#States Rights

[liberalsarecool]

Human rights are not a popularity contest.

[yesterdaysprint]

New-York Tribune, September 10, 1916

[mostlysignssomeportents]

Blue states should play “constitutional hardball”

NEXT WEDNESDAY (October 23) at 7PM, I'll be in DECATUR, GEORGIA, presenting my novel THE BEZZLE at EAGLE EYE BOOKS.

Nothing's more frustrating that watching the GOP smash norms and decency to advance policies that harm millions of Americas, unless it's that, plus Democratic officials stamping their feet and saying, "C'mon guys, play fair."

The GOP's game is called "constitutional hardball." Think: Mitch McConnell refusing to hold confirmation hearings on Obama's federal judiciary appointments, not never for Merrick Garland's Supreme Court seat – then filling the Federal judiciary with the least-qualified, most FedSoc-addled lunatics in US history, all for lifetime appointments.

As bad as this is at the federal level, it's even worse at in the states, especially the Republican "trifecta" states where the GOP holds the governorship and the state house and senate, where shameless gerrymandering and legislative attacks on hard-won ballot measures are the order of the day. GOP-held state governments engage in rampant interstate aggression, targeting out-of-state abortion providers, publishers, and journalists.

This is a one-sided Cold Civil War, because state Dems, for the most part, are unwilling to play hardball in return (the closest they come is when, say, California sets strict emissions controls and manufacturers adopt them nationwide, rather than making special cars for the giant California market). Republicans engage in constitutional hardball and Dems refuse to fight back, a phenomenon called "asymmetrical constitutional hardball":

https://columbialawreview.org/content/asymmetric-constitutional-hardball/

Writing for The American Prospect, Arkadi Gerney and Sarah Knight make the case for symmetrical constitutional hardball:

https://prospect.org/politics/2024-10-18-playing-hardball/

The pair argue first, that the best way to get Republican state houses to play fair is to credibly threaten them with retaliatory action. They cite the recent attempt at a last-minute change the way that Nebraska's Electoral College votes are apportioned, which would have given all of five the state's EC votes to Trump. Maine threatened to effect the same change to its Electoral College system, which would have given all four of its EC votes to Harris. Nebraska surrendered.

But there's also a second advantage to playing Constitutional Hardball: it makes blue states better. For example, Minnesota gives free college tuition to exceptional low/middle-income students. Neighboring North Dakota got tired of losing all its smartest kids Minnesota schools and created its own subsidy. As Gerney and Knight point out, Minnesota (and other blue states) still has a huge advantage when it comes to attracting top talent, because attending university in a state with legal abortion is vastly preferable (and safer) than doing a degree in a forced-birth state.

Red states are bent on making life horrible for some really great people. The hardworking, talented Haitian migrants caught in the Springfield pogroms that Trump incited would be a fine addition to any blue state town – anyone who's got the gumption to haul ass out of a failed state and make their all the way to Springfield is gonna be a fantastic neighbor, citizen and worker, just like my refugee grandparents and father, who endured a million times more hardship than their neighbors ever did, getting to Toronto, finding jobs, and starting their family.

Influxes of young, hardworking immigrants are especially good for rural towns with dwindling populations. No wonder rural towns with above-average net migration swung for Biden in 2020.

All over America, families are despairing of their lives in red states. Whether you're worried that you or someone you love might need to terminate a pregnancy, or you're worried about gender-affirming care for you or a loved one, you can put your worries to rest in a blue state. Same goes for nurses and doctors who are worried they can't do medicine unless it accords with the imaginary dictates of Bronze Age prophets as claimed by pencil-neck Hitler wannabe Bible-thumper with a private jet and a face from Walmart. Fill the blue states with great schools, libraries and hospitals, and invite everyone who wants to do their job in a free country to come and work at 'em. Line every state border with abortion and mifepristone clinics, and set up billboards advertising the quality of life, the jobs, and the freedom in blue state America.

Every blue state public pension fund should ban investments in fossil fuels, and invest like crazy in renewables, especially in Texas, to hasten the bankrupting of the petro-kleptocracy that controls the state. Blue states should tack surcharges on goods imported from "right to work" states where unions are effectively banned, to compensate for the additional product testing needed to ensure that scab products are safe to use (ahem, Boeing).

