The Federalism Debate [And 'States Rights']

The Tenth Amendment states: "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."

By its terms the amendment tells us nothing about which powers are delegated to the federal government, which are prohibited to the states, or which are reserved to the states or to the people. To determine that, we have to look to the centerpiece of the Constitution, the doctrine of enumerated powers.

That doctrine is discussed at length in the Federalist Papers. But it is explicit as well in the very first sentence of Article 1, section 1, of the Constitution ("All legislative Powers herein granted . . .") and in the Tenth Amendment's reference to powers "not delegated," "prohibited", and "reserved."

Plainly, power resides in the first instance in the people, who then grant or delegate their power, reserve it, or prohibit its exercise, not immediately through periodic elections but rather institutionally--through the Constitution. The importance of that starting point cannot be overstated, for it is the foundation of whatever legitimacy our system of government can claim.

What the Tenth Amendment says, in a nutshell, is this:
if a power has not been delegated to the federal government, that government simply does not have it. In that case it becomes a question of state law whether the power is held by a state or, failing that, by the people, having never been granted to either government.

At bottom, then, the Tenth Amendment is not about federal vs. state, much less about federal-state "partnerships," block grants, "swapping," "turnbacks," or any of the other modern concepts of intergovernmental governance. It is about legitimacy.
As the final member of the Bill of Rights, and the culmination of the founding period, the Tenth Amendment recapitulates the philosophy of government first set forth in the Declaration of Independence, that governments are instituted to secure our rights, "deriving their just powers from the consent of the governed."
Without that consent, as manifest in the Constitution, power is simply not there.

It is the doctrine of enumerated powers, then, that gives content to the Tenth Amendment, informs its theory of legitimacy, and limits the federal government. Power is granted or delegated by the people, enumerated in the Constitution, and thus limited by virtue of that delegation and enumeration.
The Framers could hardly have enumerated all of our rights--a problem the Ninth Amendment was meant to address.
They could enumerate the federal government's powers, which they did to restrain that government. The doctrine of enumerated powers was meant to be the principal line of defense against overweening government. The Bill of Rights, added two years after the Constitution was ratified, was meant as a secondary defense.

Yet today the federal government exercises powers not remotely found in the Constitution, leading lawyers and laymen alike to say, increasingly, that those powers are illegitimate. How then did we get to this point, where the federalism debate is increasingly a debate about the very foundations of our system of government?
I have discussed that question at length elsewhere. Let me simply summarize the answer here, then turn to an issue that seems to concern the subcommittee, and not without reason--the connection, historically and prospectively, between federalism and "states' rights."

Our modern regulatory and redistributive state--the state the Framers sought explicitly to prohibit--has arisen largely since 1937, and primarily through just two clauses in the Constitution, the Commerce Clause and the General Welfare Clause respectively. It is striking that this is so, for if the Framers had meant for Congress to be able to do virtually anything it wanted through those two simple clauses, why would they have bothered to enumerate Congress' other powers, much less defend the doctrine of enumerated powers throughout the Federalist Papers?
That is the question that cries out for explanation.

The explanation, of course, is that the Framers intended no such thing. The modern state arose through judicial legerdemain, following Franklin Roosevelt's notorious 1937 Court-packing scheme.

In a nutshell, the Commerce Clause, which gives Congress the power to regulate commerce among the states, arose out of concern that the free flow of commerce among the states might break down if states, as under the Articles of Confederation, had the power to erect protectionist measures on behalf of indigenous enterprises. Thus, its principal aim was to ensure the free flow of commerce by giving Congress the power to regulate, or make regular, such interstate commerce.
Not remotely did the Framers intend that the clause would be converted from a shield against state abuse--its use in the first great Commerce Clause case, Gibbons v. Ogden -- into a sword, enabling Congress, through regulation, to try to bring about all manner of social and economic ends.
Yet today, following the Supreme Court's reversal in 1937, that is just what has happened as Congress claims power to regulate anything that even "affects" interstate commerce, which in principle is everything.

The General Welfare Clause of Article 1, section 8, was also intended as a shield, to ensure that Congress, in the exercise of any of its enumerated powers, would act for the general rather than for any particular welfare.
Here, however, Hamilton stood opposite Madison, Jefferson, and others in thinking that the clause amounted to an independent, enumerated power--albeit limited to serving the general welfare. But as Congressman William Drayton noted in 1828, if Hamilton were right, then whatever Congress is barred from doing because there is no power with which to do it, it could accomplish by simply appropriating the money with which to do it.
That, of course, is precisely what happened, which the Court sanctioned when it came down on Hamilton's side in 1936, then a year later went Hamilton one better by saying that although the distinction between general and particular welfare must be maintained, the Court would not itself police that distinction.
Congress, the very branch that was redistributing with ever-greater particularity, would be left to police itself.

With the Court's evisceration of the doctrine of enumerated powers, the modern regulatory and redistributive state poured through the opening. One result of the subsequent explosion of federal power, of course, was the contraction of state power where the two conflicted--and the attendant federalism dilemmas.
At the same time, individual liberty contracted as well--the preservation of which was supposed to be the very purpose of government.
And finally, questions about constitutional legitimacy never did go away. As government grew, the idea that a Constitution designed for limited government had authorized that growth of power became increasingly difficult to sustain.

