One way to understand the work of the Republican Party and its six-member Supreme Court majority is to think about the American political system in terms of its defensive and offensive potential. A historical example is in order here.
For the political and economic elites of the Jim Crow South, state rights, federalism, and the counter-majority institutions of the American system were the shields used to defend their interests against national authority.
With a controlling interest in the political fate of the Democratic Party through the presidential nomination process, a de facto veto against legislation in Congress through the filibuster, and a favorable Supreme Court ruling in Plessy v. Ferguson, Southern elites could not control their system of racial hierarchy and keeping class domination out of the reach of the federal government. They couldn’t impose a system of national segregation, but they could – for the better part of a century – stop the federal government-imposed desegregation.
If the intellectual father of the Southern reaction was the slave owner and statesman John C. Calhoun, then this was a sort of “simultaneous majority,” an informal version of the system he envisioned at the end of his life, where “every division or any interest, through the appropriate body, either a simultaneous vote in the making and implementation of the laws or a veto over their implementation.”
However, when Calhoun developed this idea, the South was not on the defensive. Southern elites held powerful positions in every branch of government. They elected presidents, dominated the Senate, and could claim the Supreme Court as their property. And as political anti-slavery sentiment in the north took hold in the decade before the Civil War, these southern elites—operating at the height of their power—used the same tools of constitutional rights, federalism, and the counter-majoritarian institutions. of the American system to try to expand and entrench their power over the nation.
The Fugitive Slave Act of 1850 did not require the Northern states to approve slavery, but it did force them to assist in the arrest of escaped slaves. The Kansas-Nebraska Act of 1854 did not impose slavery in the territories, but it did give slave owners a chance to expand the institution through plebiscites. And in 1857, although the Supreme Court chose to enact state laws providing for slavery in Dred Scott v. Sanford, it did say that the Constitution could not and would not recognize the rights of black Americans.
Two different generations of Southern elites used many of the same tools. But where one wielded them like a sword, the other used them like a shield.
Here in the present, the conservative movement, through the intervention of the Republican Party, has also weaponized federalism, state rights, and the counter-majoritarian institutions of the American system. But they don’t use them to defend any particular, localized social order; they use them to create one and expand it beyond the borders of the so-called red states to the rest of the country.
To that end, Supreme Court conservatives have used their majority to either protect Republican-led states from federal interference — invalidating much of the 1965 Voting Rights Act and freeing lawmakers to engage in extreme partisan gerrymandering — or to Prevent Democrat-led states from encroaching on conservative priorities like gun rights or an expanded vision of religious freedom — so much so that it swallows the First Amendment settlement clause.
The court has also released Republican-led states to try to extend their authority beyond their borders. In the wake of the Supreme Court decision in Dobbs v. Jackson Women’s Health, in which Roe v. Wade, Republican lawmakers have introduced bills seeking to curb abortion with restrictions on the right to travel between states.
In its next term, the Supreme Court will adopt the “doctrine of the independent state legislature,” a theory that, if confirmed in the constitution, would give state lawmakers the power to shape federal elections, up to and including the power to evade voters. when they make a choice the legislators don’t like.
Rights of States, National Outreach.
Much of this is hypocritical and inconsistent. But by pointing out the hypocrisy and inconsistency between Republican lawmakers and Republican judges, you’re missing the bigger picture: a government of reactionaries, by reactionaries, and for reactionaries.
Or, to put it a little differently, Cups we win, coins you lose†
what I wrote
My column on Friday expanded last weekend’s newsletter to focus on those provisions of the Constitution that can be used to rein in the Supreme Court and hold insurgents and others accountable.
The Republic is not defenseless. The Constitution gives our elected officials the power to control a lawless Supreme Court, protect citizens from states’ “sinister laws,” punish those states for depriving their citizens of the right to vote, and ban insurgents from the state. to expel Congress.
And on the last episode of my podcast with John Ganz, we discussed Joel Schumacher’s 1993 photo, “Falling Down.”
Now reading
Helen White on the Independent State Legislature Doctrine, for Just Security.
Colin Gordon on segregation, for Dissent magazine.
Rebecca Traister on the language of the abortion rights movement, for New York magazine.
Joshua Zeitz on ‘originalism’ for Politico magazine.
Adam Serwer on the right-wing constitution, for The Atlantic.
Feedback If you enjoy what you read, consider recommending it to your friends. They can sign up here. If you would like to share your thoughts on an item in this week’s newsletter or on the newsletter in general, please email [email protected]. You can follow me on Twitter (@jbouie) and Instagram.
I took this on the coast of Virginia Beach a few months ago when we went to visit some friends and showed the kids my old stomping grounds.
Now eating: salmon fried rice
I just made this for lunch a few minutes before writing this newsletter, so I can say for sure it’s good! I actually used canned salmon from Wildfish Cannery, and I’m sure you can use whatever canned seafood you have on hand, from mackerel and sardines to squid and clams. Recipe comes from NYT Cooking.
ingredients
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1 (12-ounce) skinless salmon fillet
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Kosher salt and black pepper
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3 tablespoons vegetable oil
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1 tablespoon finely chopped fresh ginger
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2 cloves garlic, finely chopped
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1 bunch scallions, thinly sliced, white and green separated
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1 bunch broccolini (about 8 ounces), trimmed, cut into 1-inch pieces
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1 bunch thin asparagus (about 1 pound), trimmed, cut into 1-inch pieces
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3 cups cooked brown rice (preferably short grain)
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2 large eggs, beaten
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2 teaspoons soy sauce
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2 teaspoons dark sesame oil
Travel directions
Cut the salmon in half lengthwise into two pieces. Cut against the grain into slices about a quarter inch thick. Season with salt and pepper.
Heat a tablespoon of vegetable oil in a large non-stick frying pan over medium heat. Add the salmon in a single layer and cook until opaque, one to two minutes per side. Transfer to a plate.
Add ginger, garlic and the scallions and cook, stirring, until fragrant, about a minute. Add the broccolini, asparagus, and two tablespoons of water and cook, stirring occasionally, until crisp, three to four minutes. Transfer to another board.
Add the remaining two tablespoons of vegetable oil to the pan and heat over medium-high until shimmering. Add the rice, season with salt and cook, stirring occasionally, until the rice begins to crisp, four to five minutes. Reduce the heat to medium, push the rice to one side of the pan and add the eggs to the empty side.
Let it sit until the eggs just start to set around the edges, then stir gently until set, one to two minutes.
Return the vegetables and most of the reserved spring onions to the pan and toss until heated through. Stir in soy sauce and sesame oil. Carefully fold in the reserved salmon and serve immediately. Top with the remaining scallions and serve with hot sauce or chili-garlic sauce, if desired.