the face of state legislatures which are often reluctant and unwilling to take up such controversial issues.
States disagree. There are differences between them in the laws that govern those who live within their borders. Federal laws and state laws also coexist, sometimes in disharmony with one another. On issues such as gun control, capital punishment, as well as attitudes toward race, sexuality, women’s rights, drug use and euthanasia, states retain jealously guarded rights that enable them to frame their own laws. While there are broad similarities in the way most states approach these issues, there are also significant differences that reflect the cultural and political geography of the nation.
Only California, Iowa, Maryland, Minnesota, New Jersey and New York do not have written into their state constitutions language that mirrors the sentiments of the second amendment with respect to the right to bear arms. Indeed, as the issue of gun control became increasingly controversial, some states added such sentiments in what were in some cases historic documents. For example, in 1987, following pressure from the state sportsmen’s association, Delaware, the first state to join the Union, added a constitutional provision proclaiming that “a person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.” In some states the right to bear arms is linked specifically to the maintenance of a state militia. Hawaii, the last state to enter the union, has both an organized militia and also what its state law terms an “unorganized militia,” whose members “are not members of national guard, the naval militia, or the state defense force.” In 1978, when it amended its 1949 constitution to include the right to bear arms, it was thus able to incorporate the second amendment word for word.
State laws aimed at gun control coexist alongside federal provisions and in many cases are less restrictive locally than is the case at national level. In many states permits are not required in order to buy guns, although some states do insist on them for the purchase of machine guns or assault weapons. The powerful National Rifle Association (NRA), which is well organized as a political force at state level, has supported the “right to carry” weapons. In all but two states – Illinois and Wisconsin – laws have been passed that allow the carrying of concealed handguns. The NRA also uses its leverage, particularly in terms of its capacity to deliver electoral support for candidates who endorse its agenda, in state and federal elections. The outcome is that national gun control measures are difficult to pass and enforce in the face of opposition within the states. At the federal level, the Supreme Court has also supported a broad interpretation of the second amendment that does little to limit the ownership of guns. In the case of District of Columbia v. Heller (2008), it affirmed an individual’s right to own guns for private use in federal enclaves such as Washington DC. Two years later, in McDonald v. Chicago (2010), the Court decided that the right to bear arms should be recognized by individual states as well.
At present, capital punishment is used in thirty-five of the fifty states. Regional attitudes toward this issue are becoming markedly different. The states which no longer have the death penalty are all on the East coast or in the Midwest of the continental United States (and Alaska and Hawaii are also among those states which do not sanction capital punishment). Michigan, Rhode Island and Wisconsin abolished it in the nineteenth century and other states followed at various times throughout the twentieth century. In New York, which held the first execution by means of the electric chair in 1890, the Court of Appeal decided in 2004 that the state’s capital punishment statute was unconstitutional.
With the exception of West Virginia, southern states retain the death penalty. America’s West also favors execution for capital offenses. Only North Dakota (since 1973) and New Mexico (since 2009) no longer have the death penalty. When New Mexico repealed its law there were only two inmates remaining on the state’s “death row.” In that same year, however, there were a total of 3,729 prisoners across the United States who had been convicted of capital crimes and were awaiting execution. California with almost 700 on its death row, Florida with 403 and Texas with 342 accounted for almost half the death row total. During the year, there were twenty-four executions carried out in Texas and another twenty-eight in ten other states.
These statistics show that while some states have comparatively high numbers among those sentenced to death, the rate of actual executions – apart from in Texas – is low. In 2009 only two sentences were carried out in Florida and none in California. Those convicted of capital crimes are spending an increasing time on death row: currently the average is over twelve years. Within states, the retention or abolition of the death penalty remains a divisive political issue that is dramatized whenever legal processes are exhausted, appeals for clemency rejected and an execution takes place. The variety of methods used in different states to carry out the death penalty has given rise to claims that the Bill of Rights’ prohibition of “cruel and unusual punishments” may be infringed. Most states sanction the use of lethal injection but other methods – the electric chair, the gas chamber and hanging – still exist, as does the firing squad (which may be selected by those facing execution in Utah).
Although the death penalty also exists for certain federal crimes (the most recent execution was that of Timothy McVeigh six years after the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City), the history of capital punishment in America is thus firmly associated with the prevailing attitudes and practices adopted within individual states. Both have changed over time, but those who advocate for the abolition of capital punishment must continue to press their case on a state by state basis.
