States' rights
Encyclopedia
States' rights in U.S. politics
refers to political power
s reserved for the U.S. state
governments rather than the federal government
. It is often considered a loaded term
because of its use in opposition to federally mandated racial desegregation
. In law, states' prerogatives are protected by the Tenth Amendment
.
of the U.S. Constitution
was first addressed in the case of McCulloch v. Maryland
(1819). Chief Justice
John Marshall
asserted that the laws adopted by the federal government, when exercising its constitutional powers, are generally paramount over any conflicting laws adopted by state governments. After McCulloch, the primary legal issues in this area concerned the scope of Congress' constitutional powers, and whether the states possess certain powers to the exclusion of the federal government, even if the Constitution does not explicitly limit them to the states.
of the U.S. Constitution states:
In The Federalist Papers
, ratification proponent Alexander Hamilton
explained the limitations this clause placed on the proposed federal government, describing that acts of the federal government were binding on the states and the people therein only if the act was in pursuance of constitutionally granted powers, and juxtaposing acts which exceeded those bounds as "void and of no force":
and the ratification of the United States Constitution
, the states had united under a much weaker federal government, pursuant to the Articles of Confederation
. The Articles gave the central government very little, if any, authority to overrule individual state actions. The Constitution subsequently strengthened the central government, authorizing it to exercise powers deemed necessary to exercise its authority, with an ambiguous boundary between the two co-existing levels of government. In the event of any conflict between state and federal law, the Constitution resolved the conflict via the Supremacy Clause of Article VI
in favor of the federal government, which declares federal law the "supreme Law of the Land" and provides that "the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." However, the Supremacy Clause only applies if the federal government is acting in pursuit of its constitutionally authorized powers, as noted by the phrase "in pursuance thereof" in the actual text of the Supremacy Clause
itself:
in 1798, Thomas Jefferson
and James Madison
secretly wrote the Kentucky and Virginia Resolutions
, which provide a classic statement in support of states' rights. According to this theory, the federal 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:
The Kentucky and Virginia Resolutions, along with the supporting Report of 1800
by Madison, became final documents of Jefferson's Democratic-Republican Party. The most vociferous supporters of states' rights, such as John Randolph of Roanoke
, were called "Old Republicans" into the 1820s and 1830s.
Another states' rights dispute occurred over the War of 1812
. At the Hartford Convention
, New England
states voiced opposition to President
James Madison
and the war, and discussed secession
from the Union.
s. Heavily dependent upon international trade, the almost entirely agricultural
and export
-oriented South
imported most of its manufactured goods from Europe or obtained them from the North. The North, by contrast, had a growing domestic industrial economy
that viewed foreign trade as competition. Trade barriers, especially protective tariffs, were viewed as harmful to the Southern economy, which depended on exports.
In 1828, the Congress
passed protective tariffs to benefit trade in the northern states, but that were detrimental to the South. Southerners vocally expressed their tariff opposition in documents such as the South Carolina Exposition and Protest
in 1828, written in response to the "Tariff of Abominations." Exposition and Protest was the work of South Carolina
senator
and former vice president
John C. Calhoun
, formerly an advocate of protective tariff
s and internal improvements
at federal expense.
South Carolina
's Nullification Ordinance declared both the tariff of 1828
and the 1832
null and void within the state borders of South Carolina. This action initiated the Nullification Crisis
. Passed by a state convention on November 24, 1832, it led, on December 10, to President Andrew Jackson
's proclamation against South Carolina, which sent a naval flotilla and a threat of sending federal troops to enforce the tariffs; Jackson authorized this under color of national authority, claiming in his 1832 Proclamation Regarding Nullification that "our social compact in express terms declares, that the laws of the United States, its Constitution, and treaties made under it, are the supreme law of the land; and for greater caution adds, "that the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."
polarized the union, with the Jeffersonian principles often being used by both sides—anti-slavery Northerners, and Southern slaveholders and secessionists—in debates that ultimately led to the American Civil War
. Supporters of slavery often argued that one of the rights of the states was the protection of slave property wherever it went, a position endorsed by the U.S. Supreme Court
in the 1857 Dred Scott
decision. In contrast, opponents of slavery argued that the non-slave-states' rights were violated both by that decision and by the Fugitive Slave Law of 1850. Exactly which—and whose—states' rights were the casus belli
in the Civil War remain in controversy.
used the following argument in favor of the equal rights of states:
The Preamble to the Confederate States Constitution
begins: "We, the people of the Confederate States, each State acting in its sovereign and independent character..."