Create joint occupational licensure rules across blue states: if you're certified as a teacher, nurse, hairdresser or auto-mechanic in New York, you should be able to carry that certification with you to Minnesota, California, or Maine. Create multi-state funding pools to build public housing. Offer med-school scholarships to the smartest red state kids, at universities where they'll learn evidence-based obstetrics rather than the Lysenokist nonsense taught at the Roy Moore College of Pediatrics and Obstetrics.

Dems have to get over their fear of "states' rights" and start playing state-level hardball. This doesn't mean escalating cruelty. Quite the contrary: every cruel measure enacted as red state red meat is a chance for blue states to extend a kindness, and capture even more of the best, brightest and kindest of the nation, creating a race to the top that Republicans can only win by abandoning their performative cruelty and corruption.

Tor Books as just published two new, free LITTLE BROTHER stories: VIGILANT, about creepy surveillance in distance education; and SPILL, about oil pipelines and indigenous landback.

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2024/10/18/states-rights/#cold-civil-war

[dosesofcommonsense]

End the Federal Department of Education.

Send the responsibility back to the states. Some will be better than others. Open market capitalism on their students’ education. Less Federal taxes. Higher states and personal responsibility.

Want better students?

Hire better teachers and use better curriculum.

[rebelyells]

In Defense of Southern Heritage!

Matt Walsh Defends our Heritage!

[nonenosome2]

While I don't agree with abortion, I do find it gunny how many of the Pro-choice people are like "Haha. Abortion is legal in our state now. We sure got one over in you Trump and Supreme Court."

Like, that's the point? That was literally the point of the ruling. You aren't pulling a fast one when you do what should have been done before.

[odinsblog]

He is such an inconsistent lying sack of shit. The only things Lindsey Graham is consistent at are lying and being inconsistent.

[daloy-politsey]

[dreaminginthedeepsouth]

instagram.com :: Jesse Duquette (@_jesseduquette)

* * * *

LETTERS FROM AN AMERICAN

July 8, 2024

HEATHER COX RICHARDSON

JUL 09, 2024

On July 9, 1868, Americans changed the U.S. Constitution for the fourteenth time, adapting our foundational document to construct a new nation without systematic Black enslavement. 

In 1865 the Thirteenth Amendment to the Constitution had prohibited slavery on the basis of race, but it did not prevent the establishment of a system in which Black Americans continued to be unequal. Backed by President Andrew Johnson, who had taken over the presidency after actor John Wilkes Booth had murdered President Abraham Lincoln, white southern Democrats had done their best to push their Black neighbors back into subservience. So long as southern states had abolished enslavement, repudiated Confederate debts, and nullified the ordinances of secession, Johnson was happy to readmit them to full standing in the Union, still led by the very men who had organized the Confederacy and made war on the United States. 

Northern Republican lawmakers refused. There was no way they were going to rebuild southern society on the same blueprint as existed before the Civil War, especially since the upcoming 1870 census would count Black Americans as whole persons for the first time in the nation’s history, giving southern states more power in Congress and the Electoral College after the war than they had had before it. Having just fought a war to destroy the South’s ideology, they were not going to let it regrow in peacetime.

Congress rejected Johnson’s plan for Reconstruction.

But then congressmen had to come up with their own. After months of hearings and debate, they proposed amending the Constitution to settle the outstanding questions of the war. Chief among these was how to protect the rights of Black Americans in states where they could neither vote nor testify in court or sit on a jury to protect their own interests. 

Congress’s solution was the Fourteenth Amendment.

It took on the infamous 1857 Dred Scott v. Sandford decision declaring that Black men "are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens.” 

The Fourteenth Amendment provides that “[a]ll 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.” 

The amendment also addressed the Dred Scott decision in another profound way. In 1857, southerners and Democrats who were adamantly opposed to federal power controlled the Supreme Court. They backed states’ rights. So the Dred Scott decision did more than read Black Americans out of our history; it dramatically circumscribed Congress’s power. 

The Dred Scott decision declared that democracy was created at the state level, by those people in a state who were allowed to vote. In 1857 this meant white men, almost exclusively. If those people voted to do something widely unpopular—like adopting human enslavement, for example—they had the right to do so. People like Abraham Lincoln pointed out that such domination by states would eventually mean that an unpopular minority could take over the national government, forcing their ideas on everyone else, but defenders of states’ rights stood firm. 

And so the Fourteenth Amendment gave the federal government the power to protect individuals even if their state legislatures had passed discriminatory laws. “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,” it said. And then it went on to say that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” 

The principles behind the Fourteenth Amendment were behind the 1870 creation of the Department of Justice, whose first job was to bring down the Ku Klux Klan terrorists in the South. 