Nevertheless, the federal government has involved itself in this controversy. In 1972, the Supreme Court, ruling in Furman v. Georgia, agreed that the application of the death penalty was a “cruel and unusual punishment” that violated the eighth amendment of the Bill of Rights. The decision meant that in forty states death penalty statutes were unconstitutional. However, thirty-five states simply rewrote their laws to accommodate them to the Supreme Court’s decision. These new statutes established a legal procedure for cases that involved capital punishment. Juries are now required to come to a verdict as to whether the defendant in a case is guilty of murder. Then, fresh evidence is introduced to establish whether the death penalty is the appropriate punishment. Juries are to be given guidance to help them reach a decision. The Supreme Court revisited the issue in 1976 in the case of Gregg v. Georgia, and upheld its earlier decision requiring these new procedures. In 1977, Gary Gilmour faced a firing squad in Utah and his execution marked the resumption of capital punishment in those states across America in which it was still sanctioned.
Although a racial minority in terms of the overall population of the United States, blacks are over-represented as a proportion of inmates on death row in most states. In 2009, in seven of the eleven states that prior to 1865 belonged to the former Confederacy, the number of blacks exceeded the number of whites awaiting execution for capital crimes. Of the other four states, only in Florida was the racial profile of death row more a reflection of national demographics (142 blacks and 222 whites). In Alabama, whites outnumbered blacks by four, in Georgia by two and in Tennessee by seven. Across the United States as a whole, prison populations are disproportionately composed of members of racial minorities. The legacy of the southern racial divide lingers still in the region’s death rows.
Indeed, the issue of race has consistently permeated southern social attitudes. The so-called “Jim Crow” laws (the name itself was a racial slur directed toward African-Americans) were designed to keep the races apart in a structured system of discrimination and segregation. In 1961, when Barack Obama was born, his parent’s marriage, which took place in Hawaii, would have been illegal in seventeen southern states, which still had anti-miscegenation laws in force. It was not only in the South that mixed race marriages were against state laws. In the West, California prohibited marriages between whites and Asians until 1948, while in other states such a ban remained in force for almost two more decades.
Jim Crow was the name given to laws which enforced segregation in many American states for almost a century after the end of the Civil War. Separate hospitals, schools, restaurants and other public facilities were maintained and African-Americans experienced profound discrimination as a result. It took Supreme Court action, supported by the Civil Rights movement, to eventually dismantle these laws.
States were obliged to change their statutes preventing mixed marriages after the Supreme Court ruled, in the aptly named case of Virginia v. Loving (1967), in favor of Richard and Mildred Loving, a mixed race couple who had married in Washington DC but who were prevented from living as a married couple under the laws of their home state of Virginia. In its decision, the Court proclaimed that:
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival … To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not to marry, a person of another race resides with the individual and cannot be infringed by the State.
States gradually acceded to the Court’s ruling and the ban became legally unenforceable. Nevertheless it took time to remove language prohibiting inter-racial marriage from state constitutions. In 1998, South Carolina, the first state to secede from the Union, amended its constitution to this effect, thirty-one years after the Court’s ruling. It was not until the first year of the twenty-first century that the last state came into line when voters in an Alabama referendum approved the removal of this legacy of segregation from the state constitution.
Tolerance toward mixed race marriages across the nation has not been mirrored by widespread acceptance of same sex unions except in a handful of more liberal states. The federal government does not recognize same-sex unions – indeed, the “Defense of Marriage Act,” passed in 1996, defined marriage in relation to federal law as “only a legal union between one man and one woman as husband and wife.” In signing the measure into law, the then President, Bill Clinton, nevertheless observed that “the Act confirms the right of each state to determine its own policy with respect to same gender marriage and clarifies for purposes of federal law the operative meaning of the terms ‘marriage’ and ‘spouse’.” Some states, therefore, have taken a different view on this issue and have been in the vanguard of social change. In 2010, five states – New Hampshire, Iowa, Massachusetts, Vermont and Connecticut (and also Washington DC) permitted same sex marriages.
In California, which from the 1960s onward had been at the forefront of the movement for greater toleration in social attitudes toward homosexuality, this issue continues to generate political controversy. After the state supreme court ruled in May 2008 that California’s ban on same sex marriage was unconstitutional, “Proposition 8,” included on the ballot in the November elections of that year, re-imposed the prohibition. Despite subsequent legal challenges, California now recognizes only those marriages which took place in the six months between June 2008 (when the state supreme court’s decision went into effect) and November, when “Proposition 8” became law. The result of the ballot – fifty-two percent in favor and forty-eight percent opposed – shows that the issue remains a fault-line in contemporary Californian politics. In 2010 the ban was overturned in the courts, but the legal battles over the issue continue.
