The Return of States’ Rights
Rick Perry and the Right's Counterrevolutionary Revolution
November 1, 2011
Nov 1, 2011
18 Min read time
Rick Perry does not simply keep his ear to the ground. He claims he is “conservative to the core,” and we can readily believe him.
Rick Perry rose from dirt-poor origins on the desolate plains of northern West Texas to become the state’s longest-serving governor. Now the guy from tiny Paint Creek who won’t take it any more—an angry man tired of seeing America run down and ordinary Americans demoralized by big government—wants to be president.
Perry has a well-deserved reputation for keen political instincts. Having entered politics as a Democrat, he followed former Governor John Connally and other conservative Texas Democrats into the Republican Party in 1989. He debuted as a border security hawk during his 2006 reelection bid and broadcast his libertarian and states’ rights ideology in March 2009, just as the Tea Party backlash was showing its first signs of life. And he brandished his evangelical Christian faith at a conference of the like-minded only weeks before announcing his presidential candidacy. These well-timed shifts of focus have served Perry well: he has never lost an election.
But Perry does not simply keep his ear to the ground. He claims he is “conservative to the core,” and we can readily believe him.
He is socially conservative, committed to Christian moral precepts he says animated the nation’s founders. A proud Eagle Scout, Perry also defends the Boy Scouts of America for their policy of prohibiting atheists and gays, and he believes in intelligent design, not evolution.
Perry is also a conservative on border and national security issues. As governor, he has brought together border sheriffs, state police, and the Texas Rangers in a campaign to “protect Texans” from the Mexican drug gangs allegedly crossing into Texas and bringing drug war–related violence with them. He has invested several hundred million dollars along the Rio Grande through initiatives such as Operation Border Star, which, according to Perry’s Homeland Security Director Steve McCraw, aims to “leave no exploitable seam” in the border.
Perry’s militaristic approach to security extends well beyond national boundaries. U.S. global leadership requires a strategy of “peace through strength,” he says. To preserve our God-given “American exceptionalism,” he envisions an “America that has the strongest national defense in the world, by an insurmountable order of magnitude.”
Finally, Perry is fiscally conservative. His outlook is founded on confidence that free markets, personal responsibility, charity, and civic virtue will resolve most economic and social problems. He has pushed a “Texas model” with no state taxes on income, capital gains, or corporate dividends. The Texas model stands in sharp contrast to the “job-killing” policies of Washington and higher-tax states, such as Massachusetts and California, that provide more social services. It is a real alternative to what Perry believes the Democratic Party and big-government Republicans offer: a “road to serfdom” and a “slow march to socialize” government.
What is most distinctive about Perry’s small-government conservatism, however, is a new federalist platform that aims to elevate anti-government, anti-elite sentiments into a coherent philosophy of states’ rights. The idea is to give social conservatives, fiscal conservatives, and security hawks a unifying framework in their fight against the Washington “establishment.”
At the same time, Perry’s states’ rights framework helps make sense of some of his own big-government policies, such as accepting $38 billion in federal stimulus dollars and relying on $72.5 billion in federal funds to shore up Texas’s $187.5 billion budget for 2010–11. Perry sees no problem with depending on the government that he condemns, arguing, “Politically, it is hard for politicians to refuse such funds—particularly when it comes right out of the pockets of their constituents.” That, Perry says, is the “box Washington puts us in.”
If victorious, Perry would undertake the next phase in the right’s counterrevolutionary revolution: a wholesale downsizing of national government that, by unleashing private enterprise and free markets, would “save America”—and in the process, if the similar although less radical reforms of the Reagan Revolution are a guide, broaden the gap between the rich and the rest of us.
• • •
An oft-repeated myth holds that when the United States annexed the Republic of Texas, the new state was given the right to secede. Speaking to a group of tech bloggers in his office in March 2009, Perry echoed this state legend: “When we came into the nation in 1845, we were a republic, we were a stand-alone nation. And one of the deals was, we can leave anytime we want. So we’re kind of thinking about that again.”
Perry is not serious about secession, but since President Obama took office, Perry has fashioned a new political identity as a proponent of states’ rights. He has shored up his credentials in high-profile lawsuits challenging the Obama administration’s health care and environmental programs.
His new espousal of states’ rights adroitly taps the populist currents of the Tea Party, in part because right-wing populism has always involved animosity toward the distant federal government. Since the birth of the People’s Party (known as the Populists) in the 1890s, anti-elitism has defined American populism. Over the past several decades, the right has directed that animus toward Washington, periodically giving rise to right-wing militias and separatist groups. Perry turns this hostility to federal power into a positive platform of states’ rights, while, for the most part, avoiding the conspiracy theories and militancy that have kept right-wing populists from entering mainstream politics.
