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.

The states have MANY powers not granted to congress. Such as, again, making you pay tax money to support a state run church. Shall I post the four or five Madison Hamilton quotes about the almost limitless power of the states again?
Yes, the states have only so much power re: the militia, but if a state wants to regulate firearms for one of a billion diff reasons that have nothing to do with the mil, they may do so. Again, is there ANYBODY, PERSON, THING, OR INSTITUTION that supports this reading of yours?

Yes, the states have only so much power re: the militia,

So far, so good.

but if a state wants to regulate firearms for one of a billion diff reasons that have nothing to do with the mil, they may do so.

How can they ban firearms without affecting the militia?

Because as of right now, there is no fed law that I know of requiring anybody to be armed in any way or to participate in any way with any militia at anytime in any place in any manner whatsoever. Also, it is perfectly reasonable for the fed gove to say you, you, and you are in the mil as of now, we will supply you with guns bullets and uniforms. Therefore the state could take your private guns and not interfere with such a law. Again, none of this is what I like or prefer, but that's the way it is. And AGAIN, considering that we are on a topic (Guns) that has been hotly debated for at least 50 years now by tens of thousands of authorities and courts, etc., I'd like to know, again, if there is anybody on God's green earth that subscribes to this theory other than you.

How can a State disarm its citizens without violating the above Clauses and the Second Amendment?
333 posted by Ken H

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Well put.
You will NOT get a rational answer from any 'states rights' advocate on this forum.
337 tpaine

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"Marshalling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the 'right to keep and bear arms' is, as the Amendment's text suggests, a personal right."
-- Justice Clarence Thomas, Printz v US
340 Ken H

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As we see, the attempted rationalization is based on ONE DOZEN FOX in the HENHOUSE SUPREME COURT CASES which claim the BOR does not apply to the states.

Next we'll be asked to believe that our government man is here to help.

"Marshalling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the 'right to keep and bear arms' is, as the Amendment's text suggests, a personal right."

Is it your position that a State can violate a personal right?

Again -- I thought you were NOT relying on the BOR for the gun rites?

Article I, Sec. 8 is sufficient to keep the States from endangering national security by disarming the Militia. Do you agree?

Didn't I JUST cover this??? Didn't 7 of the original 13 states have state supported churches? Again -- the states could indeed ignore the BOR and they did indeed ignore the BOR. You just admitted that you are aware of the case law. Are you? For 100 years the states, the fed gov, and the supreme court allowed the states to violate personal rights all the time.

Obviously I don't agree. And again -- nobody in the entire history of the globe has ever agreed. Have you found anybody yet?

I've never said there was case law supporting my position. I'm arguing based on the text in Article I, Sec. 8.

Do you agree that the Militia in 1787 consisted of all able bodied men?

Did the Founders consider an armed citizenry necessary to national security?

Does it make sense that the Founders assigned control of the Militia to Congress and also meant that States could endanger national security by disarming citizens?

Not only is there no case law, there's no human being supporting this argument. It's perhaps not the way I would have done it, but the fed could always arm the mil the same way it armed the regular army. And again, IF!!!!!!!!!!!!! the fed gov passed a law such that it required all men be armed for mil service, I've already said I'd like it. No such law exists now, and the states have the power to regulate firearms.

Ken H wrote:

With your view of the Constitution, the right to defend your family and yourself with a firearm can be criminalized by a State.
And I know you just hate it!

You just don't understand Ken!
If you wrap yourself in our flag, define yourself as a member for a long time, claim not to be a faker or a troll and love guns, you can say most anything to establish that States can infringe upon our Constitutional RKBA's.

It's for the cause! The cause of 'states rights' is more important than any individuals right to self defense.
- You must get with the agenda. Big brother knows best,

Eastbound:

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?

Ken H:

Is it your position that a State can violate a personal right?

Government is the controlled, and presumably just, infringement of rights in the service of preserving and defending the rights of others. So, to state categorically that recognition of a preexisting right implies that the right may never be infringed by the state seems mistaken.

Actually, all rights are inherent in the person, weather currently recognized or not. Preexistence should not be a criteria by which we elevate the importance of one right and in the converse, devalue some other right.

Do you think a State may legitimately disarm its citizens?

Is that not the current situation with the First and Fourth Amendments vs the Second?

What are your thoughts on whether USSC should incorporate the Second as well?

We may have a point of agreement that I missed earlier. From #316:

The whole doctrine of inc. is completely bogus, invented like much of sc law. IOW, the BOR still does NOT apply to the states. However, if the SC insists on saying that ANY part of the BOR applies to the states, then I DEMAND that the whole thing apply, most especially including the 2nd amend.

The USSC has already said that the First and Fourth Amendments apply to the States.

Are you in favor of USSC incorporating the Second?

Do you think a State may legitimately disarm its citizens?

Philosophically, I think it is unjust for the state to remove the means to defend oneself. I'm not a fan of prior restraint in general. Pragmatically, we have a system of government in which power is delegated to the state via a constitution. If the people of the state delegate authority to disarm its citizens then it is legally legitimate for the state to do so.

We usually react to this philosophic/pragmatic disparity by saying, "I don't agree with the law, but that's the law." We then go about changing that law in the political arena.

Database:
Preexistence should not be a criteria by which we elevate the importance of one right and in the converse, devalue some other right.

Ken H:
Is that not the current situation with the First and Fourth Amendments vs the Second?

My comments were given from a perspective of philosophy. Your description of the uneven treatment of the 1st and 4th vs 2nd ammendments is a practical issue of government and law. Is their treatment is unequal? Yes. Do I think that's right? No. However, the unequal treatment is certainly not based on whether the issues in the respective ammendments preexisted the BOR.

What are your thoughts on whether USSC should incorporate the Second as well?

The bill of rights is less a list of personal rights, as limitations on the federal government in order to protect individual rights in relation to federal government power. So, I view the incorporation of the BOR by the USSC an overstepping of its power. It is essentially making up laws.

Database wrote:

Pragmatically, we have a system of government in which power is delegated to the state via a constitution.
If the people of the state delegate authority to disarm its citizens then it is legally legitimate for the state to do so.

Wrong. The 'people' have no such authority to so delegate, -- under our republican form of Constitutional government.

As Justice Marshal noted in Marbury, 1803:

"Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument."

It defies all common sense to write a Constitution for a United States, then claim that separate States can ignore its Amendments protecting individual rights.
It is constitutionally illegitimate for a state to infringe on our RKBA's.

Absolutely and positively. Nothing could be more corrupt than the SC picking and choosing which parts of the BOR it wants to incorporate. If the BOR was incorporated by the 14th amendment, then the WHOLE thing was incorporated. As I noted somewhere else: either the 14th was meant or it was NOT meant to make the BOR apply to the states, but it WAS DAMN SURE NOT MEANT to mean the SC gets to decide which rights apply, to whom, when, and get to do so at its leisure. That much I can be sure of.

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