Ellena Szentirmay
This paper engages with the essence of the United States federal and state systems in order to establish whether the unification of the constitutional republic is under threat at the hands of state individualism. This requires consideration of historical examples of republic division, namely those of the Confederate States and the US civil war (1861-1865). The possibility of something similar occurring in the future is considered by analyzing the current judicial, executive and legislative systems enabling the individual states to claim further autonomy in contrast to other nations who maintain democratic persuasions. Current political issues dividing states are explored, such as reproductive rights, and the absence of a relevant federal consensus will be compared with the sovereign state of Australia to offer further analysis. I will consider current political discussions on this issue, and compare peer-reviewed articles for and against the dissolution of the union to assess the probability of this eventuating. Lastly, I will offer suggestions as to what could be done to uphold the integrity of the US’ union, such as through revision of the Electoral College system to better represent population distribution and aid in the American people feeling greater represented by their government within the current political and social climate.
The Impact of Constitutional Amendments
To begin, the autonomy of the state compared to the US’ national interest must be analyzed through a constitutional lens. More specifically, the impact of constitutional amendments such as the 10th, offer insight into how and why the individual states maintain such significant political, social and legal persuasions. This clause states “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” (Snowball 2023, p. 1). It is significant in the way this clause clearly identifies certain limitations to federal powers, as the default enforcer of delegated powers falls on the state, or to the people, not to the discretion of federal executives and bodies. This offers solid evidence for the fact that one of the United States’ most important documents, the Constitution, aids in facilitating the autonomous powers of the individual states, allowing each state to determine certain rulings such as setting their own taxes and regulating commerce (Schmidt 2013, p. 40). As a result, this inherently leads to discrepancies between the legislation passed on such issues between individual states, and lays a foundation for a system that considers the self-determination of the state to be just as important, if not more so, than the federal powers that be.
The Civil Rights Crisis
To contextualize, civil rights throughout the United States proved a considerable issue dividing state sentiments, with several southern states displaying resistance to civil rights movements and opposing relevant federal legislation. This issue is multi-layered, and with this in mind, it is important to acknowledge it was not only southern states displaying racism within its resistance to civil rights granted to African American slaves during the 1860s. Within the south between the years of 1865 to 1877, over 3,000 African American freed-men, as well as their white, Republican allies were murdered in the name of political violence and resistance (Budiansky 2008, p. 30). This was in resistance to the recent 13th amendment, ratified in order to abolish slavery across the United States, stating “neither slavery nor involuntary servitude shall exist within the United States” (Foner 2015, p. 1). It proved a development that certain white, ex-Confederate southerners were in uproar over, responding with acts of terror in order to reclaim their superiority over their African-American counterparts and respective white allies. This exemplifies civilians within certain states including South Carolina, Kentucky and Alabama acting in complete contrast to federal constitutional amendments and resisting overarching authority in order to enact white supremacist violence within their individual state. Evidently, this would not be a one-time occurrence within American history, leading to further exploration of American social and political division.
The Civil Rights Crisis - After the War
The civil rights crisis following the civil war pertaining to rights of African American peoples signified a continued division that did not cease after the end of the civil war. This is displayed through continued resistance to the rights of African Americans, highlighting political and social differences from state to state. Byman details the continued persecution African Americans faced after being granted voting rights. One in particular was the South Carolinian version of the Ku Klux Klan (KKK), rising to state prominence within the 1860s, described as a white supremacist paramilitary group with the aim to target and suppress African American voters (Byman 2021, p. 53). Coining themselves the ‘Red Shirts’ and supporting the Democratic party, the group incited significant violence and fear-mongering in order to oppress the African American population and used brute force to suppress their newfound voting rights. As a result, the number of African American voters in South Carolina plummeted within a decade, with 1876 reporting 90, 000 voters, and reaching as low as 3,000 African American voters by 1886 (Byman 2021, p. 54). These figures reflect the continuous persecution of African Americans within southern states, even after the ratification of the 13th constitutional amendment. It further signifies the division in political and social opinion that was rampant throughout the country, fuelled by a continued rejection of the federal law.
