The Question of States' Rights: The Constitution and American Federalism (An Introduction)


The question of how power should be divided between the federal government and the states is really what American politics has been all about for well over two centuries.  It is a question debated by delegates to the Constitutional Convention in Philadelphia in 1787, debated by Federalists and Anti-Federalists during the ratification period, and debated between and within our political parties ever since.  Elections have been won and lost on this question, and a Civil War fought over it.

The Constitutional Convention undoubtedly was called to broaden the powers of the federal government as they existed under hopelessly ineffective Articles of Confederation.  Yet, there was considerable disagreement among the delegates as to how extensive the powers of the federal government should be.  The document produced in Philadelphia in September of 1787 reflects numerous compromises on the question of the rights of states and the powers of the new federal government.  While the sovereignty of states was preserved in most respects, specific provisions were included limiting their powers (States were deprived of the powers to, for example, "impair the obligations of contracts," enact ex post facto laws, or pass bills of attainder).  Most significantly, however, the Constitution in Article VI ("The Supremacy Clause") made any valid exercise of federal law (and the Constitution enumerated a long list of federal powers, including the broad power to regulate commerce) superior to any state law "to the contrary." 

The Anti-Federalists opposed ratification of the Constitution.  Their principal argument was that the Constitution gave too much power to the federal government and took away too many powers of the states.  They complained about the Supremacy Clause, about the powers of the President, about the six-year terms of Senators, and about the many new powers granted to Congress.  Arguing for ratification were the Federalists, including such prominent figures as Alexander Hamilton, John Jay, and James Madison (authors of The Federalist Papers).  The Federalists saw the states as impeding the development of commerce (through imposition of state tariffs and other laws) and threatening private property (Rhode Island, for example, had enacted a law cancelling all debts).  The Federalists saw a stronger federal government as critical to the United States taking its place as a leader on the world's stage.  As a compromise necessary to ensure ratification, Federalists agreed to propose a Bill of Rights that would specifically limit the powers of the new federal government and would, through the Tenth Amendment, recognize that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

During the presidency of George Washington, the issue of the rights of states moved front and center after the Supreme Court announced its opinion in Chisholm v Georgia (1793), holding that states can be sued in federal court for damages by citizens another state.  The legislature of Georgia was so angered by the Court's decision that it passed a resolution declaring that anyone who tried to enforce it would be "hanged without the benefit of clergy."  State officials in Georgia were not the only persons shocked by the Chisholm decision, and the result the 11th Amendment, effectively overruling the Court's opinion and limiting the power of the federal courts to hear such suits in the future.  (The 11th Amendment has been more broadly interpreted later on to prohibit suits against states for damages in federal court even by the state's own citizens.)

The cause of the rights of states had its champions in the first decades of the nineteenth century, including Thomas Jefferson and Andrew Jackson, among many others.  So did the cause of building a strong national government, with its champions including John Adams and the chief justice he appointed, John Marshall.  Chief Justice Marshall's views were reflected in several important Court decisions broadly interpreting the powers of Congress under the "Necessary and Proper Clause" (McCulloch v Maryland (1819), upholding the power of Congress to create a national bank) and Gibbons v Ogden (1824), and upholding the power of Congress under the Commerce Clause to regulate steamboat traffic between the states.

The Civil War, of course, was fought over the question of whether states should have the right to protect the institution of slavery.  After that war, the ratification of the 14th Amendment imposed important restrictions on the rights of states to regulate the lives of persons within its jurisdiction.  During the course of the twentieth and on into the twenty-first centuries, the Court turned again and again to the 14th Amendment (largely through its doctrine that applied--or "incorporated"--the Bill of Rights to the states) to overturn state laws restricting the rights of speakers, criminal defendants, private property owners, gun owners, members of racial and ethnic minorities, and others.

The Court has found in the Constitution other limitations on states as well.  Most significantly, it has interpreted the Commerce Clause not just to be a positive grant of power to Congress, but also to be a limitation on the power of states to regulate interstate commerce in particularly burdensome ways.

