Wednesday, June 16

Rehabilitating States’ Rights

Over the centuries since the ratification of the Constitution in 1789 and the Bill of Rights in 1791, the principle of States’ powers and States' rights – that States enjoy certain rights and prerogatives upon which the Federal government may not intrude – has gained a bad reputation. One could reasonably date the origin of this bad association from 1948, when Strom Thurmond accepted the presidential nomination of the break-away Democrats constituting the States’ Rights Party (“Dixiecrats”). The Dixiecrats were tainted because they advocated a radical doctrine of States’ rights and powers in opposition to a Federal government they viewed as bent on coercive nationwide racial integration, in violation, they argued, of the Ninth and Tenth Amendments to the US Constitution.  To this day, the very phrase “States’ rights” conjures up memories, not only of the Dixiecrats’ walking out of the Democratic Party in 1948, but also of Arkansas governor Orval Faubus’ opposition to Supreme-Court-ordered school desegregation, and of Alabama governor George Wallace in 1963 declaiming “Segregation now! Segregation tomorrow! Segregation forever!” All were based on their reading of the Ninth and Tenth Amendments. However, the imperious conduct of the Trump Administration vis a vis a whole spectrum of issues – immigration enforcement, environmental regulation, urban crime, and LGBTQIA rights, to name just the most salient examples – bids fair to not only rehabilitate the reputation of the these long-defamed Amendments, but – the irony is exquisite! – to transform the 9th and 10th Amendments into powerful tools for progressive action.

Signing the Constitution

The real reasons for Southern conservatives’ ostensible devotion to the States' rights and powers Amendments are pretty transparent:  in antebellum times, the Southern States used the Ninth and Tenth to assert State sovereignty over the issue of slavery; in the middle 1900s, they similarly used them to assert State sovereignty over the issue of segregation. But those are both instances of bad reasons being cited for obscuring a genuine and legitimate theoretical issue arising from federalist practice. (I mean “federalist” in the sense of the division of government into three echelons – Federal, State, and local – not the Federalist Party.) Furthermore, a respectable argument can be made – and has been made literally since the original constitutional convention at Philadelphia in 1787 – in favor of the Southerners’ more robust view of State sovereignty.  This difference is usually referred to as a disagreement between Federalists – people advocating a strong central Federal government (Washington, Adams, Hamilton, Chief Justice Marshall, et al.) – and Anti-Federalists or Jeffersonians (Jefferson, George Mason, Patrick Henry, et al.). The Federalists were led and exemplified by “high” Federalist Alexander Hamilton, who wanted to abolish the States as such and divide the Nation basically into a multitude of bite-sized administrative districts that would be little more than glorified counties in a Continent-sized “hyper-State” (something opposed even by more moderate Federalists like John Adams), and no-less-radical Jeffersonian John C. Calhoun, who envisioned the Nation as an 18th-century European Union or even United Nations.

John C. Calhoun
Alexander Hamilton

This disagreement, in turn, originated in differing answers to a few deceptively straightforward questions:  when the States ratified the US Constitution, what power relations were the ratifiers affirming between the Federal and State governments? Post-ratification, did the locus of Federal power now reside exclusively in the Federal government? Or did the States retain that power, so that whatever Federal power the national government enjoyed could be revoked and withdrawn back to the originating State? (Think of it like your kids using your car:  you loan them the keys for the evening, but you still own the car, and so can rescind the loan. But if they buy the car from you … Did the ratification of the Constitution cede power to the Federal government, or merely loan it?) Given that the States came first chronologically – indisputably true – does that temporal order of precedence imply that State sovereignty is inalienable and irrevocable, rather like your family tree? (All these questions were exhaustively addressed in John C. Calhoun's Disquisition on Government. Calhoun came down firmly on the inviolability of States' rights, and was one of the architects of the Southern policy of "nullification" whereby States could simply ignore Federal laws the nullifying State deemed unconstitutional. President Andrew Jackson came perilously close in 1832 to dissolving the South Carolina legislature, sending in the military, and governing South Carolina directly from Washington, DC, when the South Carolina legislature passed an "ordinance of nullification" putting the Federal government on notice that the State would not comply with the tariffs of 1828 and 1832. Confrontation was avoided only because Congress passed the Compromise Tariff of 1833.) Never in the 228 years since the ratification of the Constitution “proper” (i.e., without Amendments) has this question been definitively settled. Even the blood of 700,000 Americans (counting non-combatants) in the Civil War did not settle it:  the Confederacy merely surrendered … which is not the same thing.