Congruently, the nature of party politics and subsequent divisions are reflected in what is known as the ‘first civil rights era’. While the Republican party, at large, aimed to enforce legislation protecting African American civil liberties, the Democratic party worked steadfastly against this momentum, further exacerbating the tension within state governments and federal decision-making (Jenkins & Peck 2021, p. 3). This ultimately hindered meaningful progress throughout the country concerning the protection of African American rights, and provides unwavering support for exploration of long, historical divisions within state and federal powers.
To further explore these aforementioned disparities, it is essential to consider counters to the white supremacist developments within southern states. Throughout this period of the nineteenth century, northern state communities within the likes of New York City offered political and social support for the emancipation of African American peoples from slavery, as well as their continued solidarity in the wake of those facing persecution after the ratification of the 13th amendment. Committees were established consisting of African American freedmen and women, alongside white allies advocating for the liberties and rights of the oppressed peoples who continued to face persecution following the federal ruling to abolish these practices (Pinheiro 2022, p. 4). This division in fundamental views of the application of federal legislation exemplifies the lack of unity within the nation, and questions whether there is truly a united front in the United States on certain civil rights issues. It was further enhanced by the ratification of the 14th amendment, which saw considerable civilian support from northern states who had fostered allyship with their newly freed African American counterparts. This amendment essentially broadened the definition of US citizenship to award equal protection under the Constitution to all formerly enslaved persons (Onion et al. 2009, p. 4). Consequently, as members of the ex-Confederate states began forming white supremacist groups such as the KKK and The Red Shirts, the constitutional amendments and northern civilian support was in direct contrast to these movements and their respective social and political ideologies.
In order to understand the power of the individual state compared to American national interest, it is imperative to analyze the differing stances on civil rights throughout the country at this time. The continued racial violence permeating throughout the country signified a division amongst sentiments that did not cease to exist after the end of the civil war. It is relevant to examine the impacts over the American views of federal powers considering the 10th amendment predated those of emancipating the enslaved which sets a certain precedent that even when a federal law is passed, there remains significant discretion the individual states can exercise. Although the newfound freedom of the enslaved African American peoples was enshrined in the Constitution, the mentality of resistance due to the concessions within the 10th amendment can foster a defiant attitude within certain states. This connects to the growth and influence of suppressing African American voting that the likes of the South Carolina Red Shirts were accomplished with minimal retribution at the time, leading to the persistence of racism in a systemic manner within these state authorities that perpetuated the racial oppression African Americans faced. Therefore, the division of state powers and their subsequent civilian movements pose a threat to conformity to federal laws, and further highlights a historical pattern of this tension within the United States.
Reproductive Rights - From Federal to State Jurisdiction
To continue, the fight for women’s reproductive rights throughout America that wages on to the current day is a model example of how the state and federal tensions prevail. This has been exacerbated since the overturning of the landmark Roe v. Wade case of 1973, which enshrined in federal law, the decision to keep or terminate a pregnancy was the choice of the individual, not the choice of the government (Center for Reproductive Rights 2022, p.1). Roe v. Wade set new limitations to governmental control over bodily liberties, and due to its strong civilian support amongst liberal states, was considered to be incredibly difficult to overturn. That was, until this development in fact eventuated in 2022, marking a time of increased legal divisions concerning fundamental individual rights. The decision to overturn Roe v. Wade prompted numerous shutdowns of safe abortion clinics, particularly throughout conservative southern states, however tensions have since risen even within these states, proving once again, the state resistance to federal law. Rankin explains, in the wake of abortion clinic shut-downs throughout states such as North Dakota, who spared no time in utilizing their increased authority over abortion rights in the way of this federal decision being overturned, certain clinics have attempted to strike alliances with local police forces to allow their clinics to remain open (2022, p. 229). This involves fostering a solid working relationship with local enforcement, who if they partake in such activity, are also acting in opposition to the laws of the federal powers. It highlights the division between certain liberal states and the overturning of this law, whilst also detailing resistance within southern states, further questioning the effectiveness of the federal union of the United States to establish laws and rulings that are favorable to its citizens. Perhaps there is too much difference in opinions on such fundamental issues to begin with, seeing as the United States’ population is one of the largest of its kind to regularly advocate for the importance of democracy. Evidently, applying limitations to bodily autonomy is angering many individuals within a variety of states, and further questions the current solidarity of the union, whilst spotlighting the potential for this faith to wither away in the coming decades.
Continuing, the individual state’s considerable jurisdictional leverage regarding abortion rights warrants further exploration of the legitimacy of the United States as a united republic. For an issue pertaining to women’s reproductive rights, the individual discretion of the state to enforce the closure of abortion clinics relates to the liberties granted to the individual state enshrined within the 10th amendment of the Constitution. Unlike the division found following the civil war, namely states’ resistance to new federal law, this current issue and the stark differences in state legislation is a result of federal concessions actioned within the amendment, dating back to its 1791 ratification. When it involves civil liberties and bodily autonomy, these variances tend to cause substantial civilian uproar compared to the likes of the 10th amendment being applied to varying levels of taxation between states. The American Center for Reproductive Rights documents these occurrences, and highlights the increased banning of abortions for all reasons other than rape and incest in over 15 states, with over 24 states tightening abortion rights within the first six months of Roe v. Wade being overturned (2024, p. 3). This directly exacerbates cultural, religious and civil rights differences within the United States, as conservative movements elevate hostility towards, and division from the decisions of liberal states. As a result, Dillon speculates this ‘culture war’ will increase the nation’s pre-existing historical division, further threatening the unity of federal power (2023, p. 3). When these divisions are able to be acted upon within concessions made in the Constitution to increase state autonomy, issues like abortion rights can actualize the potential threats to the federal union they create, and warrants comparison to other democratic nations to offer insight into potential alternatives to this pressing issue.
The 2024 Election and the Power of the Individual State
Furthermore, the 2024 US election results provide commentary on legislative state decisions in lieu of the federal precedent set by Roe v. Wade. Donald Trump, a leader of the Republican party affiliated with anti-abortion policies and supported by anti-abortion groups such as the Center for Life at Alliance Defending Freedom (ADF), attained the popular vote in Missouri, Montana and Arizona for the presidential candidacy (McCammon 2024, p. 4). However, when voters considered updated state constitutional protection for abortion rights, the result was in contradiction to the common Republican/Trump stance, with all three states’ ‘citizen initiated voting’ resulting in the passing of heightened protections for the rights of abortion (KFF 2024, p. 2). These state decisions strengthened reproductive freedoms, including allowing abortions up until viability, whilst states such as South Dakota and Nebraska failed to pass these protections. Evidently, the absence of federal protection for abortion rights is delegating this decision-making power to the states, many of whom are interpreting this in various manners and with varying degrees of reproductive rights secured for citizens. It offers curious consideration of the contrasts at play within the federal leaders and the state constitutional powers, indicating an opportunity for further revision of the level of allocated state power concerning rights for bodily autonomy.
