States' rights
States' rights refers to the idea that
U.S. states possess certain
rights and
political powers in the
politics of the United States and
constitutional law. These rights are guaranteed by the
Tenth Amendment to the
United States Constitution, under the
United States Bill of Rights. The states' rights concept is usually used to defend a state law that the
federal government of the United States seeks to override, or a perceived violation of the bounds of federal authority.
The principle of federal powers over those powers held by the states was laid out by
John Marshall, the third
Chief Justice of the
Supreme Court of the United States. In the seminal case of
McCulloch v. Maryland, Marshall asserted, based on the
supremacy clause of the
United States Constitution, that the laws of the federal government were generally paramount over the laws of the separate state governments. The debate surrounds the issue of what powers Congress possesses and can grant to the federal government, and whether the States nonetheless possess those powers to the exclusion of the federal government even if the Constitution does not explicitly grant them to the States.
Before the institution of the
United States Constitution, the
Articles of Confederation created a government composed purely of a collection of states cooperating together, with no overruling or federal government. However, the Constitution implemented the federal government to rule over the nation as a whole, with a vague boundary between the two co-existing "levels" of government. In the event a state's law should overlap federal law, the Constitution resolved the conflict in the Supremacy Clause in Article VI in favor of the federal government, which declares federal law the "supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
When the Federalists passed the
Alien and Sedition Acts in 1798,
Thomas Jefferson and
James Madison secretly wrote the
Kentucky and Virginia Resolutions that gave the classic statement of states' rights. The 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 aConstitution 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, theresiduary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts areunauthoritative, 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 became the bedrock principles of Jefferson's
Democratic-Republican Party. Those supporters, such as
John Randolph, who insisted loudest on states' rights, were called "Old republicans" into the 1820s and 1830s.
Another dispute occurred over the
War of 1812. At the
Hartford Convention,
New England states voiced opposition to
President Madison and the war, and discussed
secession from the Union.
Nullification
One major and continuous strain on the union, from roughly
1820 through the Civil War, was the issue of trade and
tariffs. Heavily dependent upon trade, the almost entirely
agricultural and
export-oriented South imported most of its manufactured needs from Europe or obtained them from the North. The North, by contrast, had a growing domestic industrial 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, the
Congress passed protective tariffs to benefit trade in the northern states, but were detrimental to the South. Southerners vocally expressed their tariff opposition in documents such as the
South Carolina Exposition and Protest in 1828, written in response to the "
Tariff of Abominations".
Exposition and Protest was the work of
South Carolina senator John C. Calhoun, formerly an advocate of protective
tariffs and internal improvements at federal expense.
South Carolina's
Nullification Ordinance declared the
tariff of 1828 and
1832 null and void within the state borders of
South Carolina. It began the
Nullification Crisis. Passed by a state convention on
November 24 1832, it led, on
December 10, to President
Andrew Jackson's proclamation against South Carolina, which sent a naval flotilla and a threat of sending government ground troops to enforce the tariffs.
Civil War
Over the following decades, another dispute over states' rights moved to the forefront. The issue of
slavery polarized the union, with the principles espoused by Jefferson and others often being cited by secessionists on the debates that ultimately led to the
American Civil War. Slave supporters often argued that one of the rights of the states was the protection of slave property wherever it went, a position endorsed by the Supreme Court in the
1857 Dred Scott decision.
The
Civil War itself and its Constitutional amendments revolved around whether America would become an indestructible union, or a collection of states under a Federal Government. By the beginning of the 20th Century, greater cooperation began to grow between the State and Federal Governments, and soon the Federal Government began to gain more power. It was early in this development that the National Income Tax was implemented. Before this, the State had been the highest form of government to which people had to pay taxes, but now another level was added, creating a sense of higher authority for the Federal Government. Soon following this implementation was the Great Depression and then World War II, during which time the Federal Government continued to take on more authority and responsibility.
During the
civil rights movement of the 1950s and 1960s, states' rights again become strongly associated with Southern racial politics, with proponents of
racial segregation and
Jim Crow laws denouncing federal interference in these state-level policies. In 1948, pro-segregationist
Strom Thurmond broke with the Democratic Party and formed the
States' Rights Democratic Party, also known as the "Dixiecrats." Critics proclaimed the states' rights movement to be a smoke screen for continuing racial discrimination.