But what about the sorry history of "states' rights" as a doctrine that southern states invoked by way of defending slavery and then, after the Civil War, the reign of Jim Crow? Does this not give weight to the question, "Why doesn't Washington trust the states?" Indeed it does, but here too there has been substantial misunderstanding over the years, with a seminal Supreme Court case at its core.

The tragic compromise that led the Framers to accept slavery in their midst is well known. It took a civil war to abolish that institution, and the Civil War Amendments to secure the legal rights of the freed slaves.
Unfortunately, no sooner had those amendments been ratified than the principal vehicle for insuring substantive rights against state action, the Privileges and Immunities Clause of the Fourteenth Amendment, was eviscerated by a deeply divided Court in the Slaughter-House cases.
The clause has never been successfully revived.

On Blackstone's view, the clause referred to our "natural liberties." The Civil Rights Act of 1866, which Congress reenacted in 1870, just after the Fourteenth Amendment was ratified, made it clear that the clause was meant to protect the very rights Jim Crow went on to deny.

The demise, then, of the Privileges and Immunities Clause had nothing to do really with the Tenth Amendment or the doctrine of enumerated powers. It was a blatant case of judicial abdication that eviscerated the clause, thereby leaving the freed slaves in the South to the mercies of state legislatures.

Nor is there anything in current efforts to revive the Tenth Amendment and the doctrine of enumerated powers that should give pause--provided only that we are clear, and the judiciary is clear, that the Fourteenth Amendment gives the courts, through section 1, and the Congress, through section 5, the power to negate state actions that deny their citizens the privileges and immunities of citizens of the United States.

Were the Congress to move to do that, the promise of the Civil War Amendments would at last be realized, not in opposition to federalism, but in harmony with it as perfected through those amendments.

Yes, the Tenth Amendment was the first to fall. I especially like the following:

if a power has not been delegated to the federal government, that government simply does not have it. In that case it becomes a question of state law whether the power is held by a state or, failing that, by the people, having never been granted to either government.

In Tennessee, three times the state courts have ruled that the state legislature does NOT have the power to institute an income tax (at least once before the 16th Amendment was "ratified"). However, the Tennessee legislature also voted to ratify the 16th Amendment.

This causes the following question to arise: How can a legislature vote to give the federal government the power to do something that they themselves do not have the power to do?

Yep, there was a lot of fancy language used, & compromises made, -- in order ratify our Bill of Rights, -- but they're still pretty clear to me.
Do you have a problem with States obeying them as the Law of the Land?

Art VI, unless I'm missing something, is not a prohibition on the states.

You're missing the main point of it. The --- "laws of any State to the Contrary notwithstanding" -- is very clear language.

The Bill of Rights is irrelevant.

Our RKBA's is "irrelevant"? Bet me.

I am discussing the ORIGINAL cons, which was ratified w/out a BOR. Furthermore, the BOR did NOT apply to the states until after the Civil War.

You're parroting the Statist line. Art VI proves you wrong.

The BOR applied ONLY to the Federal Gov. Many of the states, for example, (VA included) actually had state supported churches. If you lived in VA,you paid taxes to support the state church. That simple. Again, the prohibitions in Art 1, sec 10 are indeed thin.

Thank you ray, -- its always fun to see another anti-constitutionalist out himself on FR.

The Doctrine of Incorporation (of the Bill of Rights) screwed the whole thing up. It was assumed that unalienable rights were not negotiable before the first 10 were written. Some of the main rights were specifically deliniated as a double check against government's infringing nature.

Now that they were formally included, all of a sudden they became negotiable (those that were included), the federal government found a way to deny or alter some of the people's rights, giving the states the power to legislate some of those rights away. The second amendment comes to mind.

How convenient. State and federal governments working hand in hand to subvert the will of we the people. I don't think anyone will argue that the federal government will impose its will on the states (by virtue of contracts between the state and the fedguv), and at the same time, will withdraw its power and allow the state to frame its own laws against the rights of the people. Gun rights are not uniform, due to the doctrine of incorporation which allows states to write laws before the fedguv becomes involved.

But two things show both the state and the fedguv as inconsistent in practice. One is Roe v Wade, which is really a state problem, and the other is the second amendment, which the fedguv is supposed to enforce in favor of the people of all states. The 14th was supposed to be the teeth of the first Civil Rights act, but the fedguv deferred and allowed the states their Jim Crow practices. It wasn't until 100 years later that the fedguv created another Civil Rights Act and began enforcing them for the first time. (Thanks to Martin Luther King.)

It was as though the fedguv knew that it couldn't control how the states treated the blacks immediately after the civil, but it gave the states 100 years to get used to the idea that the 14th Amendment was going to be enforced, which it was upon the enactment of the 1964 Civil Rights Act.

In any case, Article VI para 2 (supreme law clause) is the logical formula to use in determining whose law is more supreme -- the people, the state or the federal government. I vote for the individual first, then the state, in matters not pertaining to the protection of unalienable rights, and then the federal government, in matters pertaining to the protection of unalienable rights which some states are prone to infringe upon. IMO.

