States: What Are They Good For? Absolutely Nothing

By Legal Correspondent Saori Shioseki with
Jenny Herk in Florida

You may have noticed that Americans don't just live in a nation, they live in a state.  This seems great if you live in a cool state like California or a snobby one like Massachusetts, but less so if you live in some distant wilderness like North Montana [Louise, please confirm name – Ed.].

Once they were useful for attempting to distract pre-screen rugrats by getting them to count license plates on the Merritt Parkway.

But now what are they good for?

Justice Louis D. Brandeis, a smart fella and great Bostonian who unlike his successors never got to go on half million dollar vacations with Nazi-admiring plutocrats, once explained the value of states:  

“It is one of the happy incidents of the federal system,” Justice Louis D. Brandeis wrote in 1932, “that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

Let's see what experiments in democracy are cooking in the labs today.

First stop: America's #1 hellhole, Florida.

A blend of Southern racism and Northern corruption, Florida has always been a place where democracy came to lie on a chaise, stroke out, and die.   And that was before pudding and torture loving Ron DeSantis came to town.

First, DeSantis and his Republican stooges, um, state legislators, decided to overturn the decision of Florida voters to allow ex-cons to vote.  To undermine the verdict of the voters, they hatched a scheme to make it a crime for such individuals to register to vote unless they had paid all of their fines and courts costs.  Fun fact: there is no way for these unfortunate souls to know what those fees and costs are.  Ergo, they can't vote, forever, exactly as the voters didn't intend:

Florida: a great place to visit, but not to live free

In November 2018, Floridians changed that by adopting [a] state constitutional amendment that automatically restored the right to vote for most Floridians with felony convictions, except those convicted of murder or a felony sex offense, who had completed the terms of their sentence.

The amendment was expected to restore voting rights to as many as 1.4 million Floridians. But on the heels of its passage, the Florida Legislature and governor limited the reach of this historic re-enfranchisement. They adopted a law requiring that certain court debts be paid before the right to vote is restored. This pay-to-vote requirement disqualified hundreds of thousands of people who owe court debts they can’t afford to pay.

The state adopted this antidemocratic system knowing there is no centralized database where potential voters can learn whether they even owe disqualifying court debts.  

Just to take a step back, why are elections for federal offices under the control of racist state laws and thirsty and hungry pudding lovers anyway?   Even in 1789, the slaveholding white men who wrote the U.S. Constitution suspected there might be a problem here:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. 

U.S. Constitution, Art. I, Sec. 4.

Ron's come a long way since Gitmo. Or not.

But the assault on freedom concocted in Dr. DeSantis's lab doesn't stop at voting rights.  There's also the little matter of freedom of speech and thought disappearing down there.  

There used to be this small hip liberal arts college down in Sarasota, called New College, a Florida state institution.  Professors taught and students learned, or not, and all was jolly until ol' Go-Go Boots came to town:

New College of Florida’s board of trustees declined to grant tenure to five veteran faculty members on Wednesday, a controversial move that critics said stemmed from inappropriate interference from the Sarasota school’s interim president, Richard Corcoran.

The vote followed an unusually heated debate among the trustees, frequently interrupted by jeers and chants of “shame on you” from a crowd onlookers who sat through the nearly three-hourlong meeting....

Only four members of the 13-person board voted in favor of tenure.., including faculty representative Matthew Lepinski and student trustee Grace Keenan.

The five faculty members were chemists Rebecca Black and Lin Jiang; oceanographer Gerardo Toro-Farmer; Islamic scholar Nassima Neggaz; and Hugo Viera-Vargas, who studies Caribbean music. All were described as excellent researchers and teachers by dozens of colleagues and students who spoke before the board.

At the end of the trustees meeting, the typically reserved Lepinski addressed his colleagues: “I am concerned over the direction this board is taking.… I wish you the best, but this is my last board meeting.”

He later announced that he was also leaving his position in the computer science department at the end of the term, the second professor from the department to do so in recent weeks.

