States' rights

This article is about the concept of "states' rights" in U.S. law and politics. For the Ronald Reagan speech, see States' rights (speech). For the States' Rights Democratic Party, see Dixiecrat.

States' rights in U.S. politics refers to the political powers that U.S. states possess in relation to the federal government, as guaranteed by the Tenth Amendment of the Bill of Rights.

Background

The balance of federal powers and those powers held by the states as defined in the Supremacy Clause of the U.S. Constitution was first addressed in the case of McCulloch v. Maryland (1819). Chief Justice John Marshall asserted that the laws adopted by the federal government, when exercising its constitutional powers, are generally paramount over any conflicting laws adopted by state governments. After McCulloch, the primary legal issues in this area concerned the scope of Congress' constitutional powers, and whether the states possess certain powers to the exclusion of the federal government, even if the Constitution does not explicitly limit them to the States.

Controversy to 1865

In the period between the American Revolution and the ratification of the United States Constitution, the states had united under a much weaker federal government, pursuant to the Articles of Confederation. The Articles gave the central government very little, if any, authority to overrule individual state actions. The Constitution subsequently strengthened the central government, authorizing it to exercise powers deemed necessary to exercise its authority, with an ambiguous boundary between the two co-existing levels of government. In the event of any conflict between state and federal law, the Constitution resolved the conflict via the Supremacy Clause of Article VI in favor of the federal government, which declares federal law the "supreme Law of the Land" and provides that "the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." However, the Supremacy Clause only applies if the federal government is acting in pursuit of its constitutionally authorized powers.

Alien and Sedition Acts

When the Federalists passed the Alien and Sedition Acts in 1798, Thomas Jefferson and James Madison secretly wrote the Kentucky and Virginia Resolutions, which provide a classic statement in support of states' rights. According to this theory, the federal Union is a voluntary association of states, and if the central government goes too far each state has the right to nullify that law. As Jefferson said in the Kentucky Resolutions:

Resolved, that the several States composing the United States of America, are not united on the principle of unlimited submission to their general government; but that by compact under the style and title of a Constitution for the United States and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: That to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party....each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

The Kentucky and Virginia Resolutions, along with the supporting Report of 1800 by Madison, became final documents of Jefferson's Democratic-Republican Party. The most vociferous supporters of states' rights, such as John Randolph of Roanoke, were called "Old Republicans" into the 1820s and 1830s.

Another states' rights dispute occurred over the War of 1812. At the Hartford Convention, New England states voiced opposition to President James Madison and the war, and discussed secession from the Union.

Nullification Crisis of 1832

One major and continuous strain on the union, from roughly 1820 through the Civil War, was the issue of trade and tariffs. Heavily dependent upon trade, the almost entirely agricultural and export-oriented South imported most of its manufactured goods from Europe or obtained them from the North. The North, by contrast, had a growing domestic industrial economy that viewed foreign trade as competition. Trade barriers, especially protective tariffs, were viewed as harmful to the Southern economy, which depended on exports.

In 1828, the Congress passed protective tariffs to benefit trade in the northern states, but that were detrimental to the South. Southerners vocally expressed their tariff opposition in documents such as the South Carolina Exposition and Protest in 1828, written in response to the "Tariff of Abominations." Exposition and Protest was the work of South Carolina senator and former vice president John C. Calhoun, formerly an advocate of protective tariffs and internal improvements at federal expense.

South Carolina's Nullification Ordinance declared both the tariff of 1828 and the 1832 null and void within the state borders of South Carolina. This action initiated the Nullification Crisis. Passed by a state convention on November 24, 1832, it led, on December 10, to President Andrew Jackson's proclamation against South Carolina, which sent a naval flotilla and a threat of sending federal troops to enforce the tariffs.

Civil War

Over the following decades, another central dispute over states' rights moved to the forefront. The issue of slavery polarized the union, with the Jeffersonian principles often being used by both sides—anti-slavery Northerners, and Southern slaveholders and secessionists—in debates that ultimately led to the American Civil War. Supporters of slavery often argued that one of the rights of the states was the protection of slave property wherever it went, a position endorsed by the U.S. Supreme Court in the 1857 Dred Scott decision. In contrast, opponents of slavery argued that the non-slave-states' rights were violated both by that decision and by the Fugitive Slave Law of 1850. Exactly which—and whose—states' rights were the casus belli in the Civil War remain in controversy.

Southern arguments

Jefferson Davis used the following argument in favor of the equal rights of states:

Resolved, That the union of these States rests on the equality of rights and privileges among its members, and that it is especially the duty of the Senate, which represents the States in their sovereign capacity, to resist all attempts to discriminate either in relation to person or property, so as, in the Territories—which are the common possession of the United States—to give advantages to the citizens of one State which are not equally secured to those of every other State.

The Preamble to the Confederate States Constitution begins: "We, the people of the Confederate States, each State acting in its sovereign and independent character..."

Northern arguments

The historian James McPherson noted that Southerners were inconsistent on the states' rights issue, and that Northern states tried to protect the rights of their states against the South during the Gag Rule and fugitive slave law controversies.

The historian William H. Freehling noted that the South's argument for a states' rights to secede was different from Thomas Jefferson's, in that Jefferson based such a right on the unalienable equal rights of man. The South's version of such a right was modified to be consistent with slavery, and with the South's blend of democracy and authoritarianism.

Various historians and commentators, including Adams, Sinha, and Richards, among others, are of the opinion that the States' Rights argument made by supporters of the Confederacy was in fact a thinly disguised justification of continued slavery in the southern states, and/or moves by the Southern states to violate the states' rights of Northern states.

Historian Henry Brooks Adams explains that the anti-slavery North took a consistent and principled stand on states' rights against Federal encroachment throughout its history, while the Southern states, whenever they saw an opportunity to expand slavery and the reach of the slave power, often conveniently forgot the principle of states' rights—and fought in favor of Federal centralization:

Between the slave power and states' rights there was no necessary connection. The slave power, when in control, was a centralizing influence, and all the most considerable encroachments on states' rights were its acts. The acquisition and admission of Louisiana; the Embargo; the War of 1812; the annexation of Texas "by joint resolution" [rather than treaty]; the war with Mexico, declared by the mere announcement of President Polk; the Fugitive Slave Law; the Dred Scott decision — all triumphs of the slave power — did far more than either tariffs or internal improvements, which in their origin were also southern measures, to destroy the very memory of states' rights as they existed in 1789. Whenever a question arose of extending or protecting slavery, the slaveholders became friends of centralized power, and used that dangerous weapon with a kind of frenzy. Slavery in fact required centralization in order to maintain and protect itself, but it required to control the centralized machine; it needed despotic principles of government, but it needed them exclusively for its own use. Thus, in truth, states' rights were the protection of the free states, and as a matter of fact, during the domination of the slave power, Massachusetts appealed to this protecting principle as often and almost as loudly as South Carolina.

Sinha and Richards both argue that the states' rights that the Southern states claimed were actually:

• States' rights to engage in slavery;
• States' rights to suppress the freedom of speech of those opposed to slavery or its expansion, by seizing abolitionist literature from the mail;
• States' rights to violate the sovereignty of the non-slave States by sending slave-catchers into their territory to enforce the Fugitive Slave Law of 1850, to seize supposed runaway slaves by force of arms.
• States' rights to send armed Border Ruffians into the territories of the United States such as Kansas to engage in massive vote fraud and acts of violence; see Slave Power and Bleeding Kansas;
• States' rights to deem portions of their population "beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect", by means of the Dred Scott decision;
• States' rights to secede from the United States after an election whose result they disagreed with, the election in 1860 of Abraham Lincoln;
• States' rights to seize forts and arsenals of the United States following their purported secession; see Fort Sumter;

Historians, like contemporaries, have long noted that an overwhelming majority of South Carolinians were for secession. But a majority of South Carolinians had nothing to do with secession or the glorification of human bondage. A majority of South Carolinians in 1860 were slaves.

• States' rights to have a less democratic form of government; Sinha, in particular, argues this point, illustrating that the state of South Carolina, home of John Calhoun, the ideological godfather of the Slave Power, had a far less democratic order than the several other United States. Although all white male residents were allowed to vote, property restrictions for office holders were higher in South Carolina than in any other state. South Carolina had the only state legislature where slave owners had the majority of seats. It was the only state where the legislature elected the governor, all judges and state electors. The state's chief executive was a figurehead who had no authority to veto legislative law.
• States' rights to overturn the ideal expressed in the Declaration of Independence — that "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness".

