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The Federalism Debate [And 'States Rights']
Cato Institue ^ | 10/28/04 | Rodger Pilon

Posted on 10/28/2004 6:03:10 PM PDT by tpaine

I. The Tenth Amendment and Enumerated Powers

The Tenth Amendment states: "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."

By its terms the amendment tells us nothing about which powers are delegated to the federal government, which are prohibited to the states, or which are reserved to the states or to the people. To determine that, we have to look to the centerpiece of the Constitution, the doctrine of enumerated powers.

That doctrine is discussed at length in the Federalist Papers. But it is explicit as well in the very first sentence of Article 1, section 1, of the Constitution ("All legislative Powers herein granted . . .") and in the Tenth Amendment's reference to powers "not delegated," "prohibited", and "reserved."

Plainly, power resides in the first instance in the people, who then grant or delegate their power, reserve it, or prohibit its exercise, not immediately through periodic elections but rather institutionally--through the Constitution. The importance of that starting point cannot be overstated, for it is the foundation of whatever legitimacy our system of government can claim.

What the Tenth Amendment says, in a nutshell, is this:
if a power has not been delegated to the federal government, that government simply does not have it. In that case it becomes a question of state law whether the power is held by a state or, failing that, by the people, having never been granted to either government.

At bottom, then, the Tenth Amendment is not about federal vs. state, much less about federal-state "partnerships," block grants, "swapping," "turnbacks," or any of the other modern concepts of intergovernmental governance. It is about legitimacy.
As the final member of the Bill of Rights, and the culmination of the founding period, the Tenth Amendment recapitulates the philosophy of government first set forth in the Declaration of Independence, that governments are instituted to secure our rights, "deriving their just powers from the consent of the governed."
Without that consent, as manifest in the Constitution, power is simply not there.

It is the doctrine of enumerated powers, then, that gives content to the Tenth Amendment, informs its theory of legitimacy, and limits the federal government. Power is granted or delegated by the people, enumerated in the Constitution, and thus limited by virtue of that delegation and enumeration.
The Framers could hardly have enumerated all of our rights--a problem the Ninth Amendment was meant to address.
They could enumerate the federal government's powers, which they did to restrain that government. The doctrine of enumerated powers was meant to be the principal line of defense against overweening government. The Bill of Rights, added two years after the Constitution was ratified, was meant as a secondary defense.

Yet today the federal government exercises powers not remotely found in the Constitution, leading lawyers and laymen alike to say, increasingly, that those powers are illegitimate. How then did we get to this point, where the federalism debate is increasingly a debate about the very foundations of our system of government?
I have discussed that question at length elsewhere. Let me simply summarize the answer here, then turn to an issue that seems to concern the subcommittee, and not without reason--the connection, historically and prospectively, between federalism and "states' rights."

II. The Demise of the Doctrine of Enumerated Powers

Our modern regulatory and redistributive state--the state the Framers sought explicitly to prohibit--has arisen largely since 1937, and primarily through just two clauses in the Constitution, the Commerce Clause and the General Welfare Clause respectively. It is striking that this is so, for if the Framers had meant for Congress to be able to do virtually anything it wanted through those two simple clauses, why would they have bothered to enumerate Congress' other powers, much less defend the doctrine of enumerated powers throughout the Federalist Papers?
That is the question that cries out for explanation.

The explanation, of course, is that the Framers intended no such thing. The modern state arose through judicial legerdemain, following Franklin Roosevelt's notorious 1937 Court-packing scheme.

In a nutshell, the Commerce Clause, which gives Congress the power to regulate commerce among the states, arose out of concern that the free flow of commerce among the states might break down if states, as under the Articles of Confederation, had the power to erect protectionist measures on behalf of indigenous enterprises. Thus, its principal aim was to ensure the free flow of commerce by giving Congress the power to regulate, or make regular, such interstate commerce.
Not remotely did the Framers intend that the clause would be converted from a shield against state abuse--its use in the first great Commerce Clause case, Gibbons v. Ogden -- into a sword, enabling Congress, through regulation, to try to bring about all manner of social and economic ends.
Yet today, following the Supreme Court's reversal in 1937, that is just what has happened as Congress claims power to regulate anything that even "affects" interstate commerce, which in principle is everything.

