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InAmericanpolitical discourse,states' rights arepolitical powers held for thestate governments rather than thefederal government according to theUnited States Constitution, reflecting especially theenumerated powers of Congress and theTenth Amendment. The enumerated powers that are listed in the Constitution includeexclusive federal powers, as well asconcurrent powers that are shared with the states, and all of those powers are contrasted with thereserved powers—also called states' rights—that only the states possess.[1][2] Since the 1940s, the term "states' rights" has often been considered aloaded term, a euphemism, or adog whistle because of its use in opposition to federally-mandated racialdesegregation[3] and, more recently,same-sex marriage andreproductive rights.[4][5]
The balance of federal powers and those powers held by the states as defined in theSupremacy Clause of theU.S. Constitution was first addressed in the case ofMcCulloch v. Maryland (1819). The Court's decision by Chief JusticeJohn Marshall asserted that the laws adopted by the federal government, when exercising its constitutional powers, are generally paramount over any conflicting laws adopted by state governments. AfterMcCulloch, the primary legal issues in this area concerned the scope of Congress' constitutional powers, and whether the states possess certain powers to the exclusion of the federal government, even if the Constitution does not explicitly limit them to the states.[6][7]
TheSupremacy Clause of the U.S. Constitution states:
This Constitution, and the Laws of the United Stateswhich shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding. (Emphasis added.)
InThe Federalist Papers, ratification proponentAlexander Hamilton explained the limitations this clause placed on the proposed federal government, describing that acts of the federal government were binding on the states and the people thereinonly if the act was in pursuance of constitutionally granted powers, and juxtaposing acts which exceeded those bounds as "void and of no force":
But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.[citation needed]
In the period between theAmerican Revolution and the ratification of theUnited States Constitution, the states had united under a much weaker federal government and a much stronger state and local government, pursuant to theArticles of Confederation. The Articles gave the central government very little, if any, authority to overrule individual state actions. The Constitution subsequently strengthened the central government, authorizing it to exercise powers deemed necessary to exercise its authority, with an ambiguous boundary between the two co-existing levels of government. In the event of any conflict between state and federal law, the Constitution resolved the conflict[6] via the Supremacy Clause ofArticle VI in favor of the federal government, which declares federal law the "supreme Law of the Land" and provides that "the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." However, the Supremacy Clause only applies if the federal government is acting in pursuit of its constitutionally authorized powers, as noted by the phrase "in pursuance thereof" in the actual text of theSupremacy Clause itself (see above).
When the Federalists passed theAlien and Sedition Acts in 1798,Thomas Jefferson andJames Madison secretly wrote theKentucky and Virginia Resolutions, which provide a classic statement in support of states' rights and called on state legislatures tonullify unconstitutional federal laws. (The other states, however, did not follow suit and several rejected the notion that states could nullify federal law.) According to this theory, the federal union is a voluntary association of states, and if the central government goes too far each state has the right to nullify that law. As Jefferson said in the Kentucky Resolutions:
Resolved, that the several States composing the United States of America, are not united on the principle of unlimited submission to their general government; but that by compact under the style and title of a Constitution for the United States and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: That to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party....each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
The Kentucky and Virginia Resolutions, which became part of thePrinciples of '98, along with the supportingReport of 1800 by Madison, became final documents of Jefferson'sDemocratic-Republican Party.[8] Gutzman argued that GovernorEdmund Randolph designed the protest in the name of moderation.[9]Gutzman argues that in 1798, Madison espoused states' rights to defeat national legislation that he maintained was a threat to republicanism. During 1831–33, the South Carolina Nullifiers quoted Madison in their defense of states' rights. But Madison feared that the growing support for this doctrine would undermine the union and argued that by ratifying the Constitution states had transferred their sovereignty to the federal government.[10]
The most vociferous supporters of states' rights, such asJohn Randolph of Roanoke, were called "Old Republicans" into the 1820s and 1830s.[11]
Tate (2011) undertook a literary criticism of a major book byJohn Taylor of Caroline,New Views of the Constitution of the United States. Tate argues it is structured as a forensic historiography modeled on the techniques of 18th-century Whig lawyers. Taylor believed that evidence from American history gave proof of state sovereignty within the union, against the arguments of nationalists such as U.S. Chief Justice John Marshall.[12]
Another states' rights dispute occurred over theWar of 1812. At theHartford Convention of 1814–15, New EnglandFederalists voiced opposition to President Madison's war, and discussedsecession from the Union. In the end they stopped short of calls for secession, but when their report appeared at the same time as news of the great American victory at theBattle of New Orleans, the Federalists were politically ruined.[13]
One major and continuous strain on the union, from roughly 1820 through the Civil War, was the issue of trade andtariffs. Heavily dependent upon international trade, the almost entirelyagricultural andexport-orientedSouth imported most of its manufactured goods from Europe or obtained them from the North. The North, by contrast, had a growing domesticindustrial economy that viewed foreign trade as competition. Trade barriers, especially protective tariffs, were viewed as harmful to the Southern economy, which depended on exports.
