A review of Progressive States’ Rights: The Forgotten History of Federalism (University Press of Kansas 2024) by Sean Beienburg
In The Future of the Past C. Vann Woodward wrote: “Serious history is the critique of myths…”[1]. Practicing history requires honesty and research integrity. Until roughly the 1960s and 1970s, historians and political researchers were able to look at the issue of American federalism objectively without succumbing to blatant or excessive ideologization. At that time, works were valued for avoiding unambiguity in judgments or assessments. However, this changed with the growing problem of identity politics and the West’s “self-flagellation” for its past sins or as French writer Pascal Bruckner called it “tyranny of guilt”. At present, it seems that works of this type are dominated mainly by a single narrative that does not allow for alternatives or even revision. Western civilization is plagued by a permanent sense of guilt, which gives rise to bad ideas.
In the case of the Civil War and the Reconstruction period, many academic centers are dominated by the neo-abolitionist narrative, whose fundamental technical error is an ignorant and arrogant reductionism in explaining complex phenomena. This reductionism also affects analyses of American federalism. Neo-abolitionist historians have been consistently arguing for decades that the states’ rights doctrine has never been about anything other than defending slavery and racial segregation. This untruth has become so ingrained in the official discourse of historical and political science that there are few significant works or studies in the academic mainstream that address this issue by justifying it with a broader perspective and historical evidence. As Richard Kreitner notes: “When Americans think of Secession, we think of the South, the Confederacy, slavery”[2]. By identifying state’s rights with the slave-holders, this narrative can easily support an overgrown federal government. The issue, posed in this way, does not require a substantive discussion, which is why nationalists like Rich Lowry can triumphantly say: “They finally lost.”[3] For these people, the entire Southern constitutional tradition of states sovereignty suddenly evaporates from the pages of American history.
In recent years, however, some changes seem to have been brought as well as a breakthrough that to some extent can be considered as hope, a promising light in this dark tunnel of modernity. Every now and then, works appear whose authors, for various reasons and motives, are able to effectively and subtly, although often cautiously, undermine the “rotten compromise” that is in force in historical and political sciences. In this field, in the issue that interests us, a renaissance of the idea of states’ rights is noticeable. Recently, several significant works have been written on this topic. However, this renaissance undoubtedly has its causes in the current political situation in the United States. Polarization seems to be reaching its apogee, and it makes it necessary to also revise previous positions and consensuses, which are already losing their significance due to the changes taking place. Research works of this kind are beginning to break through to the academic establishment, which proves that even the most condemned ideas and concepts can return as completely rehabilitated, justified and becoming the only remedy for the existing, raging crisis.
Among the academic works that have recently appeared, very interesting in last year is the work by Sean Beienburg Progressive States’ Rights: The Forgotten History of Federalism. As the title suggests, Beienburg tries to present federalism from a Progressive Era perspective. He shows how federalism favored progressive social ideas and solutions, and did not – as the modern leftist discourse has claimed so far – always defend the conservative status quo and privileged elites.
Beienburg’s work is divided into six chapters, and he rightly states that: “The role of state intervention in antebellum constitutional politics has been widely studied, but we know far less about state clashes with the federal government afterward”[4]. Therefore, there is a need to undertake research on situations that occurred later. Beienburg indicates that research on the period preceding, for example, the New Deal seems to be very important.
Beienburg puts forward three fundamental theses in his work. The first is that federalism and states’ rights are not a doctrine unique only to the South. The second is that extrajudicial constitutional theories, or so-called popular constitutionalism, should be taken seriously in American constitutionalism, and the third is that state pluralism allows certain political positions to persist even in the face of politically defeated competition for dominance in the Union. The thesis that the Northern states used means of resistance to federal power is not at all groundbreaking, because it is enough to mention the reaction to the Fugitive Slave Act, the interpretation of the law surrounding the Dred Scott Case, or political activism of the New England secessionists. Examples of nullification and resistance to unconstitutional federal solutions in the Yankee states are well documented.
