April 28, 2023 | Reading Time: 4 minutes
No, red states are not becoming ‘laboratories of autocracy’
They already were. The key is containing them.
Since about 2016, a sort of cottage industry has emerged to soothe the nerves of respectable white people, telling them that they’re sooooo right. Democracy may be backsliding into a pit of autocratic despair, but that’s not because America is bad. America is a beacon of hope around the world!
Springing from this, as I see it, are missives of the kind I read recently in The Atlantic, in which the writer, who should know better, pretends that he does not know better before saying “red states” controlled by the Republican Party are becoming “laboratories of autocracy.”
This is how Brian Klaas, of the London School of Economics, begins his piece: “In 1932, Supreme Court Justice Louis Brandeis applauded the role of experimentation within the states, calling them ‘laboratories of democracy’ that could inspire reforms at the national level.”
“Today,” he said, “that dynamic is inverted, as some red states have become laboratories of autocracy, experimenting with the autocratic playbook in ways that could filter up to the federal government. American states are now splintering, not just on partisan lines, but on their commitment to the principles of liberal democracy.”
It’s not that he’s wrong. Red states are experimenting with autocracy. Klaas demonstrates by citing numerous examples – from the policing of “abortion traffickers” in Montana to extreme gerrymandering in North Carolina, from voter suppression tactics in Georgia to expelling Democratic reformers, who’d raised hell, from Tennessee state House.
No one should deny these things, but neither should anyone see them as a result of “red states” becoming laboratories of autocracy. As for their “splintering … on their commitment to the principles of liberal democracy”? This America has never existed. The view here is from 30,000 feet in the air. A better view would be closer to the ground.
The ex-slaver states of the former Confederate States of America, and the regions that have aligned with them, have always been autocratic. They will always be autocratic. The question isn’t whether they are. The question is how they express themselves. The key, for the real “laboratories of democracy,” and hence for America’s global image as a beacon of hope, is whether such expressions can be contained.
It was largely contained by the last quarter of the last century, but not before then. This may come as a shock (we take the Bill of Rights for granted), but there was a time in our history when the Bill of Rights applied only to the federal government. It did not apply to the states.
Under ideal conditions, and there were many ways of manufacturing them, a state could and did crush civil rights and individual liberties. If a state wanted to outlaw sodomy, it did. If it wanted to regulate worship, it did. If it wanted to prevent undesirables from voting, it did.
There were ways of pushing back and complicating “ideal conditions,” but they did not include torts against state governments for violating constitutional rights, because such appeals were not recognized.
Containment (my word) of these autocratic laboratories accelerated after the US Supreme Court, in the late 1930s, accelerated a process known among legal scholars as “selective incorporation.” In plain English, that’s the process of reading the Bill of Rights through the lens of the 14th Amendment’s due process clause, in effect nationalizing them, so they applied to the states as well as the federal government.
Some rights were never incorporated and probably never will be on account of the current Supreme Court, and its rightwing supermajority, reversing this century-old orientation toward nationalizing civil rights.
I’m no legal scholar, but that reversal seems to have become clear with the overturning of Roe. That triggered the invalidation of not only the right to abortion but the right against the infringement of privacy by state governments. With those rights now gone at the national level, red states are free to return to their natural states of autocracy.
Republican legislators are now passing laws creating potential for accessing virtually anything, privacy be damned. Kansas recently enacted a statute paving the way for grotesque intrusions. It requires the inspection of genitals to block “men” (trans women) from competing in the “wrong” sport (and from using the “wrong” bathroom).
These experiments project beyond state borders. “Many red states have already considered bills to restrict travel for abortion care,” wrote Lindsay Beyerstein. “Last year, an antiabortion legislator in Missouri tried to criminalize aiding and abetting an abortion outside the state.”
This is why “contained” is the right word. Just as the US government tried to “contain” the spread of Soviet Communism, during the post-World War II era, so too must real “laboratories of democracy” try to contain the spread of native autocracy. (Let’s hope for better success.)
Again, Klaas isn’t wrong. Some state governments dominated by the Republicans are experimenting with autocracy. But what they are experimenting with is not a matter of kind. They always were already authoritarian. What they are experimenting with is a matter of degree.
How much autocracy are they willing to express? In the last quarter of the last century, when the Supreme Court effectively contained autocracy, the ex-slaver states of the former Confederate States of America, and the regions that aligned with them, expressed less of it.
But now that a rightwing supermajority has begun reversing “selective incorporation,” we are seeing these states and allies expressing violent spasms of autocracy, as if supported by the court, which they are.
I don’t have a problem with clinging to the idea of America being a beacon of hope around the world. But let’s concede to the hard reality of that belief. We are not a united country. Parts of us don’t believe in liberty. Parts of us are compelled to make some of us suffer.
To the extent that we are a beacon, and we are, it’s because America’s real “laboratories of democracy” – the ex-free labor states, say – believe governments ought to maximize opportunity and minimize suffering.
John Stoehr is the editor of the Editorial Board. He writes the daily edition. Find him @johnastoehr.