In 1828,Congress passed protective tariffs to benefit trade in the northern states, but that were detrimental to the South. Southerners vocally expressed their tariff opposition in documents such as theSouth Carolina Exposition and Protest in 1828, written in response to the "Tariff of Abominations".Exposition and Protest was the work ofSouth Carolinasenator and formervice presidentJohn C. Calhoun, formerly an advocate of protectivetariffs andinternal improvements at federal expense.
South Carolina'sNullification Ordinance declared that both thetariff of 1828 and thetariff of 1832 were null and void within the state borders of South Carolina. This action initiated theNullification Crisis. Passed by a state convention on November 24, 1832, it led, on December 10, to PresidentAndrew Jackson's proclamation against South Carolina, which sent a naval flotilla and a threat of sending federal troops to enforce the tariffs; Jackson authorized this under color of national authority, claiming in his 1832Proclamation Regarding Nullification that "our social compact in express terms declares, that the laws of the United States, its Constitution, and treaties made under it, are the supreme law of the land" and for greater caution adds, "that the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."
Over following decades, another central dispute over states' rights moved to the forefront. The issue ofslavery polarized the union, with the Jeffersonian principles often being used by both sides—anti-slavery Northerners, and Southern slaveholders and secessionists—in debates that ultimately led to theAmerican Civil War. Supporters of slavery often argued that one of the rights of the states was the protection of slave property wherever it went, a position endorsed by theU.S. Supreme Court in 1857Dred Scott decision. In contrast, opponents of slavery argued that the non-slave-states' rights were violated both by that decision and by theFugitive Slave Law of 1850. While historians in the 21st centuryagree on the centrality of the conflict over slavery,[14] they disagree sharply on which aspects of this conflict (ideological, economic, political, or social) were most important.[15]
Southern states had a long tradition of using states' rights doctrine since the late eighteenth century to support slavery.[16] A major Southern argument in the 1850s was that federal law to ban the expansion of slavery into the territories discriminated against states that allowed slavery, making them second-class states. In 1857 the Supreme Court sided with these states' rights supporters, declaring inDred Scott v. Sandford that Congress had no authority to regulate slavery in the territories.[17]
Jefferson Davis used the following argument in favor of the equal rights of states:
Resolved, That the union of these States rests on the equality of rights and privileges among its members, and that it is especially the duty of the Senate, which represents the States in their sovereign capacity, to resist all attempts to discriminate either in relation to person or property, so as, in the Territories—which are the common possession of the United States—to give advantages to the citizens of one State which are not equally secured to those of every other State.[18]
Southern states argued against "states' rights" when it benefited them in the context offugitive slave laws. For example, Texas challenged some northern states having the right to protect fugitive slaves, with the argument that this would make the institution null once a particular slave had crossed into afree state. The question was pivotal in the case ofDred Scott v. Sandford.[19]
The historianJames McPherson[20][a] noted that Southerners were inconsistent on the states' rights issue, and that Northern states tried to protect the rights of their states against the South during theGag Rule[b] and fugitive slave law controversies. Contemporary political thinkers likeKarl Marx also noted this inconsistency regarding the Confederacy's actions during the war:
