States' rights
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In
Background
The balance of federal powers and those powers held by the states as defined in the
The Supremacy Clause
The Supremacy Clause of the U.S. Constitution states:
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, anything in the constitution or laws of any state to the contrary notwithstanding. (Emphasis added.)
In The Federalist Papers, ratification proponent Alexander Hamilton explained the limitations this clause placed on the proposed federal government, describing that acts of the federal government were binding on the states and the people therein only if the act was in pursuance of constitutionally granted powers, and juxtaposing acts which exceeded those bounds as "void and of no force":
But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.[citation needed]
Controversy to 1865
In the period between the
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 and called on state legislatures to nullify unconstitutional federal laws. (The other states, however, did not follow suit and several rejected the notion that states could nullify federal law.) 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, which became part of the Principles of '98, along with the supporting Report of 1800 by Madison, became final documents of Jefferson's Democratic-Republican Party.[5] Gutzman argued that Governor Edmund Randolph designed the protest in the name of moderation.[6] Gutzman argues that in 1798, Madison espoused states' rights to defeat national legislation that he maintained was a threat to republicanism. During 1831–33, the South Carolina Nullifiers quoted Madison in their defense of states' rights. But Madison feared that the growing support for this doctrine would undermine the union and argued that by ratifying the Constitution states had transferred their sovereignty to the federal government.[7]
The most vociferous supporters of states' rights, such as John Randolph of Roanoke, were called "Old Republicans" into the 1820s and 1830s.[8]
Tate (2011) undertook a literary criticism of a major book by John Taylor of Caroline, New Views of the Constitution of the United States. Tate argues it is structured as a forensic historiography modeled on the techniques of 18th-century Whig lawyers. Taylor believed that evidence from American history gave proof of state sovereignty within the union, against the arguments of nationalists such as U.S. Chief Justice John Marshall.[9]
Another states' rights dispute occurred over the War of 1812. At the Hartford Convention of 1814–15, New England Federalists voiced opposition to President Madison's war, and discussed secession from the Union. In the end they stopped short of calls for secession, but when their report appeared at the same time as news of the great American victory at the Battle of New Orleans, the Federalists were politically ruined.[10]
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 international 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.
Civil War
Over following decades, another central dispute over states' rights moved to the forefront. The issue of
Southern arguments
Southern states had a long tradition of using states' rights doctrine since the late eighteenth century to support slavery.[13] A major Southern argument in the 1850s was that federal law to ban the expansion of slavery into the territories discriminated against states that allowed slavery, making them second-class states. In 1857 the Supreme Court sided with these states' rights supporters, declaring in Dred Scott v. Sandford that Congress had no authority to regulate slavery in the territories.[14]
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.[15]
Southern states argued against "states' rights" when it benefited them in the context of
Northern arguments
The historian
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
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.[20]
Sinha[21] and Richards[22] both argue that the Southerners only advocated states' rights when they disagreed with a policy. Examples given are a states' right to engage in slavery or to suppress freedom of speech. 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.
Texas v. White
In
Since the Civil War
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.[citation needed]
In case law
With
Furthermore, United States v. Harris (1883) held that the Equal Protection Clause did not apply to an 1883 prison lynching on the basis that the Fourteenth Amendment applied only to state acts, not to individual criminal actions.
In the Civil Rights Cases (1883), the Supreme Court allowed segregation by striking down the Civil Rights Act of 1875, a statute that prohibited racial discrimination in public accommodation. It again held that the Equal Protection Clause applied only to acts done by states, not to those done by private individuals, and as the Civil Rights Act of 1875 applied to private establishments, the Court said, it exceeded congressional enforcement power under Section 5 of the Fourteenth Amendment.
Later progressive era and World War II
By the beginning of the 20th century, greater cooperation began to develop between the state and federal governments and the federal government began to accumulate more power. Early in this period, a federal income tax was imposed, first during the Civil War as a war measure and then permanently with the Sixteenth Amendment in 1913. Before this, the states played a larger role in government.
States' rights were affected by the fundamental alteration of the federal government resulting from the
Following the Great Depression, the New Deal, and then World War II saw further growth in the authority and responsibilities of the federal government. 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
Civil rights movement
During the 1950s and 1960s, the
Though Brown v. Board of Education (1954) overruled the Plessy v. Ferguson (1896) decision, the Fourteenth and Fifteenth amendments were largely inactive in the South until the Civil Rights Act of 1964 (42 U.S.C. § 21)[25] 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 opposition by states' rights advocates 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.