The General Welfare Clause of Article 1, section 8, was also intended as a shield, to ensure that Congress, in the exercise of any of its enumerated powers, would act for the general rather than for any particular welfare.
Here, however, Hamilton stood opposite Madison, Jefferson, and others in thinking that the clause amounted to an independent, enumerated power--albeit limited to serving the general welfare. But as Congressman William Drayton noted in 1828, if Hamilton were right, then whatever Congress is barred from doing because there is no power with which to do it, it could accomplish by simply appropriating the money with which to do it.
That, of course, is precisely what happened, which the Court sanctioned when it came down on Hamilton's side in 1936, then a year later went Hamilton one better by saying that although the distinction between general and particular welfare must be maintained, the Court would not itself police that distinction.
Congress, the very branch that was redistributing with ever-greater particularity, would be left to police itself.

With the Court's evisceration of the doctrine of enumerated powers, the modern regulatory and redistributive state poured through the opening. One result of the subsequent explosion of federal power, of course, was the contraction of state power where the two conflicted--and the attendant federalism dilemmas.
At the same time, individual liberty contracted as well--the preservation of which was supposed to be the very purpose of government.
And finally, questions about constitutional legitimacy never did go away. As government grew, the idea that a Constitution designed for limited government had authorized that growth of power became increasingly difficult to sustain.

III. Federalism and "States' Rights"

But what about the sorry history of "states' rights" as a doctrine that southern states invoked by way of defending slavery and then, after the Civil War, the reign of Jim Crow? Does this not give weight to the question, "Why doesn't Washington trust the states?" Indeed it does, but here too there has been substantial misunderstanding over the years, with a seminal Supreme Court case at its core.

The tragic compromise that led the Framers to accept slavery in their midst is well known. It took a civil war to abolish that institution, and the Civil War Amendments to secure the legal rights of the freed slaves.
Unfortunately, no sooner had those amendments been ratified than the principal vehicle for insuring substantive rights against state action, the Privileges and Immunities Clause of the Fourteenth Amendment, was eviscerated by a deeply divided Court in the Slaughter-House cases.
The clause has never been successfully revived.

On Blackstone's view, the clause referred to our "natural liberties." The Civil Rights Act of 1866, which Congress reenacted in 1870, just after the Fourteenth Amendment was ratified, made it clear that the clause was meant to protect the very rights Jim Crow went on to deny.

The demise, then, of the Privileges and Immunities Clause had nothing to do really with the Tenth Amendment or the doctrine of enumerated powers. It was a blatant case of judicial abdication that eviscerated the clause, thereby leaving the freed slaves in the South to the mercies of state legislatures.

Nor is there anything in current efforts to revive the Tenth Amendment and the doctrine of enumerated powers that should give pause--provided only that we are clear, and the judiciary is clear, that the Fourteenth Amendment gives the courts, through section 1, and the Congress, through section 5, the power to negate state actions that deny their citizens the privileges and immunities of citizens of the United States.

Were the Congress to move to do that, the promise of the Civil War Amendments would at last be realized, not in opposition to federalism, but in harmony with it as perfected through those amendments.


TOPICS: Constitution/Conservatism
KEYWORDS: 10thamendment; cato; federalism; federalistpapers; stateshavenorights; statesrights; tenthamendment
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To: tpaine
"Are you saying that Article I, Section 9 is also binding on the states by the Supremacy Clause?"

"Always was. All of the Constitution & its Amendments are the "Law of the Land"."

Then answer my "riddle me this" in post #194.

221 posted on 10/30/2004 2:26:58 PM PDT by robertpaulsen
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To: tpaine
It's good to see you conceding my point.

As usual, you're seeing what you want to see. It's been my point all along.

In fact, that preamble states clearly: -- "all or any of the Articles, when ratified" -- will be "part of said Constitution".

What are you quoting from? The Preamble states: "THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution".

But just keep telling yourself how goodly you read.

222 posted on 10/30/2004 4:18:52 PM PDT by inquest (We have more people patrolling Bosnia's borders than we have patrolling our own borders)
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To: inquest

With every post you show off your nitpicking idiocy.

The complete preamble to our BOR's reads:


THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution:

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz..

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution....

FREDERICK AUGUSTUS MUHLENBERG
Speaker of the House of Representatives.

JOHN ADAMS, Vice-President of the United States,
and President of the Senate.
ATTEST,

JOHN BECKLEY, Clerk of the House of Representatives.
SAM A. OTIS Secretary of the Senate


223 posted on 10/30/2004 4:42:19 PM PDT by tpaine (No man has a natural right to commit aggression on the equal rights of another. - T. Jefferson)
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To: robertpaulsen

Already did. -- Check the reply to 194.