Those same principles took on profound national significance in the post–World War II era, when the Supreme Court began to use the equal protection clause and the due process clause of the Fourteenth Amendment aggressively to apply the protections in the Bill of Rights to the states. The civil rights decisions of the 1950s, 1960s, and 1970s, including the Brown v. Board of Education decision outlawing segregation in public schools, come from this doctrine. Under it, the federal government took up the mantle of protecting the rights of individual Americans in the states from the whims of state legislatures.

Opponents of these new civil rights protections quickly began to object that such decisions were “legislating from the bench,” rather than permitting state legislatures to make their own laws. They began to call for “originalism,” the idea that the Constitution should be interpreted only as the Framers had intended when they wrote it, an argument that focused on the creation of law at the state level. Famously, in 1987, President Ronald Reagan nominated Robert Bork, an originalist who had called for the rollback of the Supreme Court’s civil rights decisions, for a seat on that court. 

Reacting to that nomination, Senator Ted Kennedy (D-MA) recognized the importance of the Fourteenth Amendment to equality: “Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy….”

From the perspective of 2024, Kennedy’s comments seem prescient, but the country could go even further backward. The 2024 Republican Party platform, released today, calls for using the Fourteenth Amendment not to protect equal rights for Americans from discriminatory laws, as those who wrote, passed, and ratified the amendment intended. Instead it calls for using the Fourteenth Amendment to protect the rights of fetuses from the time of fertilization. It says that states should start passing laws protecting those rights: so-called fetal personhood laws that have their roots in the 1960s and were considered a fringe idea until about fifteen years ago. Those laws prohibit all abortion, in vitro fertilization (IVF), and several forms of contraception.  

Saying states should pass such laws echoes the language Trump has used to try to avoid the Republicans’ extreme and unpopular abortion stance by claiming, as the Supreme Court did in the Dobbs v. Jackson Women’s Health Organization decision, that states alone should write laws covering abortion. But in its reaction to the Republican platform today, the antiabortion Susan B. Anthony Pro-Life America organization made it clear that the platform’s reference to the Fourteenth Amendment was designed to open the way for a national abortion ban. The Fourteenth Amendment, after all, gives Congress “power to enforce, by appropriate legislation, the provisions of this article.”

“It is important that the [Republican Party] reaffirmed its commitment to protect unborn life today through the 14th Amendment,” the organization said in a statement. “Under this amendment, it is Congress that enacts and enforces its provisions. The Republican Party remains strongly pro-life at the national level.”

LETTERS FROM AN AMERICAN

HEATHER COX RICHARDSON

[aerendil]

[gleep-glorp-bobcat]

[yesterdaysprint]

The Seattle Star, Washington, March 17, 1944

[mostlysignssomeportents]

Fighting the privacy wars, state by state

In 2021, Apple updated its mobile OS so that users could opt out of app tracking with one click. More than 96% opted out, costing Facebook $10b in one year. The kicker? Even if you opted out, Apple continued to spy on you, just as invasively as Facebook had, as part of its competing targeted ad product:

https://pluralistic.net/2022/11/14/luxury-surveillance/#liar-liar

If you’d like an essay-formatted version of this post to read or share, here’s a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2023/02/23/state-of-play/#patchwork

The fact that Apple — a company that has blanketed the world with anti-surveillance billboards — engaged in deceptive, pervasive surveillance reveals the bankruptcy of “letting the market decide” what privacy protections you should have.

When you walk into a grocery store, you know that the FDA is on the job, making sure that the food you buy doesn’t kill you — but no one stops the grocery store from tracking literally every step you take, every eye movement you make (no, really!) and selling that to all comers:

https://themarkup.org/privacy/2023/02/16/forget-milk-and-eggs-supermarkets-are-having-a-fire-sale-on-data-about-you

America’s decision to let the private sector self-regulate commercial surveillance is a grotesque failure of duty on the part of Congress, which has consistently failed to pass comprehensive privacy legislation. There are lots of reasons for this, but the most important is that American cops and spies are totally reliant on commercial surveillance brokers, and they fight like hell against any privacy legislation:

https://pluralistic.net/2021/04/13/public-interest-pharma/#axciom

The private sector’s unregulated privacy free-for-all means that cops don’t need to get warrants to spy on you — they can just buy the data on the open market for pennies:

https://pluralistic.net/2020/08/18/fifth-pig/#ppp

The last Congressional session almost passed a halfway decent (but still deeply flawed) federal privacy law, but then they didn’t. Basically, Congress only passes laws that can be sandwiched into 1,000-page must-pass bills and most of the good stuff that gets through only does so because some bought-and-paid-for Congressjerks are too busy complaining about “woke librarians” to read the bills before they come up for a vote.

