Skip to comments.The Federalism Debate [And 'States Rights']
Posted on 10/28/2004 6:03:10 PM PDT by tpaine
I. The Tenth Amendment and Enumerated Powers
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."
II. The Demise of the Doctrine of Enumerated Powers
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.
III. Federalism and "States' Rights"
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.. -- As long as the powers do not violate the US Constitution.
-- And, we cannot Amend the Constitution in ways that are repugnant to its basic principles. [This is why the income tax is seen as unconstitutional, as was prohibition.]
The 3/5 clause was a compromise to accomplish the Constitution with the hope that eventually slavery would die.
That is why it was banned in the NorthWest Ordinence and importation of slaves was also banned.
The South's view changed when cotten came into play, and slavery went from an evil that had to be eventually removed to a positive good.
This was admitted by Stevens himself.
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.(emphasis added)
By the way, with that statement, Stephens went against the Dred Scott decision, in which Taney stated that the Founding Father's never intended for slavery to be ended.
No, because it is denying someone of their life, hence it takes on a Federal aspect.
The punishments may differ, but the taking of an innocent life must be viewed as a crime.
The States cannot legalize it.
If you produce some legislation or documentation that the South formally denounced the DOI, I'll stand down. Until then, I consider your claim inadmissible.
You have the speech given by the Vice President stating exactly that!
What part of the speech did you not understand?
The Pre-Civil War South rejected the principles of the DOI (as noted in Stephens speech)
The DOI was rejected because slavery in the Pre Civil War South was seen as a positive not a negative.
As Stephens himself notes regarding the Declaration generation, they had hoped to see the eventual end of slavery, hence, they made compromises regarding the Constitution.
The Pre Civil War South rejected the notion that all men were created equal and thus were of a different mind then the Southerners of Jefferson's day.
Facts are stubborn things.
But the fedguv can? Didn't Roe v Wade over-ride state's rights to ban abortion except in some instances? Seems to me that the states were handling it much better than the fedguv is. Doesn't abortion on demand, a decision of the USSC, offer far less protection to life than what the states offered?
Maybe I'm mis-understanding you. I still think Roe was a case where the fedguv over-stepped its enumerated powers.
Doesn't even make sense.
He got his facts straight. By the 1830's the South was in deep denial of the founding principles.
They are not "conservatives" in the modern political sense of the term.
They are not "conservatives" in the modern political sense of the term.
The Colonial Southerners did not doubt that all men were created equal in the sense of life, liberty and the pursuit of happiness, that is why they saw slavery as an evil
Remember Jefferson wanted to accuse the King of bringing slavery to the colonies?
Slavery thus, was never seen as contradicting the Declaration.
The Pre-Civil War South did reject the premise of all men were created equal, hence slavery became a positive good to be fought for.
Make sense now?
Here is the father of anti-Declaration movement, Calhoun.
We have already seen Calhoun, in his speech on the Oregon bill, ridiculing the Declaration of Independence for saying that al l men are created equal. All men are not created. With the exception of Adam and Eve, all human beings come into the world as infants, in a state of entire dependency. Yet Calhoun himself speaks of "man" properly occupying a place "in the scale of beings much above the brute creation." He is then at one with Jefferson in believing that "creation" is represented by a "scale of being." And if "man" as such can occupy that elevated place on that scale, it must be also be the case in principle that "all men" can occupy it. Since the Declaration speaks both of "barbarous ages" and " merciless savages" it is clear that all men do not occupy in fact the place that all occupy in principle. But Calhoun will deny that the equality of man on the scale of creation has the significance assigned to it by Jefferson.
The natural equality proclaimed in the Declaration has as its corollary that legitimate civil society is a voluntary association. The Massachusetts Bill of Rights provides us with this gloss on the doctrine of the Revolution:
The body-politic is formed by a voluntary association of individuals; it is a social compact by which the whole people covenants with each citizen and each citizen with the whole people that all shall be governed by certain laws for the common good.
The reason that the body-politic results from the voluntary agreement of individuals is that
All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining safety and happiness.