The attempts of the Confederacy to annexMissouri andKentucky, for example, against the will of these states, prove the hollowness of the pretext that it is fighting for the rights of the individual states against the encroachments of the Union. On the individual states that it considers to belong to the "South" it confers, to be sure, the right to secede from the Union, but by no means the right to remain in the Union.[21]
The historian William H. Freehling[22] noted that the South's argument for a state's right to secede was different from Thomas Jefferson's, in that Jefferson based such a right on the unalienable equal rights of man. The South's version of such a right was modified to be consistent with slavery, and with the South's blend of democracy and authoritarianism.[22] HistorianHenry Brooks Adams explains that the anti-slavery North took a consistent and principled stand on states' rights against federal encroachment throughout its history, while the Southern states, whenever they saw an opportunity to expand slavery and the reach of their political influence, termedSlave Power, often conveniently forgot the principle of states' rights—and fought in favor of federal centralization:
Between the Slave Power and states' rights there was no necessary connection. The Slave Power, when in control, was a centralizing influence, and all the most considerable encroachments on states' rights were its acts. The acquisition and admission of Louisiana; the Embargo; theWar of 1812; the annexation of Texas "by joint resolution" [rather than treaty]; thewar with Mexico, declared by the mere announcement of PresidentPolk; theFugitive Slave Law; theDred Scott decision—all triumphs of theSlave Power—did far more than either tariffs or internal improvements, which in their origin were also southern measures, to destroy the very memory of states' rights as they existed in 1789. Whenever a question arose of extending or protecting slavery, the slaveholders became friends of centralized power, and used that dangerous weapon with a kind of frenzy. Slavery in fact required centralization in order to maintain and protect itself, but it required to control the centralized machine; it neededdespotic principles of government, but it needed them exclusively for its own use. Thus, in truth, states' rights were the protection of the free states, and as a matter of fact, during the domination of the Slave Power,Massachusetts appealed to this protecting principle as often and almost as loudly asSouth Carolina.[23]
Sinha[24] and Richards[25] both argue that the Southerners only advocated states' rights when they disagreed with a policy. Examples given are a states' right to engage in slavery or to suppress freedom of speech. They argue that it was instead the result of the increasing cognitive dissonance in the minds of Northerners and (some) Southern non-slaveowners between the ideals that the United States was founded upon and identified itself as standing for, as expressed in the Declaration of Independence, the Constitution of the United States, and the Bill of Rights, and the reality that the slave-power represented, as what they describe as an anti-democratic, counter-republican, oligarchic, despotic, authoritarian, if not totalitarian, movement for ownership of human beings as the personal chattels of the slaver. As this cognitive dissonance increased, the people of the Northern states, and the Northern states themselves, became increasingly inclined to resist the encroachments of the Slave Power upon their states' rights and encroachments of the Slave Power by and upon the federal government of the United States. The Slave Power, having failed to maintain its dominance of the federal government through democratic means, sought other means of maintaining its dominance of the federal government, by means of military aggression, by right of force and coercion, and thus, the Civil War occurred.
InTexas v. White,74 U.S.700 (1869) the Supreme Court ruled that Texas had remained a state ever since it first joined the Union, despite claims to have joined theConfederate States of America; the court further held that theConstitution did not permitstates to unilaterallysecede from the United States, and that the ordinances of secession, and all the acts of the legislatures within seceding states intended to give effect to such ordinances, were "absolutelynull" under the constitution.[26]
A series of Supreme Court decisions developed the state action constraint on theEqual Protection Clause. The state action theory weakened the effect of the Equal Protection Clause against state governments, in that the clause was held not to apply to unequal protection of the laws caused in part by complete lack of state action in specific cases, even if state actions in other instances form an overall pattern of segregation and other discrimination. Theseparate but equal theory further weakened the effect of the Equal Protection Clause against state governments.[citation needed]
WithUnited States v. Cruikshank (1876), a case which arose out of theColfax Massacre of Black residents contesting the results of a Reconstruction-era election, the Supreme Court held that theFourteenth Amendment did not apply to theFirst Amendment orSecond Amendment to state governments in respect to their own citizens, only to acts of the federal government. InMcDonald v. City of Chicago (2010), the Supreme Court held that the Second Amendment right of an individual to "keep and bear arms" is incorporated by the Due Process Clause of the Fourteenth Amendment, and therefore fully applicable to states and local governments.[citation needed]
Furthermore,United States v. Harris (1883) held that the Equal Protection Clause did not apply to an 1883 prison lynching on the basis that the Fourteenth Amendment applied only to state acts, not to individual criminal actions.
In theCivil Rights Cases (1883), the Supreme Court allowed segregation by striking down theCivil Rights Act of 1875, a statute that prohibited racial discrimination in public accommodation. It again held that the Equal Protection Clause applied only to acts done by states, not to those done by private individuals, and as the Civil Rights Act of 1875 applied to private establishments, the Court said, it exceeded congressional enforcement power underSection 5 of the Fourteenth Amendment.
By the beginning of the 20th century, greater cooperation began to develop between the state and federal governments and the federal government began to accumulate more power. Early in this period, a federal income tax was imposed, first during theCivil War as a war measure and then permanently with theSixteenth Amendment in 1913. Before this, the states played a larger role in government.
States' rights were affected by the fundamental alteration of the federal government resulting from theSeventeenth Amendment, depriving state governments of an avenue of control over the federal government via the representation of each state's legislature in theU.S. Senate. This change has been described by legal critics as the loss of acheck and balance on the federal government by the states.[27]
Following theGreat Depression, theNew Deal, and thenWorld War II saw further growth in the authority and responsibilities of the federal government. The case ofWickard v. Filburn allowed the federal government to enforce theAgricultural Adjustment Act, providing subsidies to farmers for limiting their crop yields, arguing agriculture affected interstate commerce and came under the jurisdiction of theCommerce Clause even when a farmer grew his crops not to be sold, but for his own private use.
After World War II, PresidentHarry Truman supported a civil rights bill and desegregated the military. The reaction was a split in theDemocratic Party that led to the formation of the "States' Rights Democratic Party"—better known as theDixiecrats—led byStrom Thurmond. Thurmond ran as the States' Rights candidate for president in the1948 election, losing to Truman. The Dixiecrats carried Louisiana, Mississippi, Alabama, and South Carolina.
During the 1950s and 1960s, thecivil rights movement was confronted by the proponents in the Southern states ofracial segregation andJim Crow laws who denounced federal interference in these state-level laws as an assault on states' rights.
ThoughBrown v. Board of Education (1954) overruled thePlessy v. Ferguson (1896) decision, the Fourteenth and Fifteenth amendments were largely inactive in the South until theCivil Rights Act of 1964 (42 U.S.C. § 21)[28] and theVoting Rights Act of 1965. Several states passedInterposition Resolutions to declare that the Supreme Court's ruling in Brown usurped states' rights.
There was also opposition by states' rights advocates to voting rights atEdmund Pettus Bridge, which was part of theSelma to Montgomery marches, that resulted in theVoting Rights Act of 1965.
In 1964, the issue of fair housing in California involved the boundary between state laws and federalism.California Proposition 14 overturned the Rumsford Fair Housing Act in California and allowed discrimination in any type of housing sale or rental.[29]Martin Luther King Jr. and others saw this as a backlash against civil rights, while actor and future (1967) governor ofCaliforniaRonald Reagan gained popularity by supporting Proposition 14.[30] The U.S. Supreme Court'sReitman v. Mulkey decision overturned Proposition 14 in 1967 in favor of the Equal Protection Clause of the Fourteenth Amendment.