Sinha and Richards both conclude their cases by arguing that the Civil War had nothing to do with "states' rights", democracy, or resistance to arbitrary power. They argue that it was instead the result of the increasing cognitive dissonance in the minds of Northerners and (some) Southern non-slaveowners between the ideals that the United States was founded upon and identified itself as standing for, as expressed in the Declaration of Independence, the Constitution of the United States, and the Bill of Rights, and the reality that the slave-power represented, as what they describe as an anti-democratic, counter-republican, oligarchic, despotic, authoritarian, if not totalitarian, movement for ownership of human beings as the personal chattels of the slaver. As this cognitive dissonance increased, the people of the Northern states, and the Northern states themselves, became increasingly inclined to resist the encroachments of the slave power upon their states' rights and encroachments of the slave power by and upon the Federal Government of the United States. The slave power, having failed to maintain its dominance of the Federal Government through democratic means, sought other means of maintaining its dominance of the Federal Government, by means of military aggression, by right of force and coercion, and thus, the Civil War occurred.

Since 1865

A series of Supreme Court decisions developed the state action constraint on the Equal Protection Clause. The state action theory weakened the effect of the Equal Protection Clause against state governments, in that the clause was held not to apply to unequal protection of the laws caused in part by complete lack of state action in specific cases, even if state actions in other instances form an overall pattern of segregation and other discrimination. The separate but equal theory further weakened the effect of the Equal Protection Clause against state governments.

In case law

With United States v. Cruikshank (1876), a case which arose out of the Colfax Massacre of blacks contesting the results of a Reconstruction era election, the Fourteenth Amendment was held by the Supreme Court not to have applied the First Amendment or Second Amendment to state governments in respect to their own citizens, only acts of the federal government.

United States v. Harris (1883) held that the Equal Protection Clause did not apply to an 1883 prison lynching since the Fourteenth Amendment applied only to states, not to individual criminal matters.

The Civil Rights Cases (1883) allowed segregation by striking down the Civil Rights Act of 1875, a statute that prohibited racial discrimination in public accommodations. There, the Supreme Court held that the Equal Protection Clause applied only to acts done by states, not to those done by private individuals; because the Civil Rights Act of 1875 applied to private establishments, the Court said, it exceeded congressional power under Section Five of the Fourteenth Amendment.

Plessy v. Ferguson (1896) held that the separate but equal doctrine complied with the Equal Protection Clause, and marked the beginning of Jim Crow laws by approving the de jure segregation. The Fourteenth and Fifteenth Amendments would be largely inactive until the American Civil Rights Movement. Some modern courts up to and including the U.S. Supreme Court still interpret the Civil Rights Cases as limiting the scope of the Fourteenth Amendment.

Direct election of senators

Under the original constitutional system, while federal Representatives were popularly elected, federal Senators were appointed by State legislatures, thus ensuring a balance between Federal and State interests at the Federal level. The Seventeenth Amendment significantly altered the relationship of State and Federal powers, weakening pro-state-autonomy influence at the Federal level.

Later Progressive Era and World War II

By the beginning of the 20th century, greater cooperation began to grow between the State and federal governments. Soon, the federal government began to accumulate more power. It was early in this period that a federal income tax was implemented, first during the Civil War and then permanently with the Sixteenth Amendment in 1913. Before this, the states played a larger role in government.

States's rights were affected by the fundamental alteration of the federal government resulting from the Seventeenth Amendment, depriving state governments of an avenue of control over the federal government via the representation of each state's legislature in the U.S. Senate. This change has been described by legal critics as the loss of a check and balance on the federal government by the states.

Following the Great Depression, the New Deal and then World War II continued the growth of the federal government, its authority, and its responsibilities. The case of Wickard v. Filburn allowed the federal government to enforce the Agricultural Adjustment Act, providing subsidies to farmers for limiting their crop yields, arguing agriculture affected interstate commerce and came under the jurisdiction of the Commerce Clause even when a farmer grew his crops not to be sold, but for his own private use.

After World War II, President Harry Truman supported a civil rights bill and desegregated the military. The reaction was a split in the Democratic Party that led to the formation of the "States' Rights Party"—better known as the Dixiecrats—led by Strom Thurmond. Thurmond ran as the States' Rights candidate for President in 1948, losing to Truman.

African-American Civil Rights Movement

During the African-American Civil Rights Movement of the 1950s and 1960s, the longstanding use of states' rights to maintain Southern racial politics was highlighted with proponents of racial segregation and Jim Crow laws denouncing federal interference in these state-level policies.

Brown v. Board of Education (1954) overruled the Plessy v. Ferguson (1896) decision, but the Fourteenth and Fifteenth amendments were largely inactive in the South until the Civil Rights Act of 1964 (42 U.S.C. § 21) and the Voting Rights Act of 1965. Several states passed Interposition Resolutions to declare that the Supreme Court's ruling in Brown usurped states' rights.

There was also states' rights opposition to voting rights at Edmund Pettus Bridge, which was part of the Selma to Montgomery marches that resulted in the Voting Rights Act of 1965.

Contemporary debates

In 1964, the issue of fair housing in California involved the boundary between state laws and federalism. California Proposition 14 overturned the Rumsford Fair Housing Act and allowed discrimination in any type of home sale. Martin Luther King, Jr. and others saw this as a backlash against civil rights. Actor Ronald Reagan gained popularity by supporting Proposition 14, and was later elected governor of California. The U.S. Supreme Court's Reitman v. Mulkey decision overturned Proposition 14 in 1967 in favor of the Equal Protection Clause of the Fourteenth Amendment.

Another concern is the fact that on more than one occasion, the federal government has threatened to withhold highway funds from states which did not pass certain articles of legislation. Any state which lost highway funding for any extended period would face financial impoverishment, infrastructure collapse or both. Although the first such action (the enactment of a national speed limit) was directly related to highways and done in the face of a fuel shortage, most subsequent actions have had little or nothing to do with highways and have not been done in the face of any compelling national crisis. An example of this would be the federally mandated drinking age of 21. Critics of such actions feel that when the federal government does this they upset the traditional balance between the states and the federal government.

More recently, the issue of states' rights has come to a head when the Base Realignment and Closure Commission (BRAC) recommended that Congress and the Department of Defense implement sweeping changes to the National Guard by consolidating some Guard installations and closing others. These recommendations in 2005 drew strong criticism from many states, and several states sued the federal government on the basis that Congress and the Pentagon would be violating states' rights should they force the realignment and closure of Guard bases without the prior approval of the governors from the affected states. After Pennsylvania won a federal lawsuit to block the deactivation of the 111th Fighter Wing of the Pennsylvania Air National Guard, defense and Congressional leaders chose to try to settle the remaining BRAC lawsuits out of court, reaching compromises with the plaintiff states.

Current states' rights issues include the death penalty, assisted suicide, gay marriage and the medicinal use of marijuana, the last of which is in violation of federal law. In Gonzales v. Raich, the Supreme Court ruled in favor of the federal government, permitting the Drug Enforcement Administration (DEA) to arrest medical marijuana patients and caregivers. In Gonzales v. Oregon, the Supreme court ruled the practice of physician-assisted suicide in Oregon is legal.

These concerns have led to a movement sometimes called the State Sovereignty movement or "10th Amendment Sovereignty Movement".

10th Amendment Resolutions

In 2009-2010 thirty eight states have introduced resolutions to reaffirm the principles of sovereignty under the Constitution and the 10th Amendment; Nine states have passed the resolutions. These non-binding resolutions, often called “state sovereignty resolutions” do not carry the force of law. Instead, they are intended to be a statement to demand that the federal government halt its practices of assuming powers and imposing mandates upon the states for purposes not enumerated by the Constitution of the United States of America.

States' rights and the Rehnquist Court

The Supreme Court's University of Alabama v. Garrett (2001) and Kimel v. Florida Board of Regents (2000) decisions allowed states to use a rational basis review for discrimination against the aged and disabled, arguing that these types of discrimination were rationally related to a legitimate state interest, and that no "razorlike precision" was needed." The Supreme Court's United States v. Morrison (2000) decision limited the ability of rape victims to sue their attackers in federal court. Chief Justice William H. Rehnquist explained that "States historically have been sovereign" in the area of law enforcement, which in the Court's opinion required narrow interpretations of the Commerce Clause and Fourteenth Amendment.

Kimel, Garrett and Morrison indicated that the Court's previous decisions in favor of enumerated powers and limits on Congressional power over the states, such as United States v. Lopez (1995), Seminole Tribe v. Florida (1996) and City of Boerne v. Flores (1997) were more than one time flukes. In the past, Congress relied on the Commerce Clause and the Equal Protection Clause for passing civil rights bills, including the Civil Rights Act of 1964.