Attitudes toward abortion are even more controversial. In 1973, the Supreme Court’s decision in Roe v. Wade invalidated many state and federal restrictions on whether and when a pregnancy could be terminated. While women’s rights advocates hailed it as supporting the “right to choose,” opponents of the decision mounted a sustained and often bitter campaign in defense of the “right to life.” Their efforts at state level have resulted in a labyrinth of legislation that regulates and limits the circumstances in which terminations are legally allowed. All but twelve states insist that the procedure is carried out by a licensed physician and only allow it to take place after a defined period of time if a woman’s health or indeed life is at risk. Just under half the states require a defined time to elapse between an initial consultation and the termination taking place. In thirty-four states, if the mother is not legally adult, there are specific requirements that mean parents must be involved in the decision. Thirty years after the Supreme Court’s decision, a nationwide poll conducted by CBS news and the New York Times found some significant regional variations in social attitudes toward abortion. Whereas in the West of the country, eight-four percent of those asked thought that terminations should be permitted and in the Northeast eight-one percent agreed, in the South and Midwest only seventy-five percent thought abortion should be legal.
Despite federal prohibitions, laws relating to drug use also vary in states across the nation. In 1996, California passed “Proposition 215” which legalized the medical use of marijuana in defiance of the federal law which proscribed the drug from being used for any purpose. The federal ban was reinforced by the Supreme Court’s ruling in the case of Gonzales v.Raich (2005). Nevertheless California still operates in defiance of federal law and has been joined by twelve other states that currently permit marijuana for medical use. In March 2009, Eric Holder, President Obama’s attorney-general, announced that the federal government’s policy would now be “to go after those people who violate both federal and state law,” effectively admitting that the new administration would tolerate the fact that some states have partially decriminalized using the drug for medical purposes.
In 1994, a citizens’ initiative in Oregon proposed a “Death with Dignity” measure to allow medically assisted suicide. It was agreed by a narrow margin and was subject to legal challenge in the courts. The state legislature tried to repeal it, and in 1997 called for a second vote on the measure which this time passed with an emphatic majority (sixty percent to forty percent). Oregon’s act allows residents of the state who are terminally ill “to end their lives through the voluntary self-administration of lethal medications, expressly prescribed by a physician for that purpose.”Voters in Michigan (1998) and Maine (2000) did not support similar initiatives in their states.
It remains a controversial issue. In 2008, just over a decade after Oregon finally approved its measure, voters in neighboring Washington State supported physician assisted suicide for residents who chose to exercise that right and who had less than six months to live. While campaigning for the presidency that year, Barack Obama said that he “thought that the people of Oregon did a service for the country in recognizing that as the population gets older we’ve got to think about issues of end-of-life care,” while falling short of fully endorsing the state’s position on assisted suicide. Nor did he comment on the move to adopt a similar “Death with Dignity”Act in Washington State. In keeping with his approach toward “new federalism,” Obama was equally reticent in arguing for federal uniformity in those instances where clear majorities of a state’s population indicated they were in favor of social policies that were not accepted across the nation.
Federalism – the division of powers between the states and the national government – remains the beating heart of American constitutionalism. The balance that is struck between these two distinct and sometimes competing levels of authority is everchanging. Historically the issue of states’ rights was inextricably connected with the persistence of slavery: abolitionists channeled their efforts through the institutions of the federal government as the Southern states argued that the constitutional settlement of 1787 allowed them to preserve their “peculiar institution.” Ultimately it was the defiance of the South and its secession from the Union which provoked the Civil War. During the twentieth century,the collapse of the national economy, America’s involvement in the Second World War and its subsequent development as a “superpower” focused the political spotlight on Washington DC rather than the state capitals. But the change in public philosophy ushered in by the “Reagan Revolution” marked the contemporary beginnings of “new federalism”: a re-balancing of the relationship between the federal and the state governments.
The United States has historically been a nation on the move. During the nineteenth century in particular, immigrants who came first to the Northeastern seaboard of the country fanned out across the continent, moving to the South, the Midwest and then on to the Pacific coast. Migration across the country has been an important influence in shaping contemporary American life, drawing people to different regions where clusters of states encompass distinctive political and social attitudes. Economic booms – and busts – have been driving forces in encouraging such mobility: the gold and land rushes in California and Oklahoma, for example, acted as magnets for migrants.
