States Rights

States rights are grounded in the United States Constitution under the 10th Amendment to the United States Constitution. The 10th Amendment states that “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.”

The interpretation of the 10th Amendment has been argued over the entire history of the United States. Where some interpret the Constitution to have a strict construction, meaning that the federal government is permitted pass laws in strict compliance within the specific language of the constitution others have interpreted the Constitution to allow the federal government to regulate and make laws that are “necessary and proper” to achieving the goals set forth in the “enumerated powers” of Article 1, section 8 of the United States Constitution.

The enumerated powers are a list of duties that Congress is entrusted with. These consist of an 18 clauses outlining the duties of Congress. These include the authority to raise an army, to borrow money, lay taxes, coin money, create a post office, declare war, and create inferior federal courts, among others. Those individuals who stand for strict construction of the constitution believe that the authority given to Congress through these 18 clauses are black and white and that the federal government does not have the authority to expand Congress’s influence. Those who follow the expansionist view specifically focus on clause 18 of section 8 and the “necessary and proper” clause.

The necessary and proper clause, as stated in Article 1, section 8, clause 18 states that “the congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

What this means is that the federal government may create laws and regulations that are “necessary and proper” to achieve the goals of the federal government concerning the enumerated powers. A great example of the “necessary and proper” clause at work is by looking at the commerce clause of Article 1, section 8, clause 3 of the United States Constitution.

The commerce clause; under Article 1, section 8, clause 3 states that Congress has the authority “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” A States rights, strict constructionist, view would look at this as being black and white, having the interpretation follow logically that Congress may regulate interstate travel on and goods that have been put in the stream of commerce. A more expansive viewpoint would be that of the holding of Wickard v. Filburn where the Supreme Court found that the effects of a farmer growing too much wheat on his property, in the aggregate, would affect interstate commerce and, thus, Congress had the right to regulate it.

This argument over the rights designated to Congress through Article 1, section 8 of the United States Constitution and the 10th Amendment are the main points of argument held by those who follow states rights; and a strict constructionist view, and those who follow an expansionist view of the Constitution.

States Rights in United States History up to the Civil War

The argument of States rights began even before the drafting of the Constitution. Prior to the Constitution the United States government was bound by the Articles of Confederation. The Articles of Confederation created in it a strong respect for states rights and left a very weak federal government. Subsequently, during the drafting of the Constitution, one of the aims was to strengthen the federal government. Many proponents felt that states rights should be afforded greater weight and in that regard the 10th Amendment was drafted to appease those individuals concerned with centralized power.

One of the first instances where the idea of states rights in the Constitution came to the for forefront was during the Washington administration and the dispute over the creation of a national bank. Alexander Hamilton, then the secretary of the treasury, intended to use the enumerated powers, along with the necessary and proper clause, to create a national bank of the United States. Advocates of States rights such as Thomas Jefferson and James Madison argued that this was not within the strict construction of the Constitution. Washington sided with Hamilton and upon the creation of the national bank essentially split the founders into two different sects and, in essence, was a large contributing factor to the creation of the first major parties in American politics; the Federalists, controlled by Washington and Adams, and the Republicans; dominated by Jefferson and Madison. The Federalists would argue on the platform of implied powers whereas the Republicans were advocates for “strict construction” and states’ rights.

The argument over implied powers and states’ rights came to a head once again during the Adams administration when the Federalist controlled Congress adopted the Alien and Sedition laws which prohibited actions, even verbal comments, against the government. The Republicans argued that this was a direct violation of the 1st Amendment to the Constitution and Jefferson and Madison countered the acts by independently drafting the Kentucky and Virginia resolutions which were meant to assert state rights and send a message to the federal government that the States had a right to nullify laws proposed by the federal government to be too far reaching. Essentially the resolutions claimed that the federal government served at the will of the states and that states rights were paramount to those proposed by the federal government.

The issue of States rights versus implied powers was resurrected once more during the Jefferson administration and the Louisiana purchase. Strict constructionists who advocated for states rights and the limitations on the powers of the federal government opposed the purchase, stating that it was not within the powers granted to the federal government to expand nation beyond its current borders. Ironically, these arguments were brought against Jefferson, one of the original proponents for states rights and strict construction.

The implied powers of Congress were once again tested during the nullification acts of 1832. This issue came about due to tariffs that were imposed on goods that were being imported into the United States. In the current economic climate the southern states relied on goods from Europe and from the northern states in order to meet their economic needs. Because of stiff competition with Europe, Congress, at the behest of the northern states imposed tariffs upon European goods shipped into the country. The result was that the southern states were either reduced to dealing only with the northern states for necessary goods or paying higher prices for European goods. In response South Carolina, under the policies of John C. Calhoun, proposed a re-formulation of the Virginia & Kentucky resolutions. The new resolution essentially stated that the people in each state were sovereign and only by their will was there any power given to the state of federal governments. As a result South Carolina refused to obey the tariff acts of 1828 or 1832 and in response President Jackson asked Congress for the right to send in the navy and army for enforcement of the law.

The issue involving states rights versus implied powers really came to a head in the issue of slavery. Advocates of the implied powers claimed that the issue of slavery was one for the federal government to decide, as was done through the Compromise of 1820 and 1850. Advocates for states rights claimed that it was for each individual state to decide whether it should permit slavery within its borders and argued that the federal government was permitted to adopt rules and regulations but could not designate the policies that affected the states. States rights advocates won a battle on this issue with the holding in the Dredd Scott decision whereby Justice Taney declared that "The Government of the United States had no right to interfere for any other purpose but that of protecting the rights of the slave owner.”

The 14th Amendment

With the end of the civil war came Amendments to the Constitution banning slavery and calling for the equal treatment of African-Americans throughout the United States. In addition, the 14th Amendment attempted to lay to rest any idea of states rights usurping the Constitutional guarantees prescribed by the federal government. In this the 14th Amendment contains, what is known as, the equal protection clause.

The equal protection clause is stated in section 1 of the Amendment and notes that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. This clause solidified the Constitution, and the Amendments to the Constitution, as being, not only a federal right, but subjected the Amendments to the States as well.

States Rights and The Civil Rights Era

Probably the largest issue of states rights post-civil war came about during the civil rights movement. In response to Jim Crow, the federal government began a series of reforms, beginning with the Supreme Court decision in Brown v. The Board of Education, which officially overturned the decision in Plessy v. Ferguson and declared that “separate but equal”, was not constitutional.

In response many proponents against integration declared that the federal government did not have the authority to require integration by the states as it would be a violation of state rights. States refused to integrate and it was not until a show of force by the federal government that the states began to recede from their previous stance.

States Rights and the Commerce Clause

One of the most contentious issues involving states rights is the issue involving the commerce clause. The federal government has been able to use the commerce clause in a number of situations to expand the authority of the federal government into areas where, without the necessary and proper clause, would be deemed to be an unconstitutional intrusion upon states rights. The federal government has been able to use the commerce clause to enter almost any situation where something is put into the stream of commerce. As discussed above, the case of WIckard v. Filburn took this to extreme lengths arguing the “aggregate” view.

Many issues have come to the forefront lately involving the death penalty, assisted suicide, gay marriage, gun rights and the health care individual mandate.

Currently the health care individual mandate that is one of the cornerstones of the Obama administrations health care bill is working its way up to the Supreme Court of the United States. Currently the appellate courts have been split as to the constitutionality of the issue. States rights advocates for strict construction advocate that the Constitution’s enumerated powers, even with the expansive view of the commerce clause through the “necessary and proper” clause do not afford the federal government to mandate that an individual be required to pay for health care. In the alternative those who are against the states rights assertions argue that the commerce clause, along with the necessary and proper clause permit the federal government to mandate that each individual in this country pay for their own health car or face a penalty. It is yet to be determined where the high court will rule on this argument but it is a strong possibility that states rights advocates will be disappointed.