In 1964, the issue of fair housing in California involved the boundary between state laws and federalism. Ronald Reagan supported
California Proposition 14, which overturned the Rumsford Fair Housing Act and violated the federal 14th amendment.
Martin Luther King was one of the few who saw this as a backlash against civil rights.
[ Pillar of Fire, Taylor Branch, page 242] The U. S. Supreme Court's
Reitman Vs. Mulhey decision overturned Proposition 14 in 1967 in favor of the equal protection clause.
Another concern is the fact that on more than one occasion, the Federal Government has threatened to
withhold highway funds from states that 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. Critics of such actions feel that when the Federal Government does this they upset the traditional balance between the state and Federal governments.
Recently, references to states' rights have generally been opportunistic, with whatever party or interest that likes what states are doing arguing for states' rights and vice versa. States' rights was a slogan used by last-ditch defenders of segregation in the 1960s, such as
George Wallace. Wallace frequently said that he should have stood in the schoolhouse door saying, "States' rights now ... states' rights tomorrow ... states' rights forever."
In 1980,
Ronald Reagan said "I believe in states' rights" when giving a speech at
Neshoba County fairgrounds near Philadelphia, Mississippi.
[ Los Angeles Times, Aug. 13, 1980, p. D7, Shades of the Klan: Reagan's Talk of State's Rights is Scary, Andrew Young.] At the same event, Mississippi Senator
Strom Thurmond declared: "We want that federal government to keep their filthy hands off the rights of the states."
But the ground has shifted to general issues of federal versus state power, especially to moral issues such as abortion, which conservatives want decided at the state level because they control numerous states.
Current states' rights issues include the
death penalty,
assisted suicide,
gay marriage, doctor-assisted suicide in
Gonzales v. Oregon, and the
medical use of marijuana, the last of which is in violation of federal law.
In 2005 many protested the Supreme Court's
Kelo v. New London decision on
Eminent domain. The main issue in the Kelo decision was whether the city of New London, Connecticut could seize private property to create jobs, but the Court ruled that States could regulate the rules for eminent domain used by cities.
The Supreme Court's Garrett
[Board of Trustees of the University of Alabama et al. v. Garrett et al., U. S. Supreme Court, decided February 21, 2001] and Kimel
[Kimel v. Florida Board of Regents, U. S. Supreme court, decided January 11, 2000] decisions were based on the idea that a state has "sovereign immunity" and can not be sued by individuals of that state without that state's consent. The Supreme Court's United States v. Morrison
[United States v. Morrison, U. S. Supreme Court, decided May 15, 2000] decision used states' rights arguments to limit the rights of rape victims by limiting federalism.
In one respect the Garrett and Kimel decisions used reasoning similar to but not the same as the
United States v. Cruikshank decision after the
Colfax Massacre in that Cruikshank applied the
equal protection clause only to government action, not to government inaction. The Garrett and Kimel decisions would not apply the equal protection clause to government action or inaction for the disabled and elderly.
The U. S Supreme Court's Morrison decision also resembles the reasoning behind the Cruikshank decision. Justice
Rehnquist said "if Congress may regulate gender-motivated violence, it would be able to regulate murder."
[Rehnquist's decision, United States v. Morrison, U. S. Supreme Court, decided May 15, 2000]
Secondary sources
*Ann Althouse. "Why Talking about "States' Rights" Cannot Avoid the Need for Normative Federalism Analysis"
Duke Law Journal, Vol. 51, 2001
* Lynn A. Baker & Ernest A. Young, "Federalism and the Double Standard of Judicial Review" , 51
Duke Law Journal (2001), which argues at 143-49 : "To many, [the notion of states' rights] stands for an anachronistic (and immoral) preference for the race-based denial of essential individual rights....".
*Daniel A. Farber. "States' Rights and the Union: Imperium in Imperio, 1776-1876"
Constitutional Commentary, Vol. 18, 2001
*Russell Kirk,
Randolph of Roanoke: A Study in Conservative Thought (1951)
* Forrest McDonald.
States' Rights and the Union: Imperium in Imperio, 1776-1876 (2002)
* Norman K. Risjord,
The Old Republicans: Southern Conservatism in the Age of Jefferson (1965]
* Manisha Sinha; "Revolution or Counterrevolution?: The Political Ideology of Secession in Antebellum South Carolina"
Civil War History, Vol. 46, 2000 in JSTOR
Primary sources
*Frederick D. Drake, ed.
States' Rights and American Federalism: A Documentary History (1999)
