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Given the US’s current dominance as a nation, and its exceptionally healthy self-image, it’s a bit of a surprise to read (if one does a bit of digging) that initially the whole exercise was a total disaster.

The articles of confederation between the 13 initial states were an astonishingly loose arrangement, under which every state essentially ran itself independently. The result was that within a short period they were all bankrupt, in a deep economic depression and weird revolts (like the Shay Revolt in Massachusetts) had to be put down by force.

Everything was such an obvious failure that Alexander Hamilton held the Philadelphia Constitutional Convention in 1787, during which everyone agreed that the Articles of Confederation were a terrible idea and scrapped them in favour of a model where the federal government had greater powers to rein in the local big wig (they actually did wear wigs then) — rich people who dominated individual state politics making short-term, self-serving political decisions that had led to the fiasco they then found themselves in.

Three branches of government (one being the US Supreme Court) were entrusted with this job, but the fundamental idea was that of the “supremacy clause”, which meant when there was a clash between state law and federal law, the latter took precedence. Ever since that period there have been clashes between the states and the federal government, with states shouting about “states’ rights”, often while wearing funny hats and holding posters bearing offensive slogans.

The reason for this seems to be that because they were relatively small, the individual states soon came under the control of local oligarchs who were quite keen on two things: 1) paying virtually no tax; 2) treating other people as badly as they wanted to. This is why the main causes of conflict around state’s rights have always been federal income tax, and the way women and people of colour are treated.

One of the unlovely cause defended in the name of “states’ rights” was obviously slavery. Southern plantation owners fought (literally) to the last bullet and dead 17 year-old to defend this institution, taking the union to the edge of collapse in the process. The other huge “states’ rights” dispute was around segregation, where the Kennedy federal government integrated schools by force while state governments resisted (Alabama governor George Wallace personally barricaded the entrance to a local school with his [bulky] person when federal troops tried to open its doors to black children.

Fun Fact: there was briefly a party in the US called the States’ Rights Party. It was formed after World War 2 war when Eisenhower desegrated the military, and its sole purpose was to fight the desegregation of the south and the civil rights movement.

While there have been other points of conflict between state governments and the federal government (for example on whether states have the right to dump nuclear waste into their water) the chief one recently is that of abortion. Using the US bill of rights and constitution, the federal view was that the state restrictions on abortion conflicted with individual rights. As we sadly know far too well, this resulted in the Roe v Wade (Mr Wade was the Texas attorney-general) ruling that protected women's’ right to abortion.

The recent ruling by the Supreme Court can be deceptive, because it hasn't actually ruled in favour of abortion, but of each state’s ability to pass laws governing how and what a woman does with her body. Thus the whole hideous fiasco is once again parked in the dumpster of “states’ rights”. Which suggests that perhaps we should throw the phrase “states’ rights” into the dustbin, where the US Supreme Court has thrown the right of a teenager who has been sexually assaulted to have a termination.

“States’ rights” really just means the right of power brokers within individual states to be racist, sexist, make tons of money, pay no tax, treat poor people badly and impose their own weird religious views on other people — while (obviously) flying their daughter to another state for a termination should there be an accident with Chad the quarterback whose dad is (like oneself) kind of in charge of everything.

Those are the rights that the current US Supreme Court is championing.

• Davenport, a former chief creative officer at Havas Southern Africa and war correspondent in Ukraine, is currently based in Hong Kong.


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