Donald Trump and the states’ rights pendulum

Demonstrators against North Carolina's new voter identification law marching in 2015

By Michael Wongsam

The election of Donald Trump as America’s 45th president has provoked many responses, from outright rage and protest in many urban centres through to resignation, acceptance and accommodation to the result on the part of the DNC establishment. Opponents have correctly characterised his campaign as a right wing populist call to arms aimed at mobilising rural and sub urban white communities against immigrants, Muslims, black and other minority groups around a reactionary conservative agenda. However, in order to understand this vote in its full significance it is necessary to take a longer, historic view of its place in the unfolding of US politics.

The states’ rights issue

There is a tension inherent in the American constitution deriving from the federal system of government, and consisting of the political powers reserved for the state governments rather than the federal government under the ‘Supremacy Clause’ of the US constitution. In the prelude to the civil war the fact that the free states and slave states effectively had different modes of production, and hence social structures, customs, and political values, provided a material basis for the exacerbation of this tension. For instance international trade was viewed differently in the north and the south and the imposition of tariffs provoked a ‘nullification crisis’ when South Carolina nullified the federal tariffs leading to the dispatch of a naval flotilla to enforce them. The civil war, fought explicitly over the question of slavery resolved the issue of states’ rights in favour of the federal government and resulted in the reconstruction amendments to the constitution, abolishing slavery; guaranteeing birthright citizenship and equal protections before the law; and guaranteeing the right to vote for all citizens. Furthermore, reconstruction was enforced through the permanent station of federal troops in the former confederate states.

Reconstruction was brought to a close following a fractious and intensely disputed presidential election in 1877 which resulted in a compromise consisting of Republican Rutherford B Hayes being awarded the presidency in return for federal troops being withdrawn from the former confederate states. Eventually, Democrats took control of every southern state legislature, blacks were prevented from voting by violent paramilitary organisations including the Ku Klux Klan, and the Jim Crow system of segregation and separate development was imposed. A Supreme Court decision of 1883 ruled that the Civil Rights Act of 1875, which guaranteed blacks equal treatment in such things as public accommodations, public transport, etc., was unconstituional. In this way, the states’ rights pendulum had swung back against the federal government.

The next swing of the pendulum occurred after WWII with the civil rights struggle producing landmark Supreme Court rulings, including Brown vs. The Board of Education of Topeka, asserting the supremacy of the federal government over the individual states. This struggle produced the Civil Rights Act of 1964 and the Voting Rights Act of 1965 which effectively ended the Jim Crow system.

The prelude to Trump

The Voting Rights Act aimed to overcome legal barriers at the state and local levels that denied African Americans their right to vote under the 15th Amendment and imposed tests which had to passed by various named state governments in order to satisfy the Act’s provisions. The act banned the use of literacy tests, provided for federal oversight of voter registration in areas where less than 50 percent of the nonwhite population had not registered to vote, and authorized the U.S. attorney general to investigate the use of poll taxes in state and local elections.

After the passage of the Voting Rights Act, state and local enforcement of the law was weak and often was ignored outright, mainly in the South and in areas where the proportion of blacks in the population was high and their vote threatened the political status quo. Still, the Voting Rights Act gave African-American voters the legal means to challenge voting restrictions and vastly improved voter turnout.

The problem that has confronted the Republicans is that i) all minorities vote in their overwhelming majority for the Democrats; ii) minorities comprise an ever increasing proportion of the population. Some right wing Republicans have sought to address this problem by resorting to voter suppression.

Shelby County, Alabama, filed suit in district court and sought both a declaratory judgment that Sections 5 and 4(b) of the Voting Rights Act are unconstitutional and a permanent injunction against their enforcement. This was upheld by the Supreme Court in a ruling of 2013, which had a slim conservative majority of 5-4, stating that ‘the Voting Rights Act imposes current burdens that are no longer responsive to the current conditions in the voting districts in question. Although the constraints this section places on specific states made sense in the 1960s and 1970s, they do not any longer and now represent an unconstitutional violation of the power to regulate elections that the Constitution reserves for the states.’ This ruling, which effectively puts into motion another swing of the states’ rights pendulum is an effective nullification of the 1965 Voting Rights Act.

As soon as the Supreme Court made their ruling, voter ID requirements became law in many states and massive voter purges such as Interstate Crosscheck 1,2 started wiping out minorities from the voter rolls purging hundreds of thousands every year since 2013. Like all weapons of vote suppression, Crosscheck is a response to the imaginary menace of mass voter fraud. When Donald Trump during the presidential campaign claimed, ‘the election’s going to be rigged,’ and that some Americans were committing the crime of ‘voting many, many times’ he was actually giving endorsement to a decade-long Republican effort to disenfranchise voters under the guise of battling voter fraud. The latest development is that election officials in more than two dozen states have compiled lists of citizens whom they allege could be registered in more than one state – thus potentially able to cast multiple ballots – and therefore are eligible to be purged from the voter rolls.

But voter suppression was one of the primary methods of undermining and dismantling the post civil war reconstruction, and continued throughout the Jim Crow era. To confirm that we are indeed entering a period of revanchist reassertion of the states’ rights doctrine and the suppression of the rights of minorities, it is becoming clear that Donald Trump is filling his transition team with white nationalists including Steve Bannon (Head of Strategy), Sen Jeff Sessions (Attorney General), and Michael Flynn (National Security Advisor). Far from the widely reported Trump backtracking on campaign promises, three of the top five positions have gone to white nationalists, and were thus greeted by KKK leader David Dukes; ‘President-elect Donald Trump’s appointment of Bannon, Flynn and Sessions are the first steps in the long and arduous project of taking America back’ 3.


While it remains true that it is exceedingly difficult to know exactly what a Trump presidency’s administrative program will consist of in detail, it is possible given the appointments to his transition team, and the fact that his campaign was based on an explicitly racist, anti-immigrant, anti-Muslim, homophobic, and anti-woman agenda, and taking into account the historical dynamics as outlined here, to anticipate some of the themes. Several constitutional amendments were already previously targeted by leading members of the Tea Party movement such as full or partial repeal of the 14th, 16th and 17th amendments to the constitution, which address their agenda on the birthright citizenship of immigrants (14th amendment), their pursuit of ‘small federal government’ (16th amendment), and to increase the control of state legislatures in the election of senators to Congress (17th amendment).

With hindsight, it is clear that the Obama presidency, notwithstanding the symbolic importance of the election of the first black president, was not so much the dawn of a new era, but the close of the old era.




(2) Al Jazeera has published a three part series on voter suppression by the Republican Party;

a. Republicans champion voter ID laws absent credible evidence of fraud;

b. The partisan strategy of voter suppression;

c. Who’s funding voter suppression?;

(3) Trump appoints men who will take America back!; David Duke;