Conservative historians Thomas E. Woods Jr. and Kevin R. C. Gutzman argue that when politicians come to power they exercise all the power they can get, in the process trampling states' rights.[31] Gutzman argues that the Kentucky and Virginia resolutions of 1798 by Jefferson and Madison were not only responses to immediate threats but were legitimate responses based on the long-standing principles of states' rights and strict adherence to the Constitution.[32]
Another concern is the fact that on more than one occasion, the federal government has threatened towithhold highway funds from states which did not pass certain articles of legislation. Any state which lost highway funding for any extended period would face financial impoverishment, infrastructure collapse or both. Although the first such action (the enactment of a national speed limit) was directly related to highways and done in the face of a fuel shortage, most subsequent actions have had little or nothing to do with highways and have not been done in the face of any compelling national crisis. An example of this would be the federally mandateddrinking age of 21, upheld inSouth Dakota v. Dole. Critics of such actions feel that the federal government is upsetting the traditional balance between itself and state governments.
More recently, the issue of states' rights has come to a head when theBase Realignment and Closure (BRAC) Commission recommended thatCongress and theDepartment of Defense implement sweeping changes to theNational Guard by consolidating some Guard installations and closing others. These recommendations in 2005 drew strong criticism from many states, and several states sued the federal government on the basis that Congress and the Pentagon would be violating states' rights should they force the realignment and closure of Guard bases without the prior approval of the governors from the affected states. AfterPennsylvania won a federal lawsuit to block the deactivation of the111th Fighter Wing of thePennsylvania Air National Guard, defense and Congressional leaders chose to try to settle the remaining BRAC lawsuits out of court, reaching compromises with theplaintiff states.[33][34]
Current states' rights issues include thedeath penalty,assisted suicide,same-sex marriage,gun control, andcannabis, the last of which is in direct violation of federal law. InGonzales v. Raich, the Supreme Court ruled in favor of the federal government, permitting theDrug Enforcement Administration (DEA) to arrest medical marijuana patients and caregivers. InGonzales v. Oregon, the Supreme Court ruled the practice ofphysician-assisted suicide inOregon is legal. InObergefell v. Hodges, the Supreme Court ruled that states could not withhold recognition to same-sex marriages. InDistrict of Columbia v. Heller (2008), the United States Supreme Court ruled that gun ownership is an individual right under theSecond Amendment of the United States Constitution, and the District of Columbia could not completely ban gun ownership by law-abiding private citizens. Two years later, the court ruled that the Heller decision applied to states and territories via the Second and14th Amendments inMcDonald v. Chicago, stating that states, territories and political divisions thereof, could not impose total bans on gun ownership by law-abiding citizens.
These concerns have led to a movement sometimes called theState Sovereignty movement or "10th Amendment Sovereignty Movement".[35]
TheTenth Amendment of the United States Constitution has been used as a prominent tool of invoking nullification, a common tactic of those that believe in the primacy of States' rights. The Tenth Amendment reads as follows:
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.[36]
Notably, the Tenth Amendment has been successfully utilized to nullify restrictive federal laws pertaining togun rights,[37]immigration,[38]cannabis,[39] and more. Additionally, organizations such as theTenth Amendment Center seek to utilize the Tenth Amendment to achieve, "Liberty throughdecentralization".[40] The Tenth Amendment center chiefly focuses on encouraging state representatives to submit bills that nullify federal laws by providing model legislation on their website that provides a rubric for state legislators to follow.[41]
In 2009–2010 thirty-eight states introduced resolutions to reaffirm the principles of sovereignty under the Constitution and the 10th Amendment; 14 states have passed the resolutions. These non-binding resolutions, often called "state sovereignty resolutions" do not carry the force of law. Instead, they are intended to be a statement to demand that the federal government halt its practices of assuming powers and imposing mandates upon the states for purposes not enumerated by the Constitution.[7]
The Supreme Court'sUniversity of Alabama v. Garrett (2001)[42] andKimel v. Florida Board of Regents (2000)[43] decisions allowed states to use arational basis review for discrimination against the aged and disabled, arguing that these types of discrimination were rationally related to a legitimate state interest, and that no "razorlike precision" was needed." The Supreme Court'sUnited States v. Morrison (2000)[44] decision limited the ability of rape victims to sue their attackers in federal court. Chief JusticeWilliam H. Rehnquist explained that "States historically have been sovereign" in the area of law enforcement, which in the Court's opinion required narrow interpretations of the Commerce Clause and Fourteenth Amendment.
