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.

"... 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."

All right then, what are those "privileges and immunities of citizens of the United States"?

As "citizens of the United States" (not a particular state), those privileges and immunities have been narrowly defined in the Slaughter House Cases as not much more than “the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligation of contracts.”

The court added, "Another privilege of a citizen of the United States is to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. Of this there can be no doubt, nor that the right depends upon his character as a citizen of the United States. The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus, are rights of the citizen guaranteed by the Federal Constitution. The right to use the navigable waters of the United States, however they may penetrate the territory of the several States, all rights secured to our citizens by treaties with foreign nations are dependent upon citizenship of the United States, and not citizenship of a State."

"One of these privileges is conferred by the very article under consideration. It is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bon a fide residence therein, with the same rights as other citizens of that State. To these may be added the rights secured by the thirteenth and fifteenth articles of amendment, and by the other clause of the fourteenth, next to be considered."

The bottom line is this. The P&I Clause of the 14th offered very little protection from rights violations by the states. The P&I Clause was harmless to the concept of Federalism.

It was the Due Process Clause of the 14th that was perverted by the courts to selectively apply the BOR to the states, something the Founding Fathers never intended.

"... giving the states the power to legislate some of those rights away."

What are you talking about? You'd better explain.

Prior to Incorporation, the states were only bound by their state constitution. For example, prior to the incorporation of the 4th amendment in 1949, the states were free to admit evidence into state court that was obtained without a search warrant.

Incorporation restricted the states' ability to infringe on rights protected by the BOR.

The second amendment, to which you refer, has never been incorporated. States are bound only by their state constitution when it comes to the RKBA.

You have it exactly right. Why don't you help me out a bit with these people who think otherwise. BTW, what I think he's saying about inc. is that once the door was opened, merely by mentioning a right, the sly and the tricky would be given leverage to take that right. It's NOT what was intended, but it's what happened. The 2nd amend is a FAB case in point. Merely mention a right, and you give the scum sucking filth pig dog whore democrats the leverage to say, "See! If you're in a militia, you can have a gun, but only if you're in the militia."

Another inconvenient truth is that the Founding Fathers never intended the BOR to apply to the states. So?

Then you agree that the article's observations on the Commerce Clause and General Welfare Clause are correct?

I'm sure there were lots of things the Founding Fathers never intended --freed slaves for one. So?

Is the author suggesting that we revert back to the Constitution of 1789, since that is the ONLY constitution the Founding Fathers INTENDED.

If the Founding Fathers intended for the Constitution that they wrote to remain intact and unaltered they would not have included provisions for amendment. Peddle the histrionics to someone else.

Glad to help, but there are those in this thread who will never be convinced by the truth.

It is true that incorporation protects a right from infringement by the states. Some look at this as a good thing and, on the surface, appears to be so.

But, two things. One, the Founding Fathers had the opportunity to "incorporate" the BOR when the were drafting the amendments. It was rejected.

Two, when an amendment is incorporated, the interpretation of that amendment is done by the USSC, and that interpretation then applies to all the states.

For example, prior to the incorporation of the 1st amendment, each state, by their individual state constitutions, defined the speech that they would protect -- federalism in action. But once the 1st amendment was incorporated, the USSC defined speech -- and that's why all state must allow nude dancing as "protected speech".

THAT'S where the problem lies. That's why we're so lucky that the 2nd amendment is not incorporated. Can you imagine the USSC defining "arms", or "bear" or "keep"? They might, for example, define "arms" as rifles only, or "bear arms" as not concealed, or "keep" as in a state armory. That interpretation would then apply to each and every state equally.