(Speaking of the Confederacy ... did you ever wonder why the secessionists called their new nation the "Confederate States of America"? Yes, "United States of America" was already taken. But even if that name had not already been in use, the Confederacy almost certainly would not have used it. Why? Because the Confederacy was predicated on a "strong" doctrine of States' rights, per Calhoun's vision. So the States that seceded considered themselves as being merely confederated, not united -- again, in somewhat the same sense that the nations constituting the European Union are confederated, not united:  Brexit was the European equivalent of secession, something explicitly provided for in the EU constitution, but not its American counterpart. So when the legislature of South Carolina passed its ordinance of secession in 1860, it was attempting to do the mid-19th-century American equivalent of Brexit.)

I certainly do not propose to settle these questions here. If immortals like Jefferson, Hamilton, Madison, Mason, and Marshall could not arrive at consensus, I would only embarrass myself by trying to do so. Instead, I will focus on the consequences of having the 9th and 10th in the Constitution. Initially, the fear, especially with Jeffersonians / Anti-Federalists, was that, with a Bill of Rights without the States' powers and rights Amendments, it would be possible to infer that the first 8 Amendments were an exhaustive list of all the powers the people were granted, and thus permit the conclusion that all other powers were retained by the Federal government. To avoid the conclusion that the first 8 Amendments were an exhaustive list of powers, the 9th and 10th Amendments were inserted, asserting that there were certain unenumerated rights and powers not mentioned in the Bill of Rights. (The 9th Amendment serves the same purpose vis a vis unenumerated rights.) What are the unenumerated powers reserved to the States? The powers reserved to the States are those powers that are not explicitly delegated to the Federal government. (This is known as the doctrine of reserved powers.) So … herewith a list of the proposed violations that have thus far been proposed by officials in the Trump Administration, usually by Trump himself:

o Coercing State and local authorities to use their State and local police powers to hunt down and to detain illegal immigrants (held unconstitutional in Printz v. United States)

o The “blanket” withholding of all Federal funds from municipalities that decline to cooperate with ICE in the location and detention of illegal immigrants (though there are certain very discrete and specific areas where Federal funds can constitutionally be withheld in areas directly related to certain programs, e.g., withholding Federal highway funds from States that refuse to raise the legal drinking age)

o Sending troops ... regular Army? Illinois National Guard (but Trump made no mention of Federalizing them)? maybe Blackwater "merks"? ... into Chicago to deal with gun violence

The list goes on. These are just representative examples of proposed “facially” unconstitutional acts by the Federal government.  (To save space, I do not go into the details of the case law.) More relevant for present purposes are areas where the States may constitutionally act independently of the Federal government, thanks to the 9th Amendment's doctrine of States’ unenumerated rights and the 10th-Amendment's doctrine of States' reserved powers. The following actions and policies, if undertaken by the States and if justified by explicit reference to the 9th and 10th Amendments concerning States' exercise of constitutionally legitimate States' rights and powers, would do much to repair the damage of the "slave power" in the 1860s and the advocates of racial segregation a century later, undo the defamatory effects of such previous abuses, and thereby rehabilitate the whole theory and practice of States' rights:

Signing the Declaration of Independence

o Enforcement, at the State level, of environmental, clean-water, and clean-air legislation and the imposition, at the State level, of penalties for violators (along the lines of State- and municipal-level commitments to the Paris accords on the environment)

o State-level regulation of reproductive issues like birth control, abortion, and specifications for women’s clinics

o Regulation of marijuana use, both therapeutic and recreational, e.g., Washington state and Colorado

o State-level restrictions on oil prospecting via “fracking”

o Prohibitions of discrimination against trans persons and sexual-orientation minorities, e.g., Washington state

Just as the 9th Amendment makes it impossible to list all unenumerated rights -- otherwise, they would not be unenumerated! -- so also the language of the 10th Amendment makes it impossible for the same reason to list the unenumerated powers reserved to the States. Taking full advantage of the State powers reserved under the 10th Amendment, and with no or only minimal Federal support, almost certainly would be an expensive undertaking, especially in exceptionally fraught cases like abortion rights. (Of course, we may hope that Roe and Casey remain valid law, but with conservative Republicans in power, some caution is warranted. Besides, I believe Justice Ruth Bader Ginsburg's recent remarks about Roe possibly being a premature decision merit serious thought.) The point is that, though there are obvious limitations, both fiscal and technical (e.g., environmental pollution does cross State lines, as do "fracking"-induced earthquakes), the Trump Administration's hard-core animosity toward even the most common-sense-reasonable and enlightened policies in the areas of immigration, the environment, and LGBTQ / trans rights may be the last word -- for now -- at the Federal level. But thanks to the 9th and 10th Amendments and the once-reviled doctrine of States' rights / reserved powers, that animosity need not be the last word for the States. A half-century ago, these two Amendments were illegitimately used to deny black kids a decent education. Perhaps now they can be legitimately used to ensure all kids a clean environment and equality. In the long run, this may be a healthy trend, anyway, short-term frustrations notwithstanding. Maybe it is time for the United States to become the United States again.

There are alternatives.

James R. Cowles

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