Kimel,Garrett andMorrison indicated that the Court's previous decisions in favor of enumerated powers and limits on Congressional power over the states, such asUnited States v. Lopez (1995),Seminole Tribe v. Florida (1996) andCity of Boerne v. Flores (1997) were more than one time flukes. In the past, Congress relied on theCommerce Clause and theEqual Protection Clause for passing civil rights bills, including theCivil Rights Act of 1964.[28]
Lopez limited the Commerce Clause to things that directly affect interstate commerce, which excludes issues like gun control laws, hate crimes, and other crimes that affect commerce but are not directly related to commerce.Seminole reinforced the "sovereign immunity of states" doctrine, which makes it difficult to sue states for many things, especially civil rights violations. TheFlores "congruence and proportionality" requirement prevents Congress from going too far in requiring states to comply with the Equal Protection Clause, which replaced the ratchet theory advanced inKatzenbach v. Morgan (1966). The ratchet theory held that Congress could ratchet up civil rights beyond what the Court had recognized, but that Congress could not ratchet down judicially recognized rights. An important precedent forMorrison wasUnited States v. Harris (1883), which ruled that the Equal Protection Clause did not apply to a prison lynching because the state action doctrine applies Equal Protection only to state action, not private criminal acts. Since the ratchet principle was replaced with the "congruence and proportionality" principle byFlores, it was easier to revive older precedents for preventing Congress from going beyond what Court interpretations would allow. Critics such asAssociate JusticeJohn Paul Stevens accused the Court ofjudicial activism (i.e., interpreting law to reach a desired conclusion).[citation needed]
The tide against federal power in the Rehnquist court was stopped in the case ofGonzales v. Raich, 545 U.S. 1 (2005), in which the court upheld the federal power to prohibit medicinal use ofcannabis even if states have permitted it. Rehnquist himself was a dissenter in theRaich case.[citation needed]
Since the 1940s, the term "states' rights" has often been considered aloaded term ordog whistle because of its use in opposition to federally-mandated racialdesegregation[3] and, more recently,same-sex marriage andreproductive rights.[4][5]
During the heyday of thecivil rights movement, defenders ofracial segregation[45][c] used the term "states' rights" as acode word in what is now referred to as dog-whistle politics: political messaging that appears to mean one thing to the general population but has an additional, different, or more specific resonance for a targeted subgroup.[46][47][48] In 1948 it was the official name of the "Dixiecrat" party led bywhite supremacist presidential candidateStrom Thurmond.[49][50] Democratic GovernorGeorge Wallace ofAlabama, who famously declared in his inaugural address in 1963, "Segregation now! Segregation tomorrow! Segregation forever!" later remarked that he should have said, "States' rights now! States' rights tomorrow! States' rights forever!"[51] Wallace, however, claimed that segregation was but one issue symbolic of a larger struggle for states' rights. In that view, which some historians dispute, his replacement ofsegregation withstates' rights would be more of a clarification than aeuphemism.[51]
In 2010, some claimed thatTexas GovernorRick Perry's use of the expression "states' rights" was "reminiscent of an earlier era when it was a rallying cry against civil rights."[52] During an interview withThe Dallas Morning News, Perry made it clear that he supports the end of segregation, including passage of theCivil Rights Act. The Texas president of theNAACP, Gary Bledsoe, stated that he understood that Perry was not speaking of "states' rights" in a racial context, but others still claimed to feel offended by the term because of its past misuse.[52]
John Randolph.