Some other problems with incorporation. 1. Why is it that the amendment that allegedly incorporates the BOR NEVER EVEN MENTIONS THE BOR??? 2. The PRIV and IMM clause. I think we would all agree (I HOPE) that the Fed gov is not entitled to set up a welfare state. It's not in the enumeration. The fed gov is not entitled to set up a dept of educat. It's not in the enumeration. Therefore, as a citizen I am IMMUNE to being taxed for welfare or edu from the fed gov. IF, as a citizen of a state, I am to enjoy, on the state level, all IMMUNITIES that I am entitled to from the fed gove, it follows to reason, that even the STATE gove may not set up a welfare program or even a school system. Surely this was not intended. People who go in for incorporation, basically say "The same rules apply to fed and state gov now." They think this somehow only applies to BOR type legislation, but where do they get that narrow view? Again, the amend does NOT say anything about the BOR. 3. The biggest problem. The amendment in question either DOES or it does NOT say, "The bor now applies to the states." We can all agree on that, I hope. But, it ABSOLUTELY POSITIVELY does NOT say "The USSC will decide exactly which rights apply and which do not, and the USSC shall make these determinations on a case by case basis as the USSC shall see fit." That much, I guarantee you the amendment did not intend, and yet, that's exactly what we have. The USSC has never once said that the bor applies to the states, as many people think. It has instead moved on a case by case basis. Scumbags.

"1. Why is it that the amendment that allegedly incorporates the BOR NEVER EVEN MENTIONS THE BOR??? "

Excellent point. When drafting the 14th amendment, it would have been very simple to word it such that the first eight amendments would "heretofore apply to the states".

The author said that was his intention, but history doesn't support it. That very same Congress subsequently passed statutes that were redundant and unnecessary had the 14th applied the BOR to the states.

Plus it took almost 100 years to "incorporate" the BOR, and still the 2nd, the 3rd, parts of the 5th, and the 7th only apply to the federal government.

"... does NOT say "The USSC will decide exactly which rights apply and which do not, and the USSC shall make these determinations on a case by case basis as the USSC shall see fit."

Yes but.

Someone has to interpret the Constitution. What is an "unreasonable" search? Do we really want Congress, which writes the statutes, interpreting "unreasonable"?

That was settled in a landmark case, Marbury v Madison in 1803:

"The critical importance of Marbury is the assumption of several powers by the Supreme Court. One was the authority to declare acts of Congress, and by implication acts of the president, unconstitutional if they exceeded the powers granted by the Constitution. But even more important, the Court became the arbiter of the Constitution, the final authority on what the document meant. As such, the Supreme Court became in fact as well as in theory an equal partner in government, and it has played that role ever since."
-- usinfo.state.gov

You are correct. This is another misconception out there. That "Federal offense" means "Serious offense." Wrong. Most federal statutes are bizarre legal cobbled together creatures involving state lines, telephone lines, or the high seas. Murder, kidnapping, arson, rape, etc. are all state matters. The best example: remember the "Mississippi Burning" civil rights murders. The state refused to move, of course, so the fed gove stepped in and convicted the killers. The charges? Depriving a citizen of his civil liberties. The G did NOT charge them with murder because they COULD NOT charge them with murder. The g's case amounted to "You deprived them of their liberties by murdering them." but there was no murder charge.

"then we wouldn't need the court taking this step by step approach."

Actually, the Constitution itself forces us to do it this way.

The USSC cannot just decree that, for example, abortion is a right protected by the Constitution. Congress cannot check with the USSC prior to writing a statute to see if it's constitutional.

It is only after the fact that a case must wend its way through the system to eventually arrive at the USSC. And, even then, the USSC may choose not to hear it.

As the cases came before it, the USSC decided that a certain right was so fundamental to the concept of liberty, that due process demanded that the right be protected by the state.

It is this "due process' clause of the 14th amendment, not the privileges and immunities clause, that is used to "incorporate" a given right.

"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"

There are many points popping up in this post. Let's hope by resolving one or two, the logic can be applied to resolving some of the others.

Here's one for today: I understand the principle of the argument that you pose, that the fedguv steps in to protect life when the state fails to.

But it is not consistent, which is my point. It is a pick and choose matter for the feds to become involved, only when it's to their advantage.

If the fedguv is going to protect life with Roe, why does it not protect life by incorporating the second amendment across the board? All state and federal gun control laws should be abolished.

We know that gun control laws deny people the right to defend their lives. Therefore, their right to life has been abolished. Is not the federal government guilty of being at war with the principles of the DOI, the same as if would be if Roe were reversed?

fortheDeclaration wrote:

>>This was Calhoun's notion that the State was itself a sovereign entity and had 'rights'to protect when it was, in fact, a part of the Federal system whose function was to protect individual rights.<<

Exactly, this is why States have their own Constitutions.
They determine how the States will protect the individual rights of State citizens from the overbearing federal government.
B4R

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Good points that need repeating.

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