Historians such as Thomas DiLorenzo
and Charles Adams
argue that the Southern secession and the ensuing conflict was much more of a fiscal quarrel than a war over slavery. Northern-inspired tariffs benefited Northern interests but were detrimental to Southern interests and were destroying the economy in the South.
The historian William H. Freehling noted that the South's argument for a states' rights to secede was different from Thomas Jefferson's, in that Jefferson based such a right on the unalienable equal rights of man. The South's version of such a right was modified to be consistent with slavery, and with the South's blend of democracy and authoritarianism.
Historian Henry Brooks Adams explains that the anti-slavery North took a consistent and principled stand on states' rights against Federal encroachment throughout its history, while the Southern states, whenever they saw an opportunity to expand slavery and the reach of the slave power
, often conveniently forgot the principle of states' rights—and fought in favor of Federal centralization:
Sinha and Richards both argue that the states' rights that the Southern states claimed were actually:
Sinha and Richards both conclude their cases by arguing that the Civil War had nothing to do with "states' rights", democracy, or resistance to arbitrary power. They argue that it was instead the result of the increasing cognitive dissonance in the minds of Northerners and (some) Southern non-slaveowners between the ideals that the United States was founded upon and identified itself as standing for, as expressed in the Declaration of Independence, the Constitution of the United States, and the Bill of Rights, and the reality that the slave-power represented, as what they describe as an anti-democratic, counter-republican, oligarchic
, despotic
, authoritarian, if not totalitarian, movement for ownership of human beings as the personal chattels of the slaver. As this cognitive dissonance increased, the people of the Northern states, and the Northern states themselves, became increasingly inclined to resist the encroachments of the slave power upon their states' rights and encroachments of the slave power by and upon the Federal Government of the United States. The slave power, having failed to maintain its dominance of the Federal Government through democratic means, sought other means of maintaining its dominance of the Federal Government, by means of military aggression, by right of force and coercion, and thus, the Civil War occurred.
. The state action theory weakened the effect of the Equal Protection Clause against state governments, in that the clause was held not to apply to unequal protection of the laws caused in part by complete lack of state action in specific cases, even if state actions in other instances form an overall pattern of segregation and other discrimination. The separate but equal theory further weakened the effect of the Equal Protection Clause against state governments.
(1876), a case which arose out of the Colfax Massacre
of blacks contesting the results of a Reconstruction era election, the Fourteenth Amendment
was held by the Supreme Court not to have applied the First Amendment
or Second Amendment
to state governments in respect to their own citizens, only acts of the federal government.
United States v. Harris
(1883) held that the Equal Protection Clause
did not apply to an 1883 prison lynching since the Fourteenth Amendment applied only to states, not to individual criminal matters.
The Civil Rights Cases
(1883) allowed segregation by striking down the Civil Rights Act of 1875
, a statute that prohibited racial discrimination in public accommodations. There, the Supreme Court held that the Equal Protection Clause applied only to acts done by states, not to those done by private individuals; because the Civil Rights Act of 1875 applied to private establishments, the Court said, it exceeded congressional power under Section Five
of the Fourteenth Amendment.
Plessy v. Ferguson
(1896) held that the separate but equal
doctrine complied with the Equal Protection Clause
, and marked the beginning of Jim Crow laws
by approving the de jure
segregation. The Fourteenth and Fifteenth
Amendments would be largely inactive until the American Civil Rights Movement
. Some modern courts up to and including the U.S. Supreme Court still interpret the Civil Rights Cases as limiting the scope of the Fourteenth Amendment.
significantly altered the relationship of State and Federal powers, weakening pro-state-autonomy influence at the Federal level.
and then permanently with the Sixteenth Amendment
in 1913. Before this, the states played a larger role in government.
States's rights were affected by the fundamental alteration of the federal government resulting from the Seventeenth Amendment
, depriving state governments of an avenue of control over the federal government via the representation of each state's legislature in the U.S. Senate
. This change has been described by legal critics as the loss of a check and balance on the federal government by the states.
Following the Great Depression
, the New Deal
and then World War II
continued the growth of the federal government, its authority, and its responsibilities. The case of Wickard v. Filburn
allowed the federal government to enforce the Agricultural Adjustment Act
, providing subsidies to farmers for limiting their crop yields, arguing agriculture affected interstate commerce and came under the jurisdiction of the Commerce Clause
even when a farmer grew his crops not to be sold, but for his own private use.