Conservative historians Thomas E. Woods Jr. and Kevin R. C. Gutzman argue that when politicians come to power they exercise all the power they can get, in the process trampling states' rights.[28] Gutzman argues that the Kentucky and Virginia resolutions of 1798 by Jefferson and Madison were not only responses to immediate threats but were legitimate responses based on the long-standing principles of states' rights and strict adherence to the Constitution.[29]
Another concern is the fact that on more than one occasion, the federal government has threatened to
More recently, the issue of states' rights has come to a head when the
Current states' rights issues include the
These concerns have led to a movement sometimes called the State Sovereignty movement or "10th Amendment Sovereignty Movement".[32]
10th Amendment
The
In 2009–2010 thirty-eight states introduced resolutions to reaffirm the principles of sovereignty under the Constitution and the 10th Amendment; 14 states have passed the resolutions. These non-binding resolutions, often called "
States' rights and the Rehnquist Court
The Supreme Court's
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
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).[citation needed]
The tide against federal power in the Rehnquist court was stopped in the case of Gonzales v. Raich, 545 U.S. 1 (2005), 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.[citation needed]
States' rights as code word
Since the 1940s, the term "states' rights" has often been considered a loaded term or dog whistle because of its use in opposition to federally-mandated racial desegregation[42] and, more recently, same-sex marriage and reproductive rights.[43][44]
During the heyday of the civil rights movement, defenders of racial segregation[45][c] used the term "states' rights" as a code word in what is now referred to as dog-whistle politics: political messaging that appears to mean one thing to the general population but has an additional, different, or more specific resonance for a targeted subgroup.[46][47][48] In 1948 it was the official name of the "Dixiecrat" party led by white supremacist presidential candidate Strom Thurmond.[49][50] Democratic Governor George Wallace of Alabama, who famously declared in his inaugural address in 1963, "Segregation now! Segregation tomorrow! Segregation forever!" later remarked that he should have said, "States' rights now! States' rights tomorrow! States' rights forever!"[51] 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.[51]
In 2010, some claimed that Texas Governor Rick Perry's use of the expression "states' rights" was "reminiscent of an earlier era when it was a rallying cry against civil rights."[52] During an interview with The Dallas Morning News, Perry made it clear that he supports the end of segregation, including passage of the Civil Rights Act. The Texas president of the NAACP, Gary Bledsoe, stated that he understood that Perry was not speaking of "states' rights" in a racial context, but others still claimed to feel offended by the term because of its past misuse.[52]
See also
- Bibliography of the United States Constitution
- Balkanization – Fragmentation of multi-ethnic states
- Bibliography of the American Civil War
- Compact theory – United States foundational philosophy
- Federalism in the United States – Division of powers between national, state, tribal and local governments
- New Federalism – Transfer of certain powers from the United States federal government back to the states
- Local government – Lowest tier of administration within a sovereign state
- Neo-feudalism – Theoretic rebirth of antique governance
- Origins of the American Civil War – Aspect of history
- Rule according to higher law – Belief that universal principles of morality override unjust laws
- States' Rights Party (disambiguation)
- Subsidiarity – Principle of social organization
- Subsidiarity (European Union) – Principle of governance of the European Union (The rights and responsibilities of EU member states.)
Notes
- ^ Speaking of alternative explanations for secession, McPherson writes (p.7), "While one or more of these interpretations remain popular among the Sons of Confederate Veterans and other Southern heritage groups, few professional historians now subscribe to them. Of all these interpretations, the state's-rights argument is perhaps the weakest. It fails to ask the question, state's rights for what purpose? State's rights, or sovereignty, was always more a means than an end, an instrument to achieve a certain goal more than a principle.
- ^ The pro-slavery forces controlling the House of Representatives passed the Pinckney Resolutions, authored and introduced by Henry L. Pinckney of South Carolina, on May 26, 1836. The first stated that Congress had no constitutional authority to interfere with slavery in the states, and the second that it "ought not" to interfere with slavery in the District of Columbia. The third was known from the beginning as the "gag rule", and passed with a vote of 117 to 68. This gag rule was a series of rules that forbade the raising, consideration, or discussion of slavery in the U.S. House of Representatives from 1836 to 1844.
- ^ From Encyclopedia of Alabama - "After the Civil War and Reconstruction, Alabama, along with other southern states, used states' rights arguments to restore a system of white supremacy and racial segregation. ... The term still appears on occasion in political speech, in some cases as code language indicating support of discriminatory practices or outright racism; as a result, its use is often met with skepticism or suspicion by the public at large."