Beienburg’s fundamental thesis, which in my opinion it’s very intriguing for us, is to point out that certain historical periods brought a much greater emphasis on this resistance in the North than in the Southern states. To support his thesis, Beienburg cites arguments related to the approval of the Sheppard-Towner Maternity and Infancy Protection Act of 1921. Beienburg points out that some states accepted these solutions without hesitation, some needed time to make a decision, and some rejected them without further reflection. Of course, it seems that Beienburg, with his rather assessment of the South, does not pay attention to the painful results for the South after the war and politically turbulent period of Reconstruction. Although Sheppard-Towner Act is considered by many analysts and economists to be the beginning of the welfare state. In The Progressive Era libertarian giant Murray N. Rothbard explained the nature of this federal act as follows: “After World War I, Lathrop and the Children’s Bureau lobbied for, and pushed through Congress in late 1921, the Sheppard-Towner Maternity and Infancy Protection Act, providing federal funds to states that set up child hygiene or child welfare bureaus, as well as providing public instruction in maternal and infant care by nurses and physicians. Here we had the beginnings of socialized medicine as well as the socialized family. This public instruction was provided in home conferences and health centers, and to health care professionals in each area. It was also chillingly provided that these states, under the carrot of federal subsidy, would remove children from the homes of parents providing “inadequate home care,” the standard of adequacy to be determined, of course, by the government and its alleged professionals. There was also to be compulsory birth registration for every baby and federal aid for maternity and infancy”[5].
Beienburg notes that the problem concerned the issue of granted federal subsidies, the receipt of which resulted in a kind of contract between the state and the federal government. In other words, the states received federal funds, but in return they were obliged to spend their own funds in accordance with the indication of the federal government. This procedure is referred to as cooperative federalism. In this way, Washington establishment made the states politically dependent in the key decisions, and the proposal itself was described by some as a form of bribery. The opposition of some states was therefore supposed to result from the conviction that in matters of health care, the states would be deprived of their independence in decision-making and method of spending. The Sheppard-Towner Act was accepted by most states after only a year, so it’s hard to argue with the validity of using the states’ rights concept. Beineburg therefore believes that the ongoing debate on the constitutionality of these solutions is one of the most important discussions on the relationship between the states and the federal government that appeared in the period between Reconstruction and the New Deal.
The second issue in Beienburg’s book was the resistance of states to federal government in adopting a minimum wage. Here Beienburg points to the examples of West Coast states such as California, Oregon and Washington.
Beienburg’s book is not flawless. The main weaknesses, in my opinion, include a rather stereotypical approach to the issue of the South and the omission of all other aspects of the southern state’s rights actions. Because the South, led by Calhoun, is presented as a boogeyman, Beienburg focuses on a practice of states’ rights that completely ignores Calhoun’s legacy. Beienburg suggests that progressive states’ rights solutions operate in such a way that they do not need to invoke or use Calhoun’s political thought. He argues that Calhoun’s actions were destabilizing and actually contributed to the erosion of state’s rights after the Civil War. This seems like an unfair way to put it, especially when we know the temperature of the political dispute Calhoun was operating in. And how much the sectional dispute was highlighted at the time. Although Beienburg notices that the South once played a key role in defending states’ rights, but he also ignores Calhoun’s attemps to reach a compromise in the Union. At times one might even get the impression that Beienburg would like to steal the states’ rights doctrine from the “bad” South and attach it solely to the “good” Yankee states. And of course he forgot about Virginia constitutionalism as a source. But maybe it’s just false impression from reading, after all, this is not a book about the South. However, it is impossible to remain indifferent to these simplifications about the South. In my opinion, Beienburg’s work just basically shows progressives joining the alliance of states’ rights conservatives. And conservatives were the backbone of states’ rights and that shouldn’t be overlooked.