I do not agree Roe vs Wade is a State issue if life is involved.

All states must adhere to the Federal Constitution and the principles of the Declaration.

I think the people just got tired of Reconstruction and were not too concerned about what happened to the Blacks.

The South just waited the North out.

Concerning indvidual rights, I'm with Forthedeclaration, and believe that unalienable rights are personal rights and neither the state nor the fedguv have been given power by the people to alter them. The federal government has enumerated powers, and they should have been more tightly defined on day one. States are also subject to the will of the people, and in that each state has a republican form of government, the rights of the very least Citizen can in no way be infringed upon by any kind of a majority vote. In any case, Article VI para 2 (supreme law clause) is the logical formula to use in determining whose law is more supreme -- the people, the state or the federal government. I vote for the individual first, then the state, in matters not pertaining to the protection of unalienable rights, and then the federal government, in matters pertaining to the protection of unalienable rights which some states are prone to infringe upon. IMO.

Agreed.

A State tryanny is no better then a Federal one.

The South before the Civil War rejected the Declaration of Independence and its statement that áll men were created equal...ánd it was determined after the Civil War, to ignore it.

This statement shows complete lack of American history knowledge. I hope you don't really mean this.

The Sons of the South have played an integral role in the founding of this Republic and have fought to maintain our sovereignty since it's inception. They were there in Korea, Vietnam, WWII, WWI, GWI, GWII, Revolutionary, WBTS, and every other conflict. The South has given her finest statesmen and soldiers to defend this Republic time and time again - that includes defending the DOI/Const/BOR.

Well put.
You sum up in a few paragraphs undeniable Constitutional truths.

Yet day in, day out, self described conservatives on this site claim they cannot understand these basic principles about our liberties.

I fear for the republic.

--- "The continuous disasters of man's history are mainly due to his excessive capacity and urge to become identified with a tribe, church or cause, and to espouse its credo uncritically and enthusiastically, even if its tenets are contrary to reason, devoid of self-interest and detrimental to the claims of self-preservation."
-Arthur Koestler-

Thus, we are driven to the conclusion that the trouble with our species is an excess capacity for fanatical devotion to "the cause".

"How can a legislature vote to give the federal government the power to do something that they themselves do not have the power to do?"

"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, 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..."

Looks like the legislatures may vote on whether or not to ratify a proposed amendment without regard to whether or not any particular one of them has or doesn't have the power to do whatever the amendment authorizes.

More to the point of this thread:

Can a legislature vote to give the federal government the power to do something that they themselves do have the power to do?

Can the people vote to give the federal government the power to do something that they themselves do have the power to do?

Vice President of the South Did you just make this up? Perhaps you meant A.H. Stephens, Vice President of the Confederate States of America. Prob. referencing the "cornerstone" speech. Where are you getting your talking points from?

By 'talking points' you mean facts!

http://www.geocities.com/CollegePark/Quad/6460/doct/861crnrstn.html

by Alexander H. Stephens Given extemporaneously, text from in Henry Cleveland, Alexander H. Stephens, in Public and Private: With Letters and Speeches, before, during, and since the War, Philadelphia, 1886, pp. 717-729. I was remarking, that we are passing through one of the greatest revolutions in the annals of the world. Seven States have within the last three months thrown off an old government and formed a new. This revolution has been signally marked, up to this time, by the fact of its having been accomplished without the loss of a single drop of blood. [Applause.]

. . . . But not to be tedious in enumerating the numerous changes for the better, allow me to allude to one other -- though last, not least. The new constitution has put at rest, forever, all the agitating questions relating to our peculiar institution -- African slavery as it exists amongst us -- the proper status of the negro in our form of civilization. This was the immediate cause of the late rupture and present revolution. Jefferson in his forecast, had anticipated this, as the "rock upon which the old Union would split." He was right. What was conjecture with him, is now a realized fact. But whether he fully comprehended the great truth upon which that rock stood and stands, may be doubted. The prevailing ideas entertained by him and most of the leading statesmen at the time of the formation of the old constitution, were that the enslavement of the African was in violation of the laws of nature; that it was wrong in principle, socially, morally, and politically. It was an evil they knew not well how to deal with, but the general opinion of the men of that day was that, somehow or other in the order of Providence, the institution would be evanescent and pass away. This idea, though not incorporated in the constitution, was the prevailing idea at that time.

The constitution, it is true, secured every essential guarantee to the institution while it should last, and hence no argument can be justly urged against the constitutional guarantees thus secured, because of the common sentiment of the day. Those ideas, however, were fundamentally wrong. They rested upon the assumption of the equality of races. This was an error. It was a sandy foundation, and the government built upon it fell when the "storm came and the wind blew."

Our new government is founded upon exactly the opposite idea; its foundations are laid, its corner- stone rests upon the great truth, that the negro is not equal to the white man; that slavery -- subordination to the superior race -- is his natural and normal condition. [Applause.] (emphasis added)

Yea, real defenders of liberty!

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