The catastrophic failure to protect Americans’ privacy has sent human rights groups hunting for other means to accomplish the same end. On the federal level, there’s the newly reinvigorated FTC, under the visionary, muscular leadership of Lina Khan, the best Commission chair in a generation. She’s hard at work on rules to limit commercial surveillance:

https://pluralistic.net/2022/08/12/regulatory-uncapture/#conscious-uncoupling

But FTC regs take time to pass, and it can be hard for ordinary individuals to trigger their enforcement, which might leave you at the mercy of your local officials when your privacy is invaded. What we really need is a privacy law with a “private right of action” — the right to go to court on your own:

https://www.eff.org/deeplinks/2019/01/you-should-have-right-sue-companies-violate-your-privacy

The business lobby hates private right of action, and they trick low-information voters into opposing them with lies about “ambulance chasers” who sue innocent fast-food outlets for millions because they serve coffee that’s too hot:

https://pluralistic.net/2022/06/12/hot-coffee/#mcgeico

With Congress deadlocked and privacy harms spiraling, pro-privacy groups have turned to the states, as Alfred Ng writes for Politico:

https://www.politico.com/news/2023/02/22/statehouses-privacy-law-cybersecurity-00083775

The best provisions of the failed federal privacy law have been introduced as state legislation in Massachusetts and Illinois, and there are amendments to Indiana’s existing state privacy law — 16 states in all are working on or have some kind of privacy law. This means businesses must live with the dread “patchwork of laws,” which serves the business lobby right: they must do business in potentially radically different ways in different states, and small missteps could cost them millions, in true fuck-around-and-find-out fashion.

As Ng writes, these laws don’t have to pass in every state. America’s historically contingent, lopsided state lines mean that some states are so populous that whatever rules they pass end up going nationwide (the ACLU’s Kade Crockford uses the example of California Prop 65 warnings showing up on canned goods in NY).

As Congress descends further into self-parody, the temptation to treat the federal government as damage and route around it only mounts. It’s a powerful, but imperfect strategy. On the negative side, it takes a lot of resources to introduce legislation into multiple states, and to win legislative fights in each.

Think of the incredible fuckery that the coalition of Apple, John Deere, Wahl, and other monopolists got up to defeat dozens of state Right to Repair laws, even snatching victory from the jaws of defeat in New York state, neutering the incredible state electronics repair law before it reached the governor’s desk:

https://www.techdirt.com/2023/02/17/more-details-on-how-tech-lobbyists-lobotomized-nys-right-to-repair-law-with-governor-kathy-hochuls-help/

Indeed, the business lobby loves lobbying statehouses, treating them as the Feds’ farm-leagues, filled with naive, easily hoodwinked rubes. Organizations like ALEC use their endless corporate funding to get state legislation that piles farce upon tragedy, like the laws banning municipal fiber networks:

https://pluralistic.net/2022/12/15/useful-idiotsuseful-idiots/#unrequited-love

The right has always had hooks in state legislatures, but they really opened up the sluice gates in the runup to the 2010 census, when a GOP strategist called Thomas Hofeller started pitching Republican operatives on a plan called REDMAP, to capture state legislatures in time for a post-2010 census mass-redistricting that would neutralize the votes of Black and brown people and deliver permanent rule by an openly white nationalist Republican party that could lose every popular vote and still hold power.

Of course, that’s not how they talked about it in public. Though the racial dimension of GOP gerrymandering were visible to anyone on the ground, Hofeller maintained a veneer of plausible deniability on the new REDMAP districts, leaving the racist intent of GOP redistricting as a he-said/she-said matter of conjecture:

https://www.klfy.com/national/late-gop-redistricting-gurus-files-hint-at-partisan-motives/

That is, until 2018, when Satan summoned Hofeller back to hell, leaving his personal effects in the hands of his estranged anarchist daughter, Stephanie, who dumped all her old man’s files online, including the powerpoint slides he delivered to his GOP colleagues where he basically said, “Hey kids, let’s do an illegal racism!”

https://www.vice.com/en/article/pked4v/the-anarchist-daughter-of-the-gops-gerrymandering-mastermind-just-dumped-all-his-maps-and-files-on-google-drive

Sometimes, laws that turn on intent are difficult to enforce because they require knowledge of the accused’s state of mind. But there are so many would-be supervillains who just can’t stop themselves from monologing, and worse, putting it in writing.

As bad as state politics can be, they’re still winnable battlefields. Last year saw a profound win on Right to Repair in Colorado, where a wheelchair repair bill, HB22–1031, made history:

https://www.eff.org/deeplinks/2022/06/when-drm-comes-your-wheelchair

That win helped inspire Rebecca Giblin and I when we were writing Chokepoint Capitalism, our book about how Big Tech and Big Content rip off creative workers, and what to do about it.

https://chokepointcapitalism.com

Many readers have noted that the first half of the book — where were unpack the scams of streaming, news advertising, ebooks and audiobooks, and other creative fields — is incredibly enraging.

But if you find yourself struggling to concentrate on the book because of a persistent, high-pitched whining noise that you suspect might be a rage-induced incipient aneurysm, keep reading! The second half of the book is full of detailed, shovel-ready policy proposals to get artists paid, including a state legislative proposal that works from the same playbook as these state privacy laws.

If your creative work entitles you to receive royalties, your contract will typically include the right to audit your royalty statements. If you do audit your royalties, you will often find “discrepancies.” We cite one LA firm that has performed tens of thousands of record contract audits over decades, and in every instance except one, the errors they discovered were in the labels’ favor.

This is a hell of a head-scratcher. I can only assume that some kind of extremely vexing, highly localized probability storm has taken up permanent residence over the Big Three labels’ accounting departments, making life hell for their CPAs, and my heart goes out to them.

Anyway: if you find one of these errors and you tell your label or publisher or studio, “Hey, you stole my money, cough up!” they will pat you on the head and say, “Oh, you artists are adorable but you can’t do math. You’re mistaken, we don’t owe you anything. But because we’re good natured slobs, we’ll offer you, say, half of what you think we owe you, which is good, because you can’t afford to sue us. And all you need to do to get that money is to sign this non-disclosure agreement, meaning you can’t tell anyone else about the money we’re stealing from them.

“Oh, and one more thing: your accountant has to promise never to audit us again.” As Caldwell-Kelly said when we talked about this on Trashfuture, this is like the accused murderer telling the forensics team, “Dig anywhere you’d like in my garden, just not in that corner, I’m very sentimental about it.”

https://trashfuturepodcast.podbean.com/e/amazon-billing-amazon-for-amazon-feat-cory-doctorow-and-rebecca-giblin/

Now, contracts are a matter of state law, and nearly every entertainment industry contract is signed in one of four jurisdictions: NY, CA, TN (Nashville), and WA (games companies and Amazon). If we amended the state laws in one or more of these to say, “NDAs can’t be enforced when they pertain to wage theft arising from omissions or misstatements on royalties,” we could pour money into the pockets of creative workers all over the world.

Yes, the entertainment giants will fight like hell against this, and yes, they have a lot of juice in their state legislatures. But they’re also incredibly greedy and reckless, and prone to such breathtaking and brazen acts of wage theft that they lurch from crisis to crisis, and at each of these crises, there is a space to pass a law to address these very public failings.

For example, in 2022, the Writers Guild of America — one of the best, most principled, most solidaristic and unified unions in Hollywood — wrested $42 million from Netflix, which the company had stolen from its writers:

https://variety.com/2022/film/news/wga-wins-42-million-arbitration-netflix-1235333822/

Netflix isn’t alone in these massive acts of wage theft, and this is certainly not the only way Netflix is stealing from creative workers. There’s never just one ant: if Netflix cooked the books for writers, they’re definitely cooking it for other workers. That means there will be more scandals, and when they break, we can demand more than a bandaid fix for one crime — we can demand modest-but-critical legislative action to fix contracts and prevent this kind of wage-theft in the future.

The state legislatures aren’t an intrinsically better battlefield for just fights, but they are an alternative to Congress, and there is space to make things happen in just some of the 50 state houses that can ripple out over the whole country — for good and bad.

[Image ID: Blind justice, holding aloft a set of unbalanced scales; in the lower scale is a map of the USA showing the state lines; in the higher scale rests the capitol building.]

[dosesofcommonsense]

Individual States Rights. If the Fed’s won’t enforce our borders, then we’ll enforce the borders of our State.

[rebelyells]

It’s Lee - Jackson Day. Still an official holiday in Virginia hearts and minds!