Lopez limited the Commerce Clause to things that directly affect interstate commerce, which excludes issues like gun control laws, hate crimes, and other crimes that affect commerce but are not directly related to commerce. Seminole reinforced the "sovereign immunity of states" doctrine, which makes it difficult to sue states for many things, especially civil rights violations. The Flores "congruence and proportionality" requirement prevents Congress from going too far in requiring states to comply with the Equal Protection Clause, which replaced the ratchet theory advanced in Katzenbach v. Morgan (1966). The ratchet theory held that Congress could ratchet up civil rights beyond what the Court had recognized, but that Congress could not ratchet down judicially recognized rights. An important precedent for Morrison was United States v. Harris (1883), which ruled that the Equal Protection Clause did not apply to a prison lynching because the state action doctrine applies Equal Protection only to state action, not private criminal acts. Since the ratchet principle was replaced with the "congruence and proportionality" principle by Flores, it was easier to revive older precedents for preventing Congress from going beyond what Court interpretations would allow. Critics such as Associate Justice John Paul Stevens accused the Court of judicial activism (i.e., interpreting law to reach a desired conclusion).

The tide against federal power in the Rehnquist court was stopped in the case of Gonzales v. Raich, in which the court upheld the federal power to prohibit medicinal use of cannabis even if states have permitted it. Rehnquist himself was a dissenter in the Raich case.

States' rights as "code word"

Over thirty years ago the term "states' rights," some have argued, was used as a code word by defenders of segregation. In 1948 it was the official name of the "Dixiecrat" party led by white supremacist presidential candidate Strom Thurmond. Democrat governor George Wallace, of Alabama, famously declared in his inaugural address in 1962, "Segregation now! Segregation tomorrow! Segregation forever!"—later remarked that he should have said, "States' rights now! States' rights tomorrow! States' rights forever!" Wallace, however, claimed that segregation was but one issue symbolic of a larger struggle for states' rights; in that view, which some historians dispute, his replacement of segregation with states' rights would be more of a clarification than a euphemism.

See also

• Origins of the American Civil War
• Federalism
• Compact theory
• Rule according to higher law
• State citizenship

References

• Ann Althouse. "Why Talking about "States' Rights" Cannot Avoid the Need for Normative Federalism Analysis" Duke Law Journal, Vol. 51, 2001
• Lynn A. Baker & Ernest A. Young, "Federalism and the Double Standard of Judicial Review" , 51 Duke Law Journal (2001), which argues at 143-49 : "To many, [the notion of states' rights] stands for an anachronistic (and immoral) preference for the race-based denial of essential individual rights....".
• Daniel A. Farber. "States' Rights and the Union: Imperium in Imperio, 1776-1876" Constitutional Commentary, Vol. 18, 2001
• Russell Kirk, Randolph of Roanoke: A Study in Conservative Thought (1951)
• Forrest McDonald. States' Rights and the Union: Imperium in Imperio, 1776-1876 (2002)
• Norman K. Risjord, The Old Republicans: Southern Conservatism in the Age of Jefferson (1965)
• Manisha Sinha; "Revolution or Counterrevolution?: The Political Ideology of Secession in Antebellum South Carolina" Civil War History, Vol. 46, 2000 in JSTOR
• Manisha Sinha. "The Counter-Revolution Of Slavery: Politics and Ideology in Antebellum South Carolina", The University of North Carolina Press, 2000.

Further reading

• Jefferson Davis, "The Doctrine of State Rights" (1890). The North American Review, Vol. 150, No. 399, pp. 205–219.
• Frederick D. Drake, ed. States' Rights and American Federalism: A Documentary History (1999)
• James J. Kilpatrick. The Sovereign States: Notes of a Citizen of Virginia (Chicago: Henry Regnery Company, 1957); pro-states' rights book

External links

• Tenth Amendment Center Federalism and States Rights in the U.S.
• States' Rights in Encyclopedia Virginia
• A copy of transcript of Florida's 1957 Interposition Resolution, made available for public use by the State Archives of Florida
• Missouri Sovereignty Project "Institutionalizing" the 10th Amendment into the populace and political fabrics of Missouri.