Nevertheless, it should be recognized that the mere indication that federalism and states’ rights were more than just a tool for elites to defend their privileges is already a good thing. The claim that they are an important and significant part of the political history of the American republic should be read as an undoubted asset of this work. Beienburg’s publication seems to be relevant also for another reason. Donald Trump’s election victory is a certain reference point. It will be a test for those states governed by the progressive wing of Democratic Party. The governor of California for example, upon hearing of Trump’s success, very quickly announced on social media (on X) that “California is ready to fight”, and federalism, as he added, “is the cornerstone of our democracy. It’s the United STATES of America”. Unbelievable! Paradoxically, one must admit that there is something satisfying in observing how the Left that governs or dominates in some states, in trying to defend itself against the administration of Donald Trump, reaches for the instruments of resistance to federal power that it has hated so far and so much.
Trump’s time may be the time when the Left will begin to rediscover the true history of America! And although Beienburg’s conclusions are not free from simplifications and prejudices against the traditions of the South, they allow us to hope that properly understood American federalism is the source of the political system, the heart of America, for all sides of this political dispute. This would also confirm the second thesis of Beienburg’s work about maintaining balance and equilibrium within the country. The losing side still has the opportunity to regain power at the national level in the next or subsequent elections. But as the Dean of Southern historians Clyde N. Wilson once wrote: “the cause of states’ rights is the cause of liberty. They rise or fall together.”[6] Beienburg’s conclusions about the future of federalism seem to be correct and they force some reflection. Trump’s presidency will certainly show us all in which direction American politics will head. Beienburg considers two scenarios here: Will we experience consolidation and the growth of nationalism (arguments of this type have been pushed in recent years by intellectuals like Yoram Hazony and Rich Lowry), which, as Beienburg fearfully points out, will ultimately cause the collapse of federalism and the modern “conservative movement” will follow again the path of the New Deal and Roosevelt Era. Or, as Beienburg suggests, will federalism “become a unifying détente, much as it was did in the 1920s”[7]? Beienburg does not provide a third solution, which cannot be ignored, i.e. the secession of one or more of the states. Beienburg does not seem to allow for this possibility. Nevertheless, it should be taken into account in the forecasts, because public opinion polls confirm sympathies with secession and as F.H. Buckley has already noted: “the barriers to secession are weak, the case for breakup is strong[8].
Regardless of the outcome, states’ rights are not a relic of the past that should be eradicated from political and parliamentary practice because of some past moral errors. If federalism still means anything in America, it will become apparent again. Perhaps, the time is coming when leftist political movements will start taking advantage of the states’ rights doctrine. And Trump, willingly or unwillingly, as a Hamiltonian or Lincolnian nationalist, will become a catalyst for the resurrection of this political tradition in all over America. That is why Beienburg’s work in conclusion is worth recommending. Even though it is difficult to agree with some Beienburg’s reflections, it is worth reading this book.
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[1] C. Vann Woodward, The Future of The Past, Oxford University Press, New York-Oxford 1989, p.278.
[2] R. Kreitner, Break It Up: Secession, Division and the Secret History of America’s Imperfect Union, Little Brown and Company, New York-Boston-London 2020, p. 121.
[3] R. Lowry, The Case For Nationalism. How It Made Us Powerful, United and Free, Broadside Books 2019, p. 176.
[4] S. Beienburg, Progressive States Rights. The Forgotten History of Federalism, University Press of Kansas 2024, p. 5.
[5] M.N. Rothbard, The Progressive Era, Mises Institute, Alabama 2017, p. 343.
[6] C.N. Wilson, Secession: The Last, Best Bulwark of Our Liberties, [in:] D. Gordon (ed.), Secession, States & Liberty, Routledge Taylor and Francis Group, London New York 1998, p. 89.
[7] S. Beienburg, op.cit., p. 230.
[8] F.H. Buckley, American Secession: The Looming Threat of a National Breakup, Encounter Book, New York-London 2020, p. 131.
The same oppressive fedgov can give you the covidscam, the IRS, the federal reserve, DIE scam…it can demand forced integration and systematically destroy tens of thousands of small black businesses in less than a generation. Small black businesses that had THRIVED during segregation…White Southern Males didn’t destroy small black businesses and the black family…that chore was left to the Dim party.