During his final term, the conservative majority of the US Supreme Court openly acted against the interests of the American people and priorities on abortion rights, gun control, and climate change. And the Court’s majority are now threatening further action – again in defiance of public opinion – to restrict contraception, same-sex marriage and voting rights. Politics and theocracy have replaced legal restraint and precedent in the court’s decision-making process.
Ultimately, Congress would need to pass new legislation to restore the rights that had been revoked by the Court. But with deep ideological and political divisions in both the Houses of Congress and procedural rules (filbuster) requiring 60% of the vote in the Senate, any such action is likely to come slowly.
All is not lost, however, as US states can aggressively leverage their constitutional powers to preserve the liberties of Americans. The Tenth Amendment holds that, “Powers neither delegated to the United States by the Constitution, nor prohibited by it to the States, are respectively reserved for the States or the people.”
In line with this principle, states and even cities often collaborate with the federal government to implement their own measures to implement or strengthen national policies. But the Tenth Amendment also provides a constitutional basis for states and cities to challenge or oppose federal policies.
Thus, in recent years, states such as California and New York, and cities such as San Francisco and Austin, Texas, have used “resistant federalism” to advance policies and protect the rights supported by the majority of their citizens.
On abortion, California Governor Gavin Newsom’s administration has signed multi-state treaties to protect access to reproductive care, expanded health care funding to all residents (including undocumented), and co-pays for abortions. abolished, and introduced a constitutional amendment that codified the right. to abort. Similarly, Michigan citizens signed more than 750,000 on November’s ballot to make a “reproductive freedom for all” constitutional amendment in record time, and citizens in Vermont will vote on a similar provision.
Polls show that these measures command around 70% support and will likely pass. And many other states with controversial elections are likely to have higher turnout percentages. In Kansas, a Republican-leaning state, a high voter turnout 59% of citizens recently rejected a proposed constitutional amendment that said there was no right to abortion. In addition, an analysis by Nate Cohn of the New York Times shows that voters in “more than 40 of the 50 states” will vote the same way as Kansas is given the majority a chance (the exception being some southern states, Utah, and Wyoming).
Voters are indicating they will not tolerate the kind of religious extremism that Supreme Court Justice Clarence Thomas intends to pursue through additional new restrictions on reproductive and marriage rights. And, thanks to resistant federalism, women will be able to access abortion and reproductive-health services by traveling to states that retain these rights. Indeed, several businesses have already announced that they will cover travel costs for their employees in 22 states that have committed to ban abortions.
But the availability of these services in progressive states may not help many low-income women who depend on Medicaid in their states of residence. Medicaid pays for 42% of all births in the US. Because it is a partnership between the federal government and the states, however, Medicaid relies on state as well as federal funding. Of the 12 states that have not adopted the Medicaid expansion offered under the Affordable Care Act (Obamacare), all have limited maternal and child care coverage after birth, and seven have abortion restrictions.
The latest Supreme Court ruling limiting gun-safety laws would have equally life-threatening consequences. This year alone, there have already been over 300 mass shootings across the country, which have claimed lives.
Again, California has been a leader on sensible gun-control measures to limit some of the damage. For more than 20 years — except for two years during the pandemic — its rate of firearm violence has fallen steadily, giving the state one of the lowest firearm mortality rates in the country.
People are less likely to die from gunshots in California than almost anywhere else in the country, and they are 25% less likely to die in mass shootings. These figures are a direct result of legislation – including assault-weapon bans, red flag laws, long waiting periods for gun purchases, universal background checks, mental-health reporting and age limits – that have allowed guns since the early 1990s. deaths have been halved.
Even in states such as Texas, many of these measures have majority support. On this issue, as in reproductive rights, the Court has shown itself to be out of step with most US citizens. The answer is to take advantage of the underutilized powers given to the states and citizens by the Constitution, as is already being done by a new movement of progressive federalism at the grassroots level.
The first progressive era occurred in the early twentieth century and produced a number of political and economic reforms that made government at all levels more honest, more democratic and more effective in providing opportunities for all citizens.
Its overarching goal was to strengthen American democratic institutions and spread the benefits of economic progress more widely. Those same goals resonate with most Americans today, even those who do not rely on the federal government but continue to rely on state and local officials to serve their interests.
The Supreme Court has left Americans no choice. A new era of state-by-state progressive federalism is now at hand.