States' rights

States' rights are a specific set of rights and political powers reserved for U.S. states in the politics of the United States and constitutional law. They are guaranteed by the Tenth Amendment to the United States Constitution, under the United States Bill of Rights. It 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. Now the debate surrounds the issue of what powers Congress can grant to the Federal Government, and if those are not explicitly stated by the Constitution, should they be granted to the States.

Development of states' rights to 1865

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, and yet these two spheres of government did not cross. Neither the State nor the Federal Government was a higher authority, they simply ruled in different arenas. The problem was what happens if they do conflict.

When the Federalist party 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 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 became the bedrock principles of Jefferson's Republican party. Those supporters, such as John Randolph who insisted loudest on states' rights were called "Old republicans" into the 1820s and 1830s. The Jeffersonian principles were often cited by secessionists on the debates that led to the 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. However, historian Henry Adams explained that before 1860 slavery was even more a centralizing force that stood in opposition to states' rights. [Adams, John Randolph (1882) pp: 178-79]

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; the War of 1812; the annexation of Texas "by joint resolution" [rather than treaty]; the war with Mexico, declared by the mere announcement of President Polk; the Fugitive Slave Law; the Dred Scott decision-—all triumphs of the slave 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 needed despotic 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 as South Carolina.

States' rights since 1865

The Civil War itself and its Constitutional amendments settled 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. Following World War II, during the Presidency of Lyndon B. Johnson, there was a great increase of Federal regulations and power. However, since his Presidency, there has been great debate about the amount of power the Federal Government should have, as Americans have become much more cautious about these Federal regulations. States' rights are also defined in the body of the constitution itself.

The civil rights movement

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". Some observers pointed out that a plausible solution to the dilemma posed by "civil rights" vs. "states' rights" would have been the passage of civil-rights laws on a state rather than a federal level; when few as if any such laws were actually introduced during this time (though many were proposed, and passed, later), critics proclaimed the states' rights movement to be a smoke screen for continuing racial discrimination.

Contemporary debates

The extent of states' rights remains a hotly-debated topic to this day. The use (or non-use) of the death penalty is currently decided by individual states. Other controversial subjects entering the states' rights debate include the authority to legalize assisted suicide, the authority to legalize gay marriage, and the authority to legalize medical marijuana, the last of which is in direct contravention of current federal U.S. law. Conservatives opposed the principle of states' rights when in 2005 they passed legislation for federal intervention in the Terri Schiavo case. Conservatives also protested when the Supreme Court in 2005 in Kelo v. New London took a states' rights position on Eminent domain; conservatives wanted federal courts to overrule state and local government when private property was involved. Most recently conservatives protested a 2006 Supreme Court decision Gonzales v. Oregon upholding doctor-assisted suicide in Oregon.

Another concern is the fact that on more than one occasion, the Federal Government has threatened to withhold highway funds from states unless state governments pass certain articles of legislation. Critics of such actions feel that when the Federal Government does this they upset the balance between the state and Federal governments.

The most important intellectual offspring of the States' Rights philosophy was born in the mind of President Woodrow Wilson. His belief in 'self-determination' was a natural outgrowth of States rights ideas, just as W.E.B. DuBois's idea of a new African-American culture grew out of his thesis on Jefferson Davis. Hence, States' Rights is an important Constitutional idea with historical and cultural relevance. States' Rights, Local control, and self-determination are concepts which relate to which level of government is to be preferred. A population can be divided and subdivided down to units of one person, and the conflict of a Federal Government, State governments, and even lesser local governments is one that will continue to excite political leaders and voters as long as political power is divided. Many argue that a healthy tension between local and national power is another healthy check or balance in the totality of government in the United States, in order to diversify democratic powers and preserve minority rights, property rights, civil rights, and other rights.

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.

References

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 Imperios, 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)