After World War II, President Harry Truman supported a civil rights bill and desegregated the military. The reaction was a split in the Democratic Party that led to the formation of the "States' Rights Party"—better known as the Dixiecrat
s—led by Strom Thurmond
. Thurmond ran as the States' Rights candidate for President in 1948
, losing to Truman.
and Jim Crow laws denouncing federal interference in these state-level policies.
Brown v. Board of Education
(1954) overruled the Plessy v. Ferguson
(1896) decision, but the Fourteenth and Fifteenth amendments were largely inactive in the South until the Civil Rights Act of 1964
and the Voting Rights Act of 1965. Several states passed Interposition
Resolutions to declare that the Supreme Court's ruling in Brown usurped states' rights.
There was also states' rights opposition to voting rights at Edmund Pettus Bridge
, which was part of the Selma to Montgomery marches
that resulted in the Voting Rights Act of 1965.
and others saw this as a backlash against civil rights. Actor Ronald Reagan
gained popularity by supporting Proposition 14, and was later elected governor of California
. The U.S. Supreme Court's Reitman v. Mulkey
decision overturned Proposition 14 in 1967 in favor of the Equal Protection Clause of the Fourteenth Amendment.
Another concern is the fact that on more than one occasion, the federal government has threatened to withhold highway funds from states which did not pass certain articles of legislation. Any state which lost highway funding for any extended period would face financial impoverishment, infrastructure collapse or both. Although the first such action (the enactment of a national speed limit) was directly related to highways and done in the face of a fuel shortage, most subsequent actions have had little or nothing to do with highways and have not been done in the face of any compelling national crisis. An example of this would be the federally mandated drinking age of 21. Critics of such actions feel that when the federal government does this they upset the traditional balance between the states and the federal government.
More recently, the issue of states' rights has come to a head when the Base Realignment and Closure Commission (BRAC) recommended that Congress
and the Department of Defense
implement sweeping changes to the National Guard
by consolidating some Guard installations and closing others. These recommendations in 2005 drew strong criticism from many states, and several states sued the federal government on the basis that Congress and the Pentagon would be violating states' rights should they force the realignment and closure of Guard bases without the prior approval of the governors from the affected states. After Pennsylvania
won a federal lawsuit to block the deactivation of the 111th Fighter Wing
of the Pennsylvania Air National Guard
, defense and Congressional leaders chose to try to settle the remaining BRAC lawsuits out of court, reaching compromises with the plaintiff
states.
Current states' rights issues include the death penalty, assisted suicide
, gay marriage and the medicinal use of marijuana, the last of which is in violation of federal law. In Gonzales v. Raich
, the Supreme Court ruled in favor of the federal government, permitting the Drug Enforcement Administration
(DEA) to arrest medical marijuana patients and caregivers. In Gonzales v. Oregon
, the Supreme court ruled the practice of physician-assisted suicide in Oregon
is legal.
These concerns have led to a movement sometimes called the State Sovereignty movement or "10th Amendment Sovereignty Movement".
(2001) and Kimel v. Florida Board of Regents
(2000) decisions allowed states to use a rational basis review
for discrimination against the aged and disabled, arguing that these types of discrimination were rationally related to a legitimate state interest, and that no "razorlike precision" was needed." The Supreme Court's United States v. Morrison
(2000) decision limited the ability of rape victims to sue their attackers in federal court. Chief Justice William H. Rehnquist explained that "States historically have been sovereign" in the area of law enforcement, which in the Court's opinion required narrow interpretations of the Commerce Clause and Fourteenth Amendment.
Kimel, Garrett and Morrison indicated that the Court's previous decisions in favor of enumerated powers and limits on Congressional power over the states, such as United States v. Lopez
(1995), Seminole Tribe v. Florida
(1996) and City of Boerne v. Flores
(1997) were more than one time flukes. In the past, Congress relied on the Commerce Clause
and the Equal Protection Clause
for passing civil rights bills, including the Civil Rights Act of 1964
.