What is most distinctive about Perry is his effort to elevate anti-government, anti-elite sentiments into a coherent philosophy of states’ rights.
Where others articulate a litany of grievances against big government, Perry argues that the rights of the states have been systematically violated. In his 2010 book Fed Up! he offers a kind of constitutional fundamentalism that might be an alternative to the tyranny of big government. While taking aim at the Obama administration and the Democrats, Perry is carefully nonpartisan, recognizing that the new right-wing populist rage is directed against both parties. He dismisses big-government Republicans as “Democrat-lite.”
Perry believes that the founders intended a federal system that allows “people of like mind” in the states to make their own decisions about how to live, while the national government’s role is properly focused on national security. “From marriage to prayer, from zoning laws to tax policy, from our school systems to health care, and everything in between,” he writes, “it is essential to our liberty that we be allowed to live as we see fit through the democratic process at the local and state level.”
Perry associates this claim with the Tenth Amendment, which stipulates, “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.” Perry believes that, with the authority of the Tenth Amendment on their side, Americans will readily “take on the federal government.” In a less combative mode, he explains that he wants to “jump-start a conversation about the importance of federalism in our system of government, and the need to restore the balance of power between the central and state governments.”
Of course, it is not only Tea Party activists and their antecedents in right-wing populist movements who believe that the federal government is too often unduly intrusive, wasteful, and unaccountable. The left, too, propagates an anti–big government message opposing federal funding of mass imprisonment, the war on drugs, and the apparently permanent war state. But in the face of the populist-right critique, the left-center community is mostly defensive and supportive of the federal government, pointing to its fundamental role in advancing social justice (for instance the Civil Rights Act) and in helping to rein in what early progressive populists called “money power.”
Here is where Perry’s states’ rights position diverges from the anti–big government views of some on the left, and might exonerate him from the charge of biting the hand of big government while it feeds him. As he sees it, big government’s failure is in imposing solutions on the states, as liberals might prefer, not in enabling them to carry out their own agendas backed by federal money. As if taking a line from the “small is beautiful” convictions popular on the left in the 1970s, Perry celebrates the state as the right’s main “laboratory” for properly balanced government. It is “through the states that the American people get the job done every day often in spite of a deeply flawed bureaucratic federal government,” Perry argues.
The increasingly distressing story of violent crime just south of the border provides a fine example of these priorities at work. To obtain more federal support for Texas-style border control, Perry and his aides have raised fears about the drug war–related killings in Mexico. McCraw claims, “The most significant threat Texas faces is spillover violence from Mexico’s drug cartels.” Yet Perry objects to the federal government’s attempts to clamp down on the flow of guns from Texas to Mexico. Texas is the source of most weapons smuggled into Mexico, and a Washington Post investigation discovered that eight of the top twelve U.S. dealers of guns traced to Mexico were Texas gun shops. But last July, in response to a new Justice Department policy requiring increased reporting of multiple sales of automatic weapons in U.S.-Mexico border states, Perry demanded that the federal government desist from “implementing this misguided and constitutionally questionable policy.”
• • •
Given the complaints on all sides about government’s effectiveness, the conversation that Perry wants to start on government’s proper role is overdue. And some constitutional and legal experts hold, like Perry, that the federal government has systematically overstepped its constitutional limitations. But the historical tide of court rulings overwhelmingly supports a concept of federalism in which the federal government’s powers are not limited to those explicitly stipulated by the Constitution.
The Constitution’s first article states that Congress has the power to “make all Laws which shall be necessary and proper for carrying into Execution [its enumerated powers] and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” One of the most disputed of the enumerated powers is contained in the commerce clause, which authorizes the federal government to regulate commerce with foreign nations and among the states. In Fed Up!, Perry echoes the long-held conviction of right-wing populists and strict constructionists that the courts have recklessly backed an overly expansive interpretation of the clause, justifying “federal laws regulating the environment, regulating guns, protecting civil rights, establishing the massive programs of Medicare and Medicaid, creating national minimum-wage laws, [and] establishing national labor laws.”
But whittling down the federal commerce power might mean eliminating any number of federal laws, such as drug prohibition laws, that Perry supports. Furthermore, the supremacy clause of Article VI—which was cited in striking down provisions of Arizona’s notorious immigration law, SB 1070—specifies that the Constitution and the laws of the United States “shall be the supreme law of the land,” suggesting that a strident states’ rights supporter faces an uphill battle. In fact, the Constitution was designed to vest greater power in the federal government than had its predecessor, the Articles of Confederation, which it replaced precisely because the Articles left Congress with what the authors of the Constitution felt was too little authority.
Perry sees no problem with depending on the government that he condemns, arguing, that’s ‘the box Washington puts us in.’
Aside from the dubious constitutional grounds for the states’ rights argument, the position is weighted down by some ugly historical baggage.
The most infamous expression of states’ rights is found in the Confederate States Constitution (1861), which begins: “We, the people of the Confederate States, each State acting in its sovereign and independent character . . .” In the twentieth century, states’ rights routinely served as a code word for the right to discriminate against African Americans, segregate them from the white population, and deny them and other nonwhites voting rights, in violation of the Fourteenth Amendment, the Civil Rights Act, and the Voting Rights Act. Two of the most influential right-wing populist leaders and civil rights opponents of the 1960s—Senator Strom Thurmond of South Carolina and Governor George Wallace of Alabama—were avid proponents of states’ rights.
Unlike his predecessors in the states’ rights camp, Perry believes that the Declaration of Independence and the Fourteenth Amendment enable the federal government to protect Americans from racial discrimination. At the same time, he advocates passing a “clarifying amendment” to the Constitution that would prevent “judicial activism” based on broad interpretations of the Fourteenth and other amendments—interpretations that lead to “race-based” policies such as affirmative action and expansive federal enforcement of the Voting Rights Act.
Unfazed by constitutional questions and the burden of history, Perry has aligned himself with Texas lawmakers on issues of state sovereignty. The state sovereignty resolution introduced in the Texas legislature in 2009 and again this year would designate that “all compulsory federal legislation that requires states to comply under threat of civil or criminal penalties, or that requires states to pass legislation, or lose federal funding, be prohibited or repealed.”
Lest we believe the resolution a hypertrophied form of the “Don’t Mess with Texas” mentality, and therefore a nonstarter on the national stage, consider that this streak of pride and independence runs through all red states and is not difficult to detect in most blue ones. Some 40 state legislatures have introduced state sovereignty or “Tenth Amendment” resolutions, and fourteen of the legislatures in these states have approved these measures. U.S. Representative Rob Bishop of Utah has also formed the 10th Amendment Task Force, which, with Perry’s endorsement, aims for a “decentralization of power through the restoration of American federalism.”
• • •
The immigration issue doesn’t neatly conform to traditional conservative pro-church, pro-market, and pro-defense values. Nor has it historically been a concern of states’ rights advocates. But anti-immigrant sentiments and nativism have long energized right-wing populism.
In Texas Perry has masterfully transformed border security into both a populist and states’ rights issue. Across the country—especially in Arizona and Texas—the right-wing resurgence has fostered an array of state and local initiatives to fortify the border and intensify the crackdown on illegal immigration. These initiatives set the states against the Obama administration, play well to the right-wing base, appeal to those concerned about the “rule of law” and possible spillover violence, and have proved key to the electoral victories of Perry and Arizona Governor Jan Brewer.
Being hawkish on border security has proved smart politically for both Democrats and Republicans, allowing them to avoid the shoals of the immigration reform debate and the appearance of being anti-immigrant or anti-Latino. Whenever the topic of immigration reform is raised, Perry insists that border security must first be addressed. As he told President Obama, we “can’t have a rational discussion about immigration reform without real, effective border security.” Perry’s support of a guest worker program and of in-state tuition for children of illegal immigrants ignited a storm of criticism from restrictionist institutes and anti-immigrant hardliners, but these positions will serve him well in a general election as the Republicans attempt to recoup some of the Latino vote they lost in 2008 thanks to the party’s perceived racism and nativism.
Although Perry says an Arizona-type anti-immigrant bill wouldn’t work for Texas, he joined a handful of other states in publicly supporting Arizona’s constitutional right to implement its controversial immigration enforcement bill, furthering his states’ rights agenda. The state and local models of immigration and border control reinforce the populist thrust of today’s right. Here, after all, are people taking care of problems in the face of the federal government’s unwillingness or incapacity.
In Perry’s view, we can demand limited government with respect to social services and big government with respect to security.
Perry is right in blaming big government for its lack of resolve in tackling the long-lived border control crisis. But the Texas model exhibits the same failings as Obama’s border security policies: no serious immigration reform, unprecedented resources committed to border and immigration enforcement, and the drug-war status quo. Perry isn’t fed up with drug-prohibition and immigration-crackdown policies that make marijuana users and immigrant workers criminals and in the process breed violent criminal networks that profit from the illegal drug and immigrant trades. Instead, he does the usual things big government politicians do when confronted with complex social challenges such as drugs, immigration, and crime: call out the troops and appeal for more resources.
If this seems contradictory, perhaps it is because there is a consistency and logic to the right’s political agenda that centrist and left-of-center critics consistently miss.
Perry, like most conservatives, sees no discrepancy in demanding limited government with respect to social services, education, and market regulation while at the same time supporting big government with respect to security. No problem with a big-government, interventionist military while sniping about wasteful and interventionist government in the market and the public square.
Citing Article I, Section 8 of the Constitution, which empowers the federal government to provide for the “common Defence,” to “declare War, and to “raise and support Armies,” Perry argues for a strong security commitment by the federal government internationally and along the border. With respect to border security, then, Perry says he is fed up with the Department of Homeland Security for not committing more resources, for not taking its constitutionally mandated big-government responsibilities more seriously.
• • •
Despite the intensity of presidential election campaigns, which pit two bitterly opposed candidates and parties against one another, the changes from one administration to the next are generally not substantial in the long view.
Sometimes, though, an election cycle marks more than another political transition. In rare cases, the general election also marks a national transformation.
The surge of right-wing populism portends just such a transformative election—at least, that’s what the Tea Party Republicans and Rick Perry hope. But backlash and nostalgia alone are not transformative. A leader must rise above normal political discourse by pinpointing fundamental problems, interpreting the anxieties of the times, setting forth a new political vision, and communicating in language whose clarity and truth resonate across ideological lines.
The founders set a standard of clarity in the Declaration of Independence, which incited a revolutionary war by insisting that “Life, Liberty, and the pursuit of Happiness” are “inalienable rights.” Few subsequent American leaders have even tried to measure up. Abraham Lincoln, Franklin D. Roosevelt, John F, Kennedy, and Ronald Reagan might have come closest in capturing the essential challenges of their time.
The founders had a definite advantage. In creating something entirely new, they weren’t beholden to the past. The circumstances compelled them to seek an as-yet-unwritten language of individual liberty and to debate their way to a unifying vision of democratic governance.
Since then American politicians have had it relatively easy. For most of the country’s history, there has been confidence that the republic would keep marching forward, based on its sound foundations, dynamic society (infused periodically by immigrant flows), and expansive industrial economy. Whenever times got tough, comfort and succor could always be had in the legends of the founders, the nostalgic recall of Americana, and the national ideology of liberty. Writing in 1948, Richard Hofstadter observed, “The ideology of self-help, free enterprise, competition, and beneficent cupidity [has nourished America] since the foundation of the Republic.” This willfully forgetful interpretation of the past—ignoring the women, African Americans, and unpropertied freemen omitted from the founders’ vision of liberty—is what right-wing populists now offer.
Obama enters the electoral campaign as the perfect foil of the right-wing populists, the defender of an indefensible status quo. Obama’s problem is also liberalism’s crisis. There is no defined path forward, no revolution to complete, no easily articulated vision of a relationship between people and their government. What many Americans hear from liberals are more Democratic Party promises of government solutions, but what they certainly know is that the federal government has fallen far short of delivering social justice and general welfare, that it coddles Wall Street, and that it keeps revving up the war-fighting machine.
In these circumstances, the Democrats will depend on the loyalty of the party faithful and left-leaning independents—Americans who understand that the federal government plays a necessary role in protecting people from the ravages of an unfettered market, providing an essential social safety net, and upholding civil as well as property rights. This time around the Democrats will count more on reason than on hope, more on fear of the alternative than on a belief that progressive change is finally coming.
Meanwhile, echoing the new populist cant of the right, Perry hits where it hurts most: “[The Democrats] believe less in the people themselves than they believe in the government.” Faux populist or not, Perry deserves our attention when he points out that there is “a lumbering mass of old-guard politicians who do not understand that there is a quiet revolution taking place.”
The right has proved more adept in identifying and tapping popular indignation. Perry and other Republican leaders appear more confident when they assure us that there is a clear path out of the morass via free enterprise and personal responsibility. In part, that’s because the Republican Party is the current opposition party, and in part because their arguments are cast in those easy nostalgic terms.
Obama has vainly attempted to keep American politics civil and policy reforms bipartisan despite the right’s intransigence. Meanwhile, Perry was apparently listening more intently to the grievances of at least some Americans.
But what Perry may not have learned in Paint Creek or in his red state is that the right doesn’t have a monopoly on disgust with old-guard politicians. If he or any of the Republican contenders succeed in riding right-wing backlash to Washington, they may find that, once unleashed, the fed-up populism of the American people won’t be easily contained.
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November 01, 2011
18 Min read time