While North Carolina’s House Bill 2 has generated national controversy over the past month, more recent movements by the government suggest an attempt to change the terms of that debate. HB2 originally drew fire from the LGBTQ community and the political left due to the mandate that all citizens use the bathroom of their biological sex. Many have protested this bill as a violation of transgender civil rights. Others have called attention to the way the bill was hurried into law as part of a political game to out-maneuver Republican Gov. Pat McCrory’s Democratic rival in November.
However, now McCrory and the state Department of Public Safety secretary are suing the federal justice department in response to what they call “a baseless and blatant overreach.” Last week, the Justice Department informed McCrory that the act violates Title VII of the Civil Rights Act and could result in the loss of federal dollars. State Republicans are trying to prevent action by the Justice Department by taking Attorney General Loretta Lynch to court.
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More subtly, this action by state Republicans could change the public dialogue from one about civil rights to one over federalism – a powerful federal government, the executive branch in particular, overriding the laws of states and stepping into the private concerns of North Carolinians.
Such an attempt to change the dialogue from civil rights to states’ rights is nothing new for Southern conservatives. The question of whether the American Civil War was fought over slavery or states’ rights is one that continues to fire up the general public, though historians have long reached a consensus that the states’ right white Southerners wished to protect was slavery, and that without slavery there would have been no war.
When white Southerners declared their separation from the United States, they were clear that the issue was which individuals had the right to life, liberty and pursuit or happiness (whites) and which ones did not (blacks). The Mississippi secession ordinance begins, “Our position is thoroughly identified with the institution of slavery – the greatest material interest of the world.” In a famous speech, Vice President of the Confederacy Alexander Stephens called slavery the “cornerstone” of the Confederate government. Only after the war did Stephens and other political spokepersons for the white South begin to argue that the Southern cause had been one of states’ rights against centralizing power.
During Reconstruction, the war’s 12-year aftermath, reactionary white leaders engaged in a similar case of political misdirection. Nowhere was this clearer than in North Carolina. Elite conservatives had attempted to rally whites together against extending civil and political rights to the newly freed African-Americans. North Carolina’s poor and middle class whites, however, frequently saw their interests at odds with those of elites and were not entirely opposed to making common ground with the freed people.
This state of tension shifted dramatically when the progressive Reconstruction governor of North Carolina, William Woods Holden, used state militia to suppress the activities of the Ku Klux Klan in 1870. Ordinary citizens, though they shared Holden’s hatred of the conservative elite, took Holden’s use of military force and martial law as a case of tyrannical power. Elites capitalized on ordinary folks’ distrust of the federal government to rally opposition to Reconstruction, not solely on the grounds of white supremacy, but also on the grounds of federalism. The federal government, they argued, sought to dictate the social lives of ordinary North Carolinians.
This historical context may help us to understand the continuing battle over HB2 as North Carolina Republicans bring it to a new stage. North Carolina’s reputation has been damaged across the nation while the debate has been one of civil rights. If the debate instead becomes one over federalism – the state’s right to legislate vs. the federal government’s power to override states – then Republicans may find firmer ground to stand on, at least when it comes to the state election in November.
While Democrats will continue to accuse Republicans of violating transgender civil rights, Republicans will likely tell North Carolinians that the federal government’s response to HB2 is part of a larger fight over the size of government. Will North Carolina’s voters remember what the fight over state and federal authority was really about to begin with? Will it be said that HB2 was merely a matter of states’ rights?
Brian K. Fennessy is a Ph.D. candidate in the history department at the University of North Carolina at Chapel Hill.