References
Citations
- ^ Gardbaum, Stephen. "Congress's Power to Pre-Empt the States", Pepperdine Law Review, Vol. 33, p. 39 (2005).
- ^ Bardes, Barbara et al. American Government and Politics Today: The Essentials (Cengage Learning, 2008).
- ^ a b "The United States Constitution - The U.S. Constitution Online - USConstitution.net".
- ^ a b Orbach, Callahan & Lindemmen, "Arming States' Rights: Federalism, Private Lawmakers, and the Battering Ram Strategy", Arizona Law Review (2010)
- ^ Gutzman, Kevin R. C. (2012). James Madison and the Making of America. pp. 274–76.
- S2CID 145724474.
- JSTOR 3124014.
- ^ Risjord, Norman K. (1965). The Old Republicans: Southern Conservatism in the Age of Jefferson.
- ^ Tate, Adam (2011). "A Historiography of States' Rights: John Taylor of Caroline's New Views of the Constitution". Southern Studies. 18 (1): 10–28.
- ^ James M Banner, To the Hartford Convention: the Federalists and the origins of party politics in Massachusetts, 1789–1815 (1970)
- ^ Mackowski, Chris (January 22, 2019), "Primary Sources: Slavery as the Cause of the Civil War", Emerging Civil War, archived from the original on January 20, 2021, retrieved September 15, 2021
- ^ Aaron Sheehan-Dean, "A Book for Every Perspective: Current Civil War and Reconstruction Textbooks," Civil War History (2005) 51#3 pp. 317–24
- ^ McDonald, Forrest (2000). States' Rights and the Union. University Press of Kansas.
- ^ John Mack Faragher, Mari Jo Buhle, Daniel Czitrom Out of Many: A History of the American people (2005) p. 376
- ^ Jefferson Davis' Resolutions on the Relations of States, Senate Chamber, U.S. Capitol, February 2, 1860, from The Papers of Jefferson Davis, Volume 6, pp. 273–76. Transcribed from the Congressional Globe, 36th Congress, 1st Session, pp. 658–59.
- ^ "Confederate States of America – A Declaration of the Causes which Impel the State of Texas to Secede from the Federal Union". Yale Law School. March 1845. Retrieved July 1, 2015.
- ^ James McPherson, This Mighty Scourge, pp. 3–9.
- ^ K. Marx (1861) The Civil War in the United States. In MECW (ed. Lawrence & Wishart, 2010) Volume 19, p. 48.
- ^ a b William H. Freehling, The Road to Disunion: Secessionists Triumphant, 1854–1861
- OCLC 3942444. Retrieved July 26, 2009.
John Randolph.
- OCLC 44075847. Retrieved March 14, 2009.
- OCLC 43641070.
- ^ Murray pp. 155–59.
- ^ Bybee, Jay S. (1997). "Ulysses at the Mast: Democracy, Federalism, and the Sirens' Song of the Seventeenth Amendment". Northwestern University Law Review. 91. Chicago, IL: 505.
- ^ a b "Civil Rights Act of 1964 - CRA - Title VII - Equal Employment Opportunities - 42 US Code Chapter 21 - findUSlaw". finduslaw.com.
- ^ Skelton, George (May 7, 2014) "Thank you, Donald Sterling, for reminding us how far we've come" Los Angeles Times
- ^ Pillar of Fire, Taylor Branch, p. 242
- ^ Thomas E. Woods, Jr. and Kevin R. C. Gutzman, Who Killed the Constitution?: The Federal Government Vs. American Liberty from World War I to Barack Obama (Random House Digital, 2009) p. 201
- ^ K. R. Constantine Gutzman, "The Virginia and Kentucky Resolutions Reconsidered: 'An Appeal to the Real Laws of Our Country'", Journal of Southern History (Aug 2000), Vol. 66 Issue 3, pp. 473–96
- ^ Linder, Brad (August 24, 2005). "Penn. Governor Fights Deactivation of Guard Units". NPR. Retrieved January 9, 2024.
- ^ "Judge: Governor must OK Guard unit closure" (PDF). National Guard Association of the United States. Associated Press. August 26, 2005. Archived from the original (PDF) on July 18, 2011. Retrieved January 9, 2024.
- ^ Jhonston, Kirk (March 16, 2010). "States' Rights Is Rallying Cry for Lawmakers". The New York Times. Archived from the original on April 1, 2010.
- ^ "Tenth Amendment – Reserved Powers – Contents" (PDF). GPO.gov. United States Government Printing Office.