224 posted on 10/30/2004 4:45:07 PM PDT by tpaine (No man has a natural right to commit aggression on the equal rights of another. - T. Jefferson)
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To: tpaine
I quote the part of the Preamble that's relevant to the discussion, and you call it nitpicking. Yes, with every post you do indeed show off your idiotic habit seeing only what you want to see, and ignoring or dismissing whatever facts you find inconvenient.

The first paragraph indicates, beyond doubt, that the "declaratory and restrictive clauses" it introduces apply only to the powers granted to the federal government by the Constitution. There's your context.

225 posted on 10/30/2004 5:25:50 PM PDT by inquest (We have more people patrolling Bosnia's borders than we have patrolling our own borders)
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To: inquest
inquest wrote:

I quote the part of the Preamble that's relevant to the discussion, and you call it nitpicking.

You made the erroneous claim:

The explicitly stated context of the Bill of Rights (as explained in the Preamble thereto) makes it obvious to anyone who knows how to read, that it's specific to the federal government.

I read good, and neither the preambles context, nor it's actual words, make your conclusion in any way 'obvious'.
In fact, that preamble states clearly:
-- "all or any of the Articles, when ratified" -- will be "part of said Constitution".
-- A Constitution that specifically says in Art VI it is the "Law of the Land". -- The "Laws of any State to the Contrary notwithstanding".
In context, your position is made ludicrous.

The first paragraph indicates, beyond doubt, that the "declaratory and restrictive clauses" it introduces apply only to the powers granted to the federal government by the Constitution. There's your context.

Inquest, -- with every post you show off your idiotic habit of seeing only what you want to see, and ignoring or dismissing whatever facts you find inconvenient.

226 posted on 10/30/2004 5:50:39 PM PDT by tpaine (No man has a natural right to commit aggression on the equal rights of another. - T. Jefferson)
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To: tpaine
You've yet to say how the claim is erroneous. The fact that something is part of the Constitution doesn't mean it applies to the states, as you yourself have acknowledged in regard to Section 9. You not only ignore facts that are inconvenient - you ignore even your own words when you find them inconvenient.
227 posted on 10/30/2004 6:11:53 PM PDT by inquest (We have more people patrolling Bosnia's borders than we have patrolling our own borders)
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To: tacticalogic
Back to your questions, tl. They pertain to the duties, responsibilities, obligations, and accountability part of the equation of being free. Let me begin by stating the obvious:

It is reasonable thing that we all have a part to play in creating and maintaining a neutral, safe, free-passage zone in public places in order that we can travel from point A to point B relatively secure in the knowledge that we will not be molested, robbed, detained, or done harm to in any way during the trip.

As the distance between Point A and Point B shortens, say from 20 miles out in the wide open spaces and a couple of blocks in a tightly-populated city, the rules change a little.

In that we have the right to self-determination and freedom of association, we can choose the environment we want to live in. We can contract down some of our rights temporarily in one environment/location and pick them up again in another.

The laws of Commerce are germain to your questions. I have to respect the laws and contracts-in-common that are in force at a time preceeding my arrival. If I don't like the laws, I will set up shop where those laws don't apply and will be sure to be a powerful influence at the city council and county board to insure that the local custom is maintained.

Now, if I were a resident in a community where beer was sold and the city or county wanted to ban the sale of beer, I would have no choice but to sell beer (if I were a beer merchant) and get cited. Then I would have to argue in court that I have been deprived of my rights. Regardless of the outcome, that is the process. Chances are that I would end up owning the city. Heh.

In another instance, let's take the stoopid smoking bans that are sweeping the country. That is an outright violation of private property rights. The state has no compelling interest, as there are no certifiable studies that point to a high probability that second-hand smoke is dangerous to your health. On the contrary, the SCOTUS already trash-canned as fraudulent, the premier statistical study that anti-smokers use to bludgeon city and town councils with to get their bans enacted. Fact is there are other studies that actually show that second-hand smoke does NOT effect your health in any measurable negative way.

I just happen to live in a community where there is no such ban in restaurants, etc., so I have no active interest in pursuing this in court. But I am pretty certain anyone with even a smattering of knowledge would be able to break the ban, and at great expense to the city. But alas, all cowards in the face of fascism. It's common sense that a proprietor should have the choice of whether or not to allow smoking or non-smoking. Let the marketplace decide. There's room for all. (more later.)

