States’ Rights Comes Full Circle?
In Missouri, far right politicians are proposing a law that would effectively criminalise seeking a legal abortion in another state. In Idaho, far right politicians are proposing a law that would effectively criminalise travel across a state line to obtain medical support for one’s trans child.
Whatever one’s position on either of the underlying issues, these seem to me a couple of the stranger and more authoritarian legislative proposals to blossom at the state level since slavery days. I am not a lawyer, nor do I play one on TV — but it seems to me this is a two-footed stomp on the tradition of States’ Rights, something I would not expect from the US Far White.
An essential element of States’ Rights as I understand it, is the ability of US states to propose and enact divergent legislation on various issues on which the Fed has not yet taken a strong stand. (Personally, I think the Fed needs to take a stronger stand on a number of issues — primarily the rules for conducting elections — but that’s another topic). So for example, Washington (state) can choose to legalise marijuana while other states can choose not to. Nevada can make gambling legal, neighbouring states can ban it.
The recent bizarre “novelty legislation” proposes that if you travel to another state and do something that is perfectly legal in that state (like gambling in Reno), you could be exposed to persecution, er, sorry, civil prosecution, when you return to your home state where it is not legal. So, according to this logic, if you go to WA and smoke some dope which is perfectly legal, then return to say Montana where afaik it is not legal, you could be exposed to prosecution (in these cases, disguised Texas-style as civil suit) — even though you did nothing within Montana boundaries that was illegal in Montana, and you did nothing within Washington boundaries that is illegal in WA.
Similarly, should gamblers who travel to Vegas or Reno promptly be prosecuted or sued on their return to, say, Oregon or California where gambling is only legal on indigenous lands? And come to think of it, if you gamble on indigenous lands then return to settler territory, should you be prosecuted or sued for having done something that would have been illegal had you done it on settler territory?
This is an incredibly audacious, radical re-interpretation of states’ rights, jurisdictions, boundaries, etc. — and opens the door to all kinds of legislative overreach. There are several theocratic ethnostates in the world whose expats cannot safely return to their native land because they would be arrested and punished for activities they pursued perfectly legally while abroad (such as being gay, getting divorced, publishing “heretical” works, etc) — and these legislators seem to think that’s a great model to imitate.
The basic idea here, and the reason I think we should be alarmed, is that the states of Missouri and Idaho are asserting a similar kind of ownership over their residents. These new-fangled laws are saying, more or less, that the state government’s writ runs wherever its residents happen to be, and does not stop at its borders; if you are a Missouri resident and you violate Missouri law while you are someplace else doing something legal in that other place, then Missouri considers you to be a criminal and will go after you when you return home. Missouri is saying that its writ runs nationwide, in other words, and the laws of other states simply don’t count.
The rightwing States’ Rights zealots have finally come full circle, and are asserting States’ Rights so aggressive and arrogant that they actually impinge on and diminish the rights of other states. Or so it seems to me.