- ^ "State Legislators Want to Nullify Federal Gun Control". Reason. July 2021.
- ^ "Are Sanctuary Cities the New Confederates?". National Review. October 15, 2015.
- ^ "Can States or Citizens 'Nullify' Federal Cannabis Prohibition?". Cannabis Now. June 20, 2018.
- ^ "About the Tenth Amendment". Tenth Amendment Center. Retrieved February 11, 2022.
- ^ "Model Legislation". Tenth Amendment Center. Retrieved February 11, 2022.
- ^ "Board of Trustees of the University of Alabama et al. v. Garrett et al., U.S. Supreme Court, decided February 21, 2001".
- ^ "Kimel v. Florida Board of Regents, U.S. Supreme court, decided January 11, 2000".
- ^ "United States v. Morrison". LII / Legal Information Institute.
- ^ Herbert, Bob (October 6, 2005). "Impossible, Ridiculous, Repugnant". The New York Times.
- ^ Craver, Jack (March 31, 2013). "New GOP line on gay marriage: It's about states' rights". The Capital Times. Retrieved November 9, 2021.
- ^ Abrams, Abigail (January 1, 2020). "Here's How Conservatives Are Using Civil Rights Law to Restrict Abortion". Time. Retrieved November 9, 2021.
- ^ White, D. Jonathan (2009). "States' Rights". Encyclopedia of Alabama. Retrieved September 9, 2010.
- ISBN 978-0-19-996427-7.
- ^ Full Show: Ian Haney López on the Dog Whistle Politics of Race, Part I. Moyers & Company, February 28, 2014.
- ^ Yao, Kevin (November 9, 2015). "A Coded Political Mantra". Berkeley Political Review: UC Berkeley's Only Nonpartisan Political Magazine. Retrieved February 5, 2016.
- ISBN 978-0-87113-984-9.
- ISBN 1-58648-392-7.
- ^ a b Carter, Dan T. From George Wallace to Newt Gingrich: Race in the Conservative Counterrevolution, 1963–1994. p. 1.
- ^ a b Slater, Wayne (November 19, 2010). "Analysis: Perry's 'states' rights' battle cry evokes history that could damage his message". The Dallas Morning News. Retrieved November 21, 2010.
Sources
- Althouse, Anne (October 2001). "Why Talking About "States' Rights" Cannot Avoid the Need for Normative Federalism Analysis: A Response to Professors Baker and Young". Duke Law Journal. 51 (1): 363–376. JSTOR 1373236. Retrieved December 2, 2011.
- Baker, Lynn A.; Young, Ernest A. (October 2001). "Federalism and the Double Standard of Judicial Review". Duke Law Journal. 51 (1): 75. JSTOR 1373231. Retrieved December 2, 2011., 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....".
- Farber, Daniel A. (2001). "States' Rights and the Union: Imperium in Imperio, 1776–1876". Constitutional Commentary. 18.
- Kirk, Russell K. (1951). Randolph of Roanoke: A Study in Conservative Thought.
- ISBN 9780312625009.
- Gutzman, Kevin R. C. (1995). "A troublesome legacy: James Madison and "The principles of '98'". Journal of the Early Republic. 15 (4 (Winter)): 569–89.
- Gutzman, Kevin R. C. (August 2000). "The Virginia and Kentucky Resolutions Reconsidered: 'An Appeal to the Real Laws of Our Country'". Journal of Southern History. 66 (3): 473–96.
- McDonald, Forrest (2001). "States' Rights and the Union: Imperium in Imperio, 1776–1876". Constitutional Commentary. 18.
- Murray, Robert Bruce (2003). Legal Cases of the Civil War. ISBN 0-8117-0059-3.
- Risjord, Norman K. (1965). The Old Republicans: Southern Conservatism in the Age of Jefferson. New York: Columbia University Press.
- Sinha, Manisha (2000). "Revolution or Counterrevolution?: The Political Ideology of Secession in Antebellum South Carolina". Civil War History. 46. (in JSTOR)
- ISBN 0-8078-2571-9.
- Orbach, Barak Y. (2010). "Arming States' Rights: Federalism, Private Lawmakers, and the Battering Ram Strategy". Arizona Law Review. 52. et al.
Further reading
- Sotirios A. Barber, The Fallacies of States' Rights. Cambridge, MA: Harvard University Press, 2013.
- 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)
- Henry Regnery Company, 1957.
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 Archived 2019-08-12 at the Wayback Machine "Institutionalizing" the 10th Amendment into the populace and political fabrics of Missouri.