A Comparative Analysis Case Study: Australia
Relating current findings to another democratic state such as Australia offers contextualization of a federal unity that surpasses the levels of those currently exhibited within the United States. This comparison is made within the context of Australia containing a considerably smaller population than America’s, however is relevant to consider when analyzing constitutional frameworks that encourage individual states’ identities against one like Australia’s that is more interested in a federalist union. The Australian Constitution (1901) clearly outlines the values of federalism and national unity to promote a democratic state that nurtures legitimacy of decision-making and national cooperation that is self-correcting, provisional and fosters social enquiry (Dixon 2018, p. 222). Within this, lies an absence of delegating state powers to be anything not within the Constitution, unlike the decisions within the American document. This can also be considered a product of the Constitution being based on a British model, which Dixon explains, places fundamental importance on federal sovereignty before the individual power of the states (2018, p. 223). This demands comparison as to how this has impacted issues such as limitations on bodily autonomy in comparison to wide variation of how federal concessions are applied on a state by state basis in the United States. Currently, Australian federal law applies blanket decriminalization of abortion to all six states and two territories (MSI Australia 2022, p. 7). As a result, the federal decision streamlined the subsequent laws each state and territory can enact, applying a base level of rights open to little state discretionary behavior. Evidently, the uniform power laid down at the federal level has more clearly defined the powers of the state to only make rules within the bounds of total decriminalization. Consequently, there is minimal pressure from citizens of either major political leanings (liberal or conservative) in resistance to this federal decision. This is a curious example to compare to the United States as both are nations valuing liberty and democracy, and further warrants conversation concerning the true nature of American federalism in light of such stark differences in state behavior referring to civil rights, including slavery throughout history, and reproductive rights in the current day.
The Electoral College - is it time to go?
With the former points in mind, in order to preserve the sanctity and integrity of America’s federal constitutional republic, one must consider potential adjustments to voting structures that can encourage a strengthened unified approach to current political and social crises. One poignant solution is to encourage the abolition of the Electoral College within federal voting systems. Since the induction of the Electoral College in 1970, there has been civilian concern for the “faithless elector” phenomenon. This refers to when the senators of each state who cast their electoral votes act in opposition to the decision of their state’s popular vote (Edwards 2004, p. 35). This action signifies a clear disharmony between the motives of senators and their respective state’s popular opinion, increasing concerns over the validity of the Electoral College, particularly when this results in swaying the Presidential outcome. The phenomenon has occurred on several occasions, including most recently, in 2016 when Donald Trump lost the popular vote, however, won the election due to securing the majority in the Electoral College (National Archives 2016, p. 1). It questions whether the American people are truly maintaining any kind of legitimate democratic, equal say in this process, and in light of decisions such as Roe v. Wade being overturned, calls for attention and revision. This provides rationale for the system to be revised to a total national popular direct vote for presidency. Supporters for the national popular vote believe in this revision’s ability to ensure no citizen vote is cancelled out at the state level by an Electoral College vote that differs from the state’s popular vote majority sentiment (NPV 2024, p.2). As a result, this process would ensure each vote is counted directly for the respective presidential candidate and maintains its political relevancy, no matter which state the vote is conducted. If this were to be enacted, there is a considerable chance this would aid in federal decision-making to better reflect the collective opinions of the United States, aiding in bridging gaps between how individual states operate and interpret federal law. By fostering a political and social culture striving for increased unity in the federal powers, current and historical threats to national interests can be mitigated.
Conclusion
To conclude, the social, legal and political persuasions of the individual American state system is reflected both historically and in the present time. Fundamental differences in the application of concessions within the 10th amendment have proven to impact both resistance and conformity to federal changes during the decades following the American Civil War. It is proposed the lack of conformity was birthed out of these kinds of allowances of individual state discretion, supplemented by increased racial violence that did not cease following the ratification of the 13th and 14th amendments. As a result, the importance of, and civilian faith in, the federal powers is diminished, continuing into the current age when considering the state divisions on reproductive health. The overturning of the federal decision in Roe v. Wade has exacerbated this tension, as notable differences in state laws infringing upon bodily autonomy of a pregnant person persist. Whilst certain states have adopted strengthened reproductive protections at the state level during the 2024 election, others have regressed. This further questions whether the United States can stand united on issues of civil liberties and warrants comparison to other nations that value liberal and federalist qualities, such as Australia. Subsequently, the revision (or abolition) of the Electoral College may just be the starting decision the United States needs to make in order to encourage increased federal unity as the country experiences increased division on cultural and health issues, subsequently displaying the widening tensions between the individual power of the state and its impact on the federal unity of the United States.
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