228 posted on 10/30/2004 6:24:32 PM PDT by Eastbound ("Neither a Scrooge nor a Patsy be")
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To: inquest
You made the erroneous claim:

The explicitly stated context of the Bill of Rights (as explained in the Preamble thereto) makes it obvious to anyone who knows how to read, that it's specific to the federal government.

I read good, and neither the preambles context, nor it's actual words, make your conclusion in any way 'obvious'.

In fact, that preamble states clearly:
-- "all or any of the Articles, when ratified" -- will be "part of said Constitution".
-- A Constitution that specifically says in Art VI it is the "Law of the Land". -- The "Laws of any State to the Contrary notwithstanding".

You've yet to say how the claim is erroneous.

The bold sentences above 'say' that very clearly, mr nitpicker.

The fact that something is part of the Constitution doesn't mean it applies to the states, as you yourself have acknowledged in regard to Section 9.

You're dreaming about what I "acknowledged".
-- You not only ignore facts that are inconvenient - you ignore everyones words when you find them inconvenient. -- Your generic, nitpicking complaints are becoming a joke on FR. Find some new lines.

229 posted on 10/30/2004 6:32:39 PM PDT by tpaine (No man has a natural right to commit aggression on the equal rights of another. - T. Jefferson)
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To: tpaine
I dreamt you wrote this?:

"Section 9 is specific to Congress, Section 10 to States."

Likewise I said that the Bill of Rights is specific to the federal government, and you "rebutted" by saying that the Bill of Rights is part of the Constitution. But so is Section 9. If the fact that it's part of the Constitution contradicts my statement, then it contradicts yours equally.

Have fun digging yourself out of that hole.

230 posted on 10/30/2004 7:20:40 PM PDT by inquest (We have more people patrolling Bosnia's borders than we have patrolling our own borders)
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To: inquest

That 'hole' is only in your head.

After all, in overall context, you're trying to prove the point that States have the 'right' to infringe upon our individual freedoms.

You're dreaming, not me.


231 posted on 10/30/2004 7:56:06 PM PDT by tpaine (No man has a natural right to commit aggression on the equal rights of another. - T. Jefferson)
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To: tpaine
So you're out of arguments, as I surmised.

#230 sums up your contradictions quite clearly, and I invite any reader to look it over. As for you, I'll let you have the last word, unless you shock me by making an actual point.

232 posted on 10/30/2004 8:05:03 PM PDT by inquest (We have more people patrolling Bosnia's borders than we have patrolling our own borders)
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To: inquest

Whatever -- feel free to pretend you're not fleeing the field.


233 posted on 10/30/2004 8:09:03 PM PDT by tpaine (No man has a natural right to commit aggression on the equal rights of another. - T. Jefferson)
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To: tpaine; inquest
Ooh, tpaine, inquest really scored big on that one.

I'm afraid you're actually going to have to address his point head on (without trying to change the subject to state "infringement") in order to have any kind of credibility with me.

But, I think we both know you can't. Give it up. Without anything to support your contention you're acting like a troll, and we can't have that on this board.

At least, I won't put up with it. Name calling is no substitute for honest debate.

234 posted on 10/31/2004 6:24:28 AM PST by robertpaulsen
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To: Eastbound
As per the U.S. Constitution, people have certain unalienable rights which cannot be ceded or taken away. These would include life, liberty, the pursuit of happiness, and property ownership as examples.

There are other, fundamental (or natural), rights which you have which may or may not be protected by the state in which you live. For example, you have a fundamental right to protect your self using any means necessary. The state in which you live may protect that right, but exclude guns as a "necessary means". You have a fundamental right to earn a living. The state in which you live may protect that right, but exclude occupations such as prostitution, drug dealing, and selling beer.

If there is a "compelling state interest" in the legislation, then the state may override your fundamental right for the good of the community.

Yes, you have rights. But so do the rest of us.

As to your smoking example, I happen to agree. A private enterprise such as a hotel, bar, or restaurant, should be allowed to set their own rules as to who they will hire, for how much, and who they will serve (which includes smokers/non-smokers).

As you said, market forces should balance the field -- if not, the city could use their power of licensing to regulate the proportions.

235 posted on 10/31/2004 6:58:02 AM PST by robertpaulsen
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To: robertpaulsen
robertpaulsen wrote:

Ooh, tpaine, inquest really scored big on that one.