The cause of states' rights has risen and fallen over the years.  Generally, in eras of conservative Courts states have been given wide latitude to exercise their choices (see Dred Scott v Sandford, for an extreme example).  Recently, the Court has recognized limits on the powers of Congress under the Commerce Clause, given fresh meaning to the 10th Amendment, and expanded the doctrine of state sovereign immunity under the 11th Amendment. 

Typically today, cases that pit the rights of states against the power of the federal government will be decided by a closely divided Supreme Court.  The exception is often in cases applying the Supremacy Clause (preemption doctrine) where views on the merits of the federal law seem to influence votes as much as do any overarching views of how the preemption doctrine should be applied.

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 Politics, the Supreme Court, and Federalism
Few would deny that the political values of justices, as well as theories of constitutional interpretation, play a role in their decisions in specific cases.  The conservative wing of the Court, for example,  generally favors a restrictive interpretation of the federal commerce power (and therefore a broad view of states' rights), favors an expansive interpretation of the 10th and 11th Amendments,  and typically has a narrower view of how the 14th Amendment limits choices available to states (except for favored individual rights, such as the right to bear arms).
Five members of the current Supreme Court were appointed by Republican presidents.  Four justices were nominated by a Democratic president.
MOST LIKELY TO RESTRICT THE EXERCISE OF FEDERAL POWER AND SUPPORT "STATES' RIGHTS": Justice Thomas (most likely of all!), Justice Kennedy, Justice Scalia, Justice Alito
SWING JUSTICE (somewhat more likely to exercise judicial restraint and uphold the exercise of federal power, but sympathetic to states' rights claims): Chief Justice Roberts

Provisions in Constitution Concerning States' Rights
Key Provisions Specifically Recognizing Rights of States

Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. 

Amendment XI (1795)
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Article V
The Congress,...on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which...shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress....

Key Provisions Interpreted to Limit the Powers of States

Article. VI.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Article I, Section. 8 ("Dormant Commerce Clause"):
The Congress shall have Power...To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

Article I, Section. 8 ("Necessary and Proper Clause"):
The Congress shall have Power...To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Article I, Section. 10.
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports....,

 No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Amendment XIV (1868)
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

State Rights Banner ("Don't Tread on Me")(circa 1860)

Selected Cases on the Division of Powers
 Between the Federal and State Government

McCulloch vs Maryland (1819)
(Necessary and Proper Clause)

Gibbons vs Ogden (1824)
(Federal Commerce Power)

Dred Scott v Sandford (1857)
(Power of Federal Gov't to Regulate Slavery)
Hammer vs Dagenhart (1918)
(Power of Fed'l Gov't to Regulate Child Labor)

Wickard vs Filburn (1942)
(Reach of Federal Commerce Power)
Brown v. Board of Education of Topeka (1954)
(Right of States to Operate Segregated Schools)

Garcia v San Antonio Metro. Transit Auth. (1985)
(Meaning of 10th Amendment)
New York v United States (1992)
(Meaning of 10th Amendment)
U. S. vs Lopez (1995)
  (Reach of Federal Commerce Power)
Printz v United States (1997)
(Meaning of 10th Amendment)
Granholm v Heald/ Swedenburg v Kelly (2005)
(Right of States to Regulate Commerce in Alcoholic Beverages)
Gonzales v Oregon (2006)
Shelby County v Holder (2013)
(10th Amendment and "Equal Sovereignty Principle")

1. Which of the following regulatory concerns is best handled by state governments, and which better handled by the federal government? : State or federal power?
2.  What are the arguments for assigning a particular power to either the federal or state government?  [See state vs federal powers.]
. What values might cause a judge to believe one or another branch of the federal government should have more power?  What values might cause a judge to believe that states should have a larger role in our federal system?  What values might cause a judge to believe that state powers should not be enlarged at the expense of  federal power?
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