Human beings, according to the doctrine of the Revolution, are equally possessed of natural rights. Because of this equality, it is their voluntary agreement that makes them members of a body politic. This voluntary agreement is however an agreement in accordance with reason. Human beings can act voluntarily because they can see--that is, understand--the difference between a body politic within which personal liberty is secure, and property is safe, and a despotic one, in which these conditions are not met, and in which therefore safety and happiness are not possible. Free civil society is in accordance with human nature, despotism is not. Safety and happiness are rational, not random concepts, natural rights are not merely the conditions upon which men enter civil society. They are also the guidelines of constitutionalism--the ever present principles by which the distinction between free and despotic government is preserved. According to Calhoun, however, neither our membership in society, nor society's subjection to government, involves rationality or voluntary action in the slightest degree. In one of the most revealing passages of the Disquisition, he writes that government "is not a matter of choice ... Like breathing, it is not permitted to depend upon our volition .
"Calhoun's denial of natural equality is pro tanto and ipso facto a denial of man's nature as a free and reasonable being. In this, of course, he anticipates the metaphysical determinism of contemporary behavioral science....
When in 1861 eleven southern States attempted to secede from the Union, they did so in obedience to a legal theory that was derived from Calhoun. For the right of secession was nothing more than the sanction for the concurrent majoritarianism they had learned from Calhoun.
That they were exercising this "right" for the sake of a policy of extending chattel slavery--the ultimate denial of minority rights--did not strike them as a paradox, much less as a contradiction. This was because they had been instructed that "the right of a minor party" was never a matter of ratiocination.
For such knowledge there was always a "better guide than reason. But the "better guide than reason" turned out--not surprisingly, given Calhoun's Darwinian presuppositions--to be war.
Calhoun's 1850 prophecy of the coming war in one of his last great Senate speeches is equally remarkable for its clarity of vision and for its blindness. He knew that the south would attempt to withdraw from the Union, if the future of slavery were seriously in jeopardy. And he knew t hat the Union would fight to preserve itself. But he did not see that the Union had an interest in human freedom that was different from its interests in commerce, manufactures, or land. He did not see this because, although a patriot . himself, there was no room in his theory of the human soul for love of country, any more than for love of justice. But then according to his account of the soul in the Disquisition, neither was there room in that same theory for the political science of John C. Calhoun.
The point I was making was that if it could be proven that life began at conception then the Federal gov't would have an obligation to defend it.
What they did in Roe vs Wade was deal with life on the premise of viability, could it survive by itself.
Hence, the first 3 months unlimited abortions were allowed.
After that, they were to be more restrictive based on other factors (life of the mother)
Never were they to be totally free as the pro-abortion movement would have us believe.
Now, Roe vs Wade may have been as bad a decision as the Dred Scott decision which stated that the slave was a non-person.
The point is that no state can ignore murder as a crime.
If the state of Texas stated that it was ópen season'on people with red hair and if anyone committed a crime against them, the state would not prosecute them, then the federal gov't would be obligated to step in.
While judically the states handle the crimes, the 'right'of life is protected by the Federal gov't insuring every state and local gov't protects it equally.
If the Federal gov't itself rejected this principle then the people would be justified in overthrowing that Federal gov't as being at war with the principles of the Declaration
Yes, but in order to do so, the Federal gov't had to defend abortion by stating that was being aborted was not a person.
Had the Court decided that a fetus was a human being abortion would have to be outlawed in every state, (with the possible exceptions of the mothers life being in danger)
Now, the point is that the Federal gov't acts as a balance to the states, to insure that a local tyranny doesn't develop.
The People through the states keep an eye on the Federal gov't to make sure it is not becoming tryannical.
Federalism is about checks and balances, where different levels of gov't are in place to keep an eye on the other.
By the way, this is why a Constitutinal amendment is going to be needed to define marriage.
Here the Federal gov't will put a check on the states abusing (through their courts) the definition of marriage.
They don't like to engage the issues on such clearly defined terms.
bump for later, thanks for the invite.
The Federalist did point out that the BOR ought to be superfluous, but the anti's seem to have stronger arguments after a couple hundred years...
hmmm, "powers reserved" seems to bump up on the idea of state's rights, after a fashion. After all, the people delagated certain of their powers to the states, who delegated certain of their powers to the con con and therefor to the federal gov't. The issue is what powers did the people retain absolutely for themselves, perhaps.
more time for thought later.