Lopez limited the Commerce Clause to things that directly affect interstate commerce, which excludes issues like gun control laws, hate crimes, and other crimes that affect commerce but are not directly related to commerce. Seminole reinforced the "sovereign immunity of states" doctrine, which makes it difficult to sue states for many things, especially civil rights violations. The Flores "congruence and proportionality" requirement prevents Congress from going too far in requiring states to comply with the Equal Protection Clause, which replaced the ratchet theory advanced in Katzenbach v. Morgan
(1966). The ratchet theory held that Congress could ratchet up civil rights beyond what the Court had recognized, but that Congress could not ratchet down judicially recognized rights. An important precedent for Morrison was United States v. Harris
(1883), which ruled that the Equal Protection Clause did not apply to a prison lynching because the state action doctrine applies Equal Protection only to state action, not private criminal acts. Since the ratchet principle was replaced with the "congruence and proportionality" principle by Flores, it was easier to revive older precedents for preventing Congress from going beyond what Court interpretations would allow. Critics such as Associate Justice
John Paul Stevens
accused the Court of judicial activism
(i.e., interpreting law to reach a desired conclusion).
The tide against federal power in the Rehnquist court was stopped in the case of Gonzales v. Raich
, in which the court upheld the federal power to prohibit medicinal use of cannabis
even if states have permitted it. Rehnquist himself was a dissenter in the Raich case.
by defenders of segregation. In 1948 it was the official name of the "Dixiecrat
" party led by white supremacist presidential candidate Strom Thurmond
. Democratic governor George Wallace
, of Alabama
, who famously declared in his inaugural address in 1962, "Segregation now! Segregation tomorrow! Segregation forever!"—later remarked that he should have said, "States' rights now! States' rights tomorrow! States' rights forever!" Wallace, however, claimed that segregation was but one issue symbolic of a larger struggle for states' rights; in that view, which some historians dispute, his replacement of segregation with states' rights would be more of a clarification than a euphemism
.
In 2010, Texas
governor Rick Perry
's use of the expression "state's rights", to some, was reminiscent of "an earlier era when it was a rallying cry against civil rights.". During an interview with The Dallas Morning News
, Perry made it clear that he supports the end of segregation, including passage of the Civil Rights Act. Texas president of the NAACP Gary Bledsoe stated that he understood that Perry wasn't speaking of "states' rights" in a racial context; but others still felt offended by the term because of its past misuse.
Politics of the United States
The United States is a federal constitutional republic, in which the President of the United States , Congress, and judiciary share powers reserved to the national government, and the federal government shares sovereignty with the state governments.The executive branch is headed by the President...
refers to political power
Political power
Political power is a type of power held by a group in a society which allows administration of some or all of public resources, including labour, and wealth. There are many ways to obtain possession of such power. At the nation-state level political legitimacy for political power is held by the...
s reserved for the U.S. state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
governments rather than the federal government
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
. It is often considered a loaded term
Loaded language
In rhetoric, loaded language is wording that attempts to influence the certain audience by using to emotion....
because of its use in opposition to federally mandated racial desegregation
Desegregation
Desegregation is the process of ending the separation of two groups usually referring to races. This is most commonly used in reference to the United States. Desegregation was long a focus of the American Civil Rights Movement, both before and after the United States Supreme Court's decision in...
. In law, states' prerogatives are protected by the Tenth Amendment
Tenth Amendment to the United States Constitution
The Tenth Amendment to the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791...
.
Background
The balance of federal powers and those powers held by the states as defined in the Supremacy ClauseSupremacy Clause
Article VI, Clause 2 of the United States Constitution, known as the Supremacy Clause, establishes the U.S. Constitution, U.S. Treaties, and Federal Statutes as "the supreme law of the land." The text decrees these to be the highest form of law in the U.S...
of the U.S. Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
was first addressed in the case of McCulloch v. Maryland
McCulloch v. Maryland
McCulloch v. Maryland, , was a landmark decision by the Supreme Court of the United States. The state of Maryland had attempted to impede operation of a branch of the Second Bank of the United States by imposing a tax on all notes of banks not chartered in Maryland...
(1819). Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
John Marshall
John Marshall
John Marshall was the Chief Justice of the United States whose court opinions helped lay the basis for American constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches...
asserted that the laws adopted by the federal government, when exercising its constitutional powers, are generally paramount over any conflicting laws adopted by state governments. After McCulloch, the primary legal issues in this area concerned the scope of Congress' constitutional powers, and whether the states possess certain powers to the exclusion of the federal government, even if the Constitution does not explicitly limit them to the states.
Text
The Supremacy ClauseSupremacy Clause
Article VI, