Opinion | States Pose the True Threat to Our Freedom

A few decades ago, it would have been difficult to imagine that the states could infringe upon the political and civil rights of citizens without facing opposition from the national government.

After the Civil War and the abolition of slavery, the architects of the American political system aimed to break down the barrier between the Bill of Rights and the states. They were concerned that the ex-Confederates would seek to restore slavery in the former rebel states. Therefore, they created the 14th Amendment, which contains the following sentence:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The purpose of this language, according to John Bingham of Ohio, a Radical Republican member of the House and the principal author of the 14th Amendment, was to “arm the Congress of the United States […] with the power to enforce the bill of rights as it stands in the Constitution today.” In other words, the adoption of the 14th Amendment would ensure that the national government had the power to hold states accountable for infringing upon the rights of their citizens.

Unfortunately, the Supreme Court narrowed the scope of the 14th Amendment in a series of rulings culminating with Plessy v. Ferguson in 1896. As a result, the Constitution’s limits on the actions of states were little different from what they had been before the Civil War. Nonetheless, the 14th Amendment set in motion a process whereby rights became attributes of a national citizenship that extended to every member of the political community, and that bound states as much as the federal government.

Conservatives and reactionaries are working to reverse this triumph. They aim to unspool and untether these rights from the Constitution, to shrink and degrade the very notion of national citizenship, and to leave us, once again, at the mercy of the states. The plan is to place fundamental questions of political freedom and bodily autonomy into the hands of our local leaders and petty tyrants.

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