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.

--- if supporting a State religion infringes on the rights of other State citizens, then surely supporting a National religion would infringe on the rights of other citizens. Do you agree?

There's no "if" about it. Such support of religion is an infringment by any level of government.

Now you posted that even though the state has the power to form a state religion,

Wrong. I said that some of the original States had such arrangments.
In effect the Establishment Clause grandfathered in those exceptions to republican government. Congress couldn't make laws regarding those exceptions.
I said: "I think they [other States] would be denied that power [to establish State religions] by a USSC opinion."

Did you not say that? Then it logically follows that if the National government has the power, they too would be denied that power by a USSC opinion. Don't you agree?

Your syntax is confused. -- That power is denied to the National government as well as to the States by our Constitution, as the USSC would agree.

So, why have the Establishment Clause of the 1st amendment? Hell, according to you, anybody who forms a church will be overrridden by the USSC anyways.

Illogical conclusion, paulsen.

The only logical answer is that the 1st amendment, all of it, only applied to the federal government. The states were free to form their own religion, and did.

No, none did, as you are well aware. Newly admitted States were not allowed to form State supported religions, as Utah found out.

States that had their own religion in 1789 were admitted to the Union. They maintained these religions until the early 1800's, and disbanded them on their own.

Which proves my point, not yours.

Today, the 1st amendment, all of it, applies to the states, Justice Clarence Thomas' opinion notwithstanding.

Nonsense, unsupported by any fact.

"As to your smoking example, I happen to agree. A private enterprise such as a hotel, bar, or restaurant, should be allowed to set their own rules as to who they will hire, for how much, and who they will serve (which includes smokers/non-smokers)."

Okay, the above is the context of your phrase.

My question is, who would do the allowing? The state, as I assumed you were referring to as the authority to allow the proprietor to make the choice, or the proprietor, who would allow himself to make that choice?

Did I assume incorrectly that you were referring to the state? If so, I withdraw my comment. It's moot. Let's move on.

"In your post #240, you said, "Before I address your other points ...". Well, now it's time.

For anyone following this conversation, the above relates to Mr. Paulsen's reply # 235, quoted below:

"As per the U.S. Constitution, people have certain unalienable rights which cannot be ceded or taken away. These would include life, liberty, the pursuit of happiness, and property ownership as examples."

Let me start by saying that if I am not HAPPY, it's because my LIBERTY was taken away from me by the state who decided my LIFE was not worth as much as a criminal's.

If I am prevented from protecting my own life with superior force, then liberty is but a transient word with little meaning and happiness can only be found in heaven. If that be the case, our constitution and the 'doctrine' of unalienable rights have no practical application in the real world and are not worth the paper they are written on.

But that is NOT the case, contrary to what some statists and tyranny-leaning despots would have you believe -- but for some reason, in their wiley ways they do give lip service to the constitution and keep up the facade of 'protecting' it.

In that our rights are unalienable/inalienable as coming from God and/or by virtue of birth, depending on your belief system, the environment to exercise those rights must be created and maintained by man. That is what the 'great experiment' is all about.

For the first time in human history, a large group of subjects found themselves one morning without a king or ruler and took the only course available to survive. They assumed the status as monarchs of themselves, individually, and immediately contracted with other 'monarchs' for their mutual protection.

This was something new to the human race. Something only kings enjoyed heretofore. It was going to take a long time to be able to cope with and learn the meaning of freedom and to begin practicing self-control, self-reliance and pesonal responsibility -- and to agree with each other, by contract, the limits of their freedom.

What our history has recorded since the American Revolution shows the efforts, gains and losses we have made to keep the idea and ideal of self-government alive.

It is sad testimony I must give right now, as it is evident that the next generation of monarchs will be few and far between and will be but a fading memory -- as will the hopes and dreams of all past and present free men who have striven to preserve the inheritance of all Citizens. An inheritance which was comprised of the awareness of unalienable rights and the power to practice those rights and perpetuate the ideals of freedom under the rule of law.

A rule of law which was destroyed in the state where liberty was founded, strangely enough.

An opinion, of course, but one that remains to be tested.

But then, I 'babble.'

Eastbound wrote:
For anyone following this conversation, the above relates to Mr. Paulsen's reply # 235, quoted below:

As per the U.S. Constitution, people have certain unalienable rights which cannot be ceded or taken away. These would include life, liberty, the pursuit of happiness, and property ownership as examples.
There are other, fundamental (or natural), rights which you have which may or may not be protected by the state in which you live. For example, you have a fundamental right to protect your self using any means necessary.

The state in which you live may protect that right, but exclude guns as a "necessary means".

If there is a "compelling state interest" in the legislation, then the state may override your fundamental right for the good of the community.
-paulsen-

______________________________________

Eastbound, -- as we see above from his quote, paulsen is the one here 'babbling'.

In one sentence he admits that: -- "you have a fundamental right to protect your self using any means necessary."
--- Then in the next he boldly claims that "compelling State interest" can infringe upon the right to possess the "means necessary".

--- Both Constitutionally, -- and rationally, -- there can be no State interest in prohibiting the possession of arms needed for self defense.

Millions of our enemies are armed with AK47's.
The paulsens of this world claim that a State [CA] can decree a compelling reason to prohibit us from owning such arms.
Their claims are the true babble.

"In one sentence he admits that: -- "you have a fundamental right to protect your self using any means necessary.""

"--- Then in the next he boldly claims that "compelling State interest" can infringe upon the right to possess the "means necessary"."

"--- Both Constitutionally, -- and rationally, -- there can be no State interest in prohibiting the possession of arms needed for self defense."

Looks like 'doublespeak to me, tpaine. Orwell was a prophet. Also looks like 'Animal Farm.' Beer is outlawed in Pigland, except on Sunday Night -- except for those who rule that beer is outlawed.

'Compelling state interest' has been abused. Therefore, it is no longer applicable and must be determined on an individual basis in the USSC. But even there, they refuse to rule on the truth of the matter concerning guns. So of what use is it? We must go back to basics and re-apply the founding principles of freedom.

I rested my case on this a long time ago. I choose life and claim my rights. Slaves cannot understand something they've never had. Their only hope is becoming a slavemaster, and once succeeding, they mistakenly believe everyone else is a slave and promptly resort to the rule of force to establish their 'kingdoms.' Even if they are only a paper-shuffler in some obscure government office.

RayStacey said,

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

Re-visiting here, as I would like to use this to say that even though many feel that the second amendment was not an incorporated (right to bear arms) and was written to limit the powers of the federal government, the amendment makes no sense unless it is INFERRING that the right to bear arms is a right already held by the people. Otherwise, why even write the amendment?

The amendment was written as a further check on the federal government not to infringe on that right specifically.

If the federal government acknowledges that right is held by the people, in the clear wording of the amendment, Article VI is a further safeguard for that right, as Article VI tells the state that it cannot infringe on that right either by virtue of the fact that the right keep and bear arms is a right held by the people.

Let me repeat: neither the fedguv nor the state can infringe upon the right to bear arms. The amendment does not have to be incorporated, as it is already an admission and acknowledgment that the people's right right to keep and bear arms was pre-existing. How plain can it get?

How many times does the Constitution have to tell us that it loves us? ;>

First for tpaine. You say that I want the state to be able to regulate morals. This is important, so let me be clear. The CONS has NOTHING WHATSOEVER to do with what I want. I am a sick, sick man and I LOVE guns way more than I should, probably way more than both you do. May God Almighty strike me dead this very moment if I am lying. Again -- I LOVE GUNS, and I swear by the Almighty again, that few things in this world make me more purely outraged than when some sub-human, scum-sucking, piece of liberal filth, unfit to tongue my testicles says that the 2nd amendment means that militias are acceptable. Therefore, I would LOVE it deeply and truly if the BOR applied to the states. Truly, I would. I would also love it if the CONS dictated that every American on Earth send me one dollar, once each year. But, just because I would prefer both of those things, does not mean that I will pretend that they are indeed in the CONS. I would indeed like it if the BOR applied to the states, but it just was not intended that way. Now, for eastbound. How do we know it wasn't intended. First, are you not aware of the incorporation doctrine?
1. If the BOR was intended to apply to the states, why did we have the inc. doctrine some 80 years after the cons came into being?
2. Why does the 1st amend say "CONGRESS shall make no law"?
3. Why did VA and others have state supported churches well after the cons came into being?
4. Did you not read the quotation from Barron v. Baltimore posted by that other guy? (I forget his name) I had mistakenly referred to that case as Mccullough v. MD. But did you read the quote?
5. If you disagree with that ruling, you still must accept as historical fact that for 80 years, the FED GOV, the Supreme Court, AND the state govs operated under the assumption that the BOR did not apply to the states. Were they all wrong for 80 years?

Good morning, Ray and Tom. Thanks for your replies.

Let me try something here:

Check this figure ground pix:

Most folks look at this and see a cup of sorts. They will see the cup no matter how many times they look at the picture.

Look at it long enough, and you can see two heads facing each other.

Some folks can only see the two heads. Some can see the two heads and can also see the cup at will.

My last reply was a verbal figure ground. Let's say that 'shall not be infringed' is the cup.

Then let's say that "the right of the people" are the two faces.

The Second Amendment is a verbal figure ground, for it also has two aspects. One aspect is an injunction against government not to get involved in infringing a particular right of the people.

The other aspect is the government's recognition and acknowledgement that the people had and have the pre-existing right to own and bear arms.

Some folks read the amendment and see only an injunction against government not to infringe on something.

They never see the 'faces' -- the fact that the people have the right to keep and bear arms.

Both aspects of the picture are present in the Second Amendment. One, the injunction against government; Two, acknowledgement and recognition of the people's pre-existing right to keep and bear arms.

Of course, the Founders already knew that, but they thought it wise to put it in writing lest future despots attempt to pursuade the people that the right to keep and bear arms is something that the government, either federal or state (by virtue of Article VI) controls.

But even if the Second Amendment were not written, the law of survival is supreme over all laws.

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