The tenure cases came under scrutiny earlier this month after Corcoran circulated a memo recommending that the board vote to defer or deny tenure to the five faculty members under consideration. He cited “extraordinary circumstances,” including “a renewed focus on ensuring the College is moving towards a more traditional liberal arts institution” and “current uncertainty of the needs of the divisions/units and College.”

The memo, which has drawn criticism from the faculty union leaders and national organizations advocating for academic freedom, also referenced the school’s recently overhauled board of trustees and administration.

In January, Gov. Ron DeSantis appointed six trustees with a mission to reform the small liberal arts college. In its first two meetings, the trustees voted to terminate then-President Patricia Okker and dismantle the school’s office of diversity, equity and inclusion. ...interim provost Bradley Thiessen [had] approved the applications of all five candidates in February while standing in as interim president prior to Corcoran’s arrival....

Another new priority for the school is to “be a beacon of free speech to the nation,” the plan states. To achieve that aim, it says, incoming freshman will be required take courses in “the importance of free speech and inquiry,” and the school will host lectures on “the status of free speech nationally and around the world.

Florida's new vision for public schools

The free speech bit was a nice ironic touch. It's also part and parcel of Florida's authorization of vigilantes to yank books from school libraries under the transparently fraudulent rubric of “parents' rights,” which in Florida means the right of self-appointed censors to decide what your kids can read in violation of your parental rights.

We used to think that academic freedom in public institutions was protected by the First and especially the Fourteenth Amendment of the U.S. Constitution, but these days, who knows?

It's gotten so bad that even the mighty and mighty evil Walt Disney Co. has sued to prevent Florida from further violating its rights to express its views:

Disney filed a 77-page lawsuit in federal court, charging DeSantis and other officials with violations of the contracts clause, the takings clause, due process and its First Amendment right to protected speech. In its lawsuit, Disney says, "This government action was patently retaliatory, patently anti-business, and patently unconstitutional." The company is asking a federal judge to declare the board's action "unlawful and unenforceable."

It's beginning to look like we'll have to leave our visit to other laboratories of democracy for another day (Texas's assaults on our country and our rights could take a dozen posts by itself), but before we go, let's remember what's going on.

The idea that states were somehow “sovereign” has a long history in America.  In fact, we even fought a war over it.  Although you won't learn any of this in Florida schools, state sovereignty lost. 

To reconstitute the shattered Union, the reconstructing fathers enacted among others the 14th Amendment which states in part:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

U.S. Constitution, Amend. XIV, Sec.1.

What happened?  For the first time in the 253-year history of The Massachusetts Spy, we blame – Both Sides.  The white extremists doing business as the Republican Party led the attacks of freedom and democracy in Florida and other states.  But their opponents, until very recently, put up almost no resistance.

And who can blame them? It's exhausting enough to keep with with national politics.  A lot of us didn't have the time and energy to worry about what was going on in some state capitol 600 miles or more from where we lived. As a result, while we were sleeping, our state-level democracies were stolen from us.

Even under the post-14th Amendment understanding of state power, as the great Janelle Bouie noted,

As a unit of governance, a state legislature is both unusually powerful, with broad discretion over large areas of public policy, and unusually open to partisan and ideological capture through luck, timing and open manipulation of the rules. Part of the political story of the past decade (and farther back still) is how the Republican Party and the conservative movement have used these facts to their advantage.

We're starting to think that the problem with federalism is federalism itself.

We hate to disagree with the great Louis D. Brandeis, but on the basis of the evidence, we'd have to say that federalism is terrible and needs to be cabined to the maximum extent possible by all three branches of the Federal Government: the Executive, acting primarily through the Justice Department enforcing the 14th Amendment, the Legislative Branch by passing laws to enforce the promises of the 14th Amendment, and the Judiciary, alas currently dominated by bent Republicans who use federalism as a tool to prop up white supremacy.

If we end up in a country in which half of us live in states made unfree (and undemocratic) by out of control and invariably Republican state Governors and legislators, we will have traded our freedom for a mess of pudding. 

To us, that seems much worse for liberty and democracy than some Stanford Law students interrupting a bent Federal judge.