The Federalism Debate [And 'States Rights']

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."

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.

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.

Congress may tell the states how to "Discipline" their militias does not mean that the BOR applies to the states.

I'm not making a BOR argument here. I'm saying the States may not interfere with powers delegated to Congress, ie the arming of the Militia-- which is defined under Federal law as males between 18-45 and women in the NG.

Are you saying that congress could pass a law saying, "We discipline your militia by demanding that you have no gun restrictions."???

I'm saying courts have a basis for striking down State anti-gun laws due to violations of Article I, Section 8.

Okay, so we're on an entirely different subject, but that's cool. As for the question -- on the one hand, I like your way of thinking I truly do. It IS a bit of a stretch... the g. saying that we absolutely need every man to be armed and therefore the states cannot interfere, but I do like it. I truly do. Holy Jumpin Jimminy! I swear to God, Ken, the more I think about it, the LESS of a stretch it seems. What more can I say, it sounds good to me.

Before I answer, let me define myself. I've been a member for a long time. I'm not a faker or a troll. I love guns, don't even know how many I have. I would give my right arm for the Thompson I saw on gunsusa.com the other day ($35,000). I joined the corps on the day after my 17th b-day (JUL 81)I spent two years fighting like a dog to be assigned to the infantry. I succeeded just in time to go to ITS and be airlifted to Beirut 24 hours after the barracks bombing in 83. My family has over 90 years in the corps, 78 of it in the infantry, my brother just got back from iraq where he was TWICE decorated for valor. I cry everyday for my nation that disappeared sometime after 1937 (the switch in time that saved nine, for you who know what you're talking about), the nation that was helped to its grave by the warren court and roe v. wade. I am a mega conservative and mega patriot, but, yes, STATE gun laws are constitutional. I wish it weren't so, but there you have it. One caveat -- if the nation is to live under the doctrine of inc., then, no, state gun laws are NOT legal.

Eastbound wrote:

The fedguv has completely altered the jurisdictional playing field through various devices. Treaties, Commerce clause, 'compelling interest' BS, Welfare clause, ad infinitum.

Very true.

And of course, the jurisdictional playing field was tilted with the 14th Amendment when the federal overlay and federal citizenship was created.

US citizenship was 'created' by the 14th? Were persons born in the territories, prior to 1868, not 'a citizen' until Statehood?

Also, I don't see how any playing field was altered by the 14th. In effect it simply reiterated that States are bound to honor Constitutional law as our supreme law, and corrected the erroneous impression left by Marshalls 1833 'Barron' opinion, that States could infringe upon our individual rights.

"Don't know what to say about this. Madison is referring to "enumerated objects", again, the Fed gove can legislate on enumerated objects only, and you won't find telling the states how to handle their gun laws in that enumeration. You say the fed gove is subject to the states? I thought you've been saying just the opposite, that the sup claus makes the fed gove supreme?"

Our system is circular, self-governing, self-correcting, with a balance of powers in place. There is a hierarchal structure to our country, with we the people at the top, the states (municipalities) following, then the federal government.

The states protect our rights from federal intrusions, and the federal government protects our rights from state intrusions via Article VI, para 2. and the courts. When all three fail, we protect each other with a jury of our peers.

In a very true sense, a jury of our peers who judge the facts AND the law, is the supreme law of the land when it gets down to the finish line.

The real problem we have in this country is that few realize how many of their rights they have contracted away to state and federal government and they don't find out until they are fined or thrown in jail. But that is a horse of another color and for another thread.

"Erroneous impression", you say? I post again the passage below. That erroneous impression seems to have been shared by the entire nation for roughly one hundred years, and seems to have encompassed ONE DOZEN cases.

"As finally drafted and ratified, however, the first ten amends to the cons – the bor – limited only the fed gov. In 1833, the Supreme Court explicitly held (Barron V. Balt) that the BOR restrained only the fed gov, not the states… The idea of imposing a national standard on the states was rejected by the Sup Ct. in 1873 when it held that the primary purpose of the Civ War amends was to guarantee freedom for blacks. Moreover privs and immuns were to be protected by the states, not the nat gove. Other decisions during this period also refused to apply the BOR to the states"
1. Pervear v. Commonwealth,
2. Twitchell v. the commonwealth,
3. the justices v. murray,
4. walker v. sauvinet,
5. US v. cruikshank,
6. hurtado v. CA,
7. presser v. ILL,
8. spies v. ill,
9. mcelvaine vs. brush,
10. o’neill v. Vermont,
11. Maxwell v. dow,

Pg 391 of Constitutional Structures: Separated Powers and Federalism, Volume 1 of Amer. Con. Law, Louis Fisher, McGraw Hill, 1990

RayStacy wrote:

I'm convinced you're a retard, but that's not the point.
I love how dumb little retards say, "I won't counter you in detail, because it's not worth my time." You think the whole world can't see that you've got no case!!!!???? I DEFY you to answer those question, or show me where they've been answered before. I DARE you! You can't! Here's a question, retard, cite me ONE!!!!!!!!!!!!!!!!! ONE!!!!!!!!!!!!!!! con authority, ONE!!!!! textbook, ONE!!!!!!!!!!!!! Sup court case that says the BOR applied to the states before the inc. doctrine. JUST ONE! I've got 12!!!!!!!!!!!!!!!!!!!!!!!! sup court cases on my side, and state state legs of at least 7 of the orig 13 states. Answer the q -- Why did the sup court come along and say, 80 years after the cons came about, "From now on, this particular rite in the BOR applies to the states" if that right applied all along. I await your reply.

RayStacy #274:
One more thing -- I hope you'll agree that I've been polite. No remarks about delusion or incoherence, etc. You were certainly polite to me, so I responded in kind. I really want to keep it that way.

_____________________________________

Rave on ray.
Don't hold your breath waiting for replies to your cut & paste spam.

RayStacy wrote:

You won't reply because you have nothing to say, and I posted that comment about being polite BEFORE you went again and called me a psychphant who wasn't worth responding to, retard!
Notice I continue to be polite to others who are polite to me.

Ray look up the word 'sycophant'.
You won't be flattered, but it has nothing to do with being psycho.

I wrote:

Sorry ray, but as I said at #90:
"after reading your recent posts, -- I'm convinced you're just another sycophant on 'states rights', not worth countering in detail.."

All your questions have been gone over, ad nauseum, -- in this thread, and in many others.

The fact remains, -- you deny that our RKBA's need be to protected from States like CA, or cities like Chicago.

Learn to live with that Constitutional apostasy, - if you can.

"US citizenship was 'created' by the 14th? Were persons born in the territories, prior to 1868, not 'a citizen' until Statehood?"

Well, that's a real can of worms.

That's two questions.

1 - US (Federal) citizenship WAS created with the 14th Amendment. The 14th was created to designate a protectorate -- the federal United States - a transparent overlay over the geographical political entities of the union of states for blacks and other non-Citizens after the war. These are referred to as 'citizens' (lower case 'c') in the 14th.

Congress couldn't call them 'Citizens,' as that word was already defined and in use in the Constitution. Check it out. 'Citizen' is capitalized throughout the Constitution until the 14th Amendment, then and thereafter spelled only in lower case. Think there was not a reason for that?

Okay, here's the kicker: The 14th amendment did not apply to Citizens -- only to citizens. The 14th formally advised how non-federal Citizens should treat and regard federal citizens. And it gave the state governments 100 years to get their act together, ending the Jim Crow period with the Civil Rights Act of 1964.

Question 2 -- Depends on whether or not a person born in the territories would constitutionally qualify to be elected to Congress or President of the United States, per Article I and Article II. Like I said. A can of worms, even at this late date, unless someone can come up with a rationale that allowed 'citizens' to be elected to Congress.

"federal government protects our rights from state intrusions via Article VI, para 2. and the courts. "

James Madison tried to give the federal government such power but that was rejected by the convention.

There's a great letter by him to Thomas Jefferson written October 24, 1787 where he complains about it and goes into great length how it would be a good thing "to prevent instability and injustice in the legislation of the states".

You already know that the Bill Of Rights granted no new powers to the federal government but further restriced the use what powers it had.
No doubt you'll recall that Madison again tried to give the federal government that power to protect some rights from the states in the Bill of Rights, but again it was rejected by congress.

The Founders recieve as little regard from people who want to find a federal protection of their RKBA as it does from those who want to find a federal protection of their "right to privacy".

But we just can't have a living constitution. Federal RKBA have to be found in the 14th Amendment's "privileges and immunities". Like it or not.

I am a mega conservative and mega patriot, but, yes, STATE gun laws are constitutional. I wish it weren't so, but there you have it.

I thought you said I was correct that State gun laws interfere in an area delegated to Congress under Article I Sec. 8. How could they be constitutional?

One caveat -- if the nation is to live under the doctrine of inc., then, no, state gun laws are NOT legal.

And in your opinion, is the correct reading of the Constitution to incorporate the Second and apply it to the States?

"You already know that the Bill Of Rights granted no new powers to the federal government but further restriced the use what powers it had. No doubt you'll recall that Madison again tried to give the federal government that power to protect some rights from the states in the Bill of Rights, but again it was rejected by congress.

I suppose that is why we have a SCOTUS. It would be nice if it was consistent though. Rejected the gun cases and accepted Roe and possibly others.

My interest is just the gun issue. Upon the outcome of that, rests the value of the Constitution itself.

Some BIG misunderstanding here. IF!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! congress were to enact a statute saying that all citizens had to be armed to be prepared for militia service or something like that, you'd have an interesting case. I know that there is a statute saying that all men between x and y ages are in the militia or something like that, but as far as I know there is no requirement to be armed.
Question 2: The whole doctrine of inc. is completely bogus, invented like much of sc law. IOW, the BOR still does NOT apply to the states. However, if the SC insists on saying that ANY part of the BOR applies to the states, then I DEMAND that the whole thing apply, most especially including the 2nd amend. But this is irrelevant -- the question before us is -- Was the BOR meant to apply to the states. Not --- does it apply now, after many changes and court cases.

" . . . and you won't find telling the states how to handle their gun laws in that enumeration."

Why should it? The fedguv is doing a pretty good job of breaking the Second Amendment without the help of some states. Oooops! I forgot. 'Shall not be infringed' means shall not be infringed while the people are in bed sleeping. But when the people are not sleeping and up moving around, 180,000 federal gun control laws are in effect.

Yeah power is the root of all societies, an unarmed citizenry is as rootless as the dust.

I must say that these constant attempts by Freepers for a federal protection of rights- much though it irritates me LOL!- is just what Madison did. It's a shame it wasn't accomplished until the 14th Amendment, but it just wasn't possible until the federal government had proved itself to the people and enough states were willing to combine to destroy slavery.

To a great extent the 14th Amendment brought Madison's original constitutional scheme to completion by giving the feds a power to protect people from their states.

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