Which one? He's been tossing around his stock complaints, much as you do, and as usual none of them stuck to the wall.

I'm afraid you're actually going to have to address his point head on (without trying to change the subject to state "infringement")

The base point of the thread is States infringing on our rights. -- You clowns conveniently lose track of that in all your nitpicking.

in order to have any kind of credibility with me.

You flatter yourself that anyone here is concerned with your views on credibility, as your own was destroyed long ago by your support for gun prohibitions.

But, I think we both know you can't. Give it up. Without anything to support your contention you're acting like a troll, and we can't have that on this board.

Paulsen, you advocate States 'rights' & are anti individual rights. On a conservative board, you are the troll, not me.

At least, I won't put up with it. Name calling is no substitute for honest debate.

You offer no honest debate, which leads to questions on your motives. You then claim such questions are 'name calling'. -- Round we go.
Change your style and you won't have to "put up with it".

236 posted on 10/31/2004 7:10:02 AM PST by tpaine (No man has a natural right to commit aggression on the equal rights of another. - T. Jefferson)
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To: tpaine
Save the verbiage for your rebuttal to his post #230. That's all I want.

Without a rebuttal, you're simply trolling to stir things up. That's "abuse" in my book, and will be reported as such.

Answer the post.

237 posted on 10/31/2004 7:18:14 AM PST by robertpaulsen
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To: tpaine
"Congress shall make no law ..." applies only to the 'establishment' clause.-- A point Justice Thomas reiterated in his last opinion, and we all argued over."

I see. So the states are not bound by this? They may support their own state religion?

You have a poor memory. You lost the argument.

238 posted on 10/31/2004 7:35:58 AM PST by robertpaulsen
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To: robertpaulsen
Paulsen wrote:

As per the U.S. Constitution, people have certain unalienable rights which cannot be ceded or taken away. These would include life, liberty, the pursuit of happiness, and property ownership as examples.
There are other, fundamental (or natural), rights which you have which may or may not be protected by the state in which you live.

Bizarre theory that there are different 'types' of rights. All of our rights, enumerated or not, are protected. When the State fails to protect, the US Constitution applies.

For example, you have a fundamental right to protect your self using any means necessary.

Correct

The state in which you live may protect that right, but exclude guns as a "necessary means".

Incorrect. - You've contradicted yourself. You cannot defend yourself if you lack the 'means', the weapons to do so. The State has no delegated power to outright prohibit possession of those necessary means, those weapons.
-- We have only granted States the power to reasonably regulate such matters. Excluding guns as a "necessary means" of self protection is not reasonable.

You have a fundamental right to earn a living. The state in which you live may protect that right, but exclude occupations such as prostitution, drug dealing, and selling beer.

Unreasonable. -- Criminal acts are dealt with in Courts before juries.

If there is a "compelling state interest" in the legislation, then the state may override your fundamental right for the good of the community.

Good grief, the Communitarian line, blatantly advocated on a conservative board, by a man that just accused me of being a troll. Go figure.

Yes, you have rights. But so do the rest of us. As to your smoking example, I happen to agree. A private enterprise such as a hotel, bar, or restaurant, should be allowed to set their own rules as to who they will hire, for how much, and who they will serve (which includes smokers/non-smokers). As you said, market forces should balance the field -- if not, the city could use their power of licensing to regulate the proportions.
235 RP

Paulsen, you are unequaled in your ability to self-rationalize infringements upon our individual rights in order to advance "the good of the community".
Go back to DU to peddle your wares.

239 posted on 10/31/2004 8:15:10 AM PST by tpaine (No man has a natural right to commit aggression on the equal rights of another. - T. Jefferson)
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To: robertpaulsen
"If there is a "compelling state interest" in the legislation, then the state may override your fundamental right for the good of the community."

Before I address your other points, I'd like to know what the compelling interest would be in preventing me from selling beer? Pretend for a moment that I live in a community of 100 people, all of whom have been drinking my beer for years. In fact, all 100 of them sell their own beer as well.

As time progresses, a few of them decide to stop drinking and selling beer for one reason or another. As time progresses further, the non-drinkers become a majority on the town council, perhaps five of them.

Can you think of a compelling 'state' interest that would empower a majority on the town council to arbitrarily stop the sale of beer in my community?

240 posted on 10/31/2004 8:21:39 AM PST by Eastbound
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