Then in the 1930s the Depression and the “dust bowl,” the devastation caused by a succession of violent storms across the prairies, forced many to leave Oklahoma for California. Their journey, the inspiration for John Steinbeck’s novel, The Grapes of Wrath (1939), represented one of the largest displacements of Americans from one area of the country in the nation’s history. It took place over a shorter time span than the “Great Migration” of African-Americans away from the South that occurred throughout most of the twentieth century. Both these population shifts impacted on the politics of the states that were left behind and those where the migrants settled.
Oklahoma, for example, was one of the last states on the American continent to enter the Union, achieving statehood in 1907. William Jennings Bryan, the champion of the populist movement, told those meeting to frame its constitution that “It will be your own fault if you do not frame the best constitution ever written.” The eventual document was notable not only for its length but also for the fact that it was heavily influenced by the progressive politics of the era. It established the popular election of all officeholders and provisions for both initiatives and a referendum on issues of statewide concern. However, the state’s political allegiances have also been shaped by its proximity to its southern neighbors. Until the political re-alignment of the 1960s, following the passage of the Civil Rights Act, Oklahoma could be counted as part of the conservative Democrat “solid South” – indeed Lyndon Johnson was the last Democrat to carry the state in a presidential election.
Those who went west during the 1930s took their political attitudes with them. As they assimilated into Californian culture, they influenced the contemporary culture of the central valley region of the state where many of them settled. Patriotic and with a strong sense of individualism, their core values remained conservative, as reflected in their southern Baptist religious beliefs. This area remains as a political counter-weight to the liberalism of California’s urban communities, notably in the cities of Los Angeles and San Francisco. For example, in the 2004 presidential election, John Kerry won a clear victory in Los Angeles, but in San Joaquin County, where many “Okies” had originally settled, there were more votes for George W. Bush. In 2008, whereas Barack Obama won just over eighty-four percent of San Francisco’s vote, he had a victory margin of only ten percent over John McCain in San Joaquin County.
As African-Americans migrated from the South in the century after the end of the Civil War, black communities became established in cities in the North, Midwest and West. Between 1870 and 1890, Chicago’s population of African-Americans almost quadrupled in size. By 1910 it had more than doubled again with most of the 40,000 blacks who had now settled there living in the South Side of the city. African-Americans continued to move to Chicago: another 50,000 came in the decade between 1910 and 1920, increasing racial tensions in the city as it struggled to absorb the new migrants. Housing shortages and competition for jobs in heavily unionized industries which discriminated against the newcomers helped provoke a race riot in 1919 in which twenty-three blacks died. After the Second World War a fresh wave of migration from the South meant that by the 1960s over three-quarters of a million African-Americans lived in Chicago and the city’s South Side was widely regarded as the “black capital of America.”
The impact on city – and state – politics was profound. Mayor Richard Daley, whose personal and political roots lay in the South Side Irish-American community, took office in 1955 and built Chicago’s Democrat party machine into one of the most formidable forces in American urban politics. Following his death in office in 1976, his successors struggled to keep the Democrat machine intact and in 1983, supported by the votes of the South Side’s black community, Harold Washington captured the party nomination and won election as Chicago’s first African-American mayor.
Oscar Stanton De Priest, the son of former slaves and originally from Alabama, moved to Chicago in 1889 at the age of eighteen, and thirty years later became the first African-American to be elected to Congress in the twentieth century as a member of the federal House of Representatives. Blacks became active in city, state and federal politics. It is unsurprising, therefore, that in the 1990s a former community organizer on Chicago’s South Side, who later married into a family originally from the slave state of South Carolina, should return from Harvard Law School to embark upon a political career that would lead him in twelve years from the Illinois State Senate to the White House. The personal stories of both Barack and Michelle Obama encapsulate the larger narrative of the “Great Migration” and its impact on American political culture.
President Obama’s May 2009 memorandum to the Executive branch quoted an observation made by Louis Brandeis during the 1930s that “it is one of the happy accidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Historically, the argument of the South, that the principle of states’ rights justified the social and economic arrangements of slavery, helped to provoke the Civil War. Yet the contemporary diversity of America’s fifty states remains a confirmation of the significant role that the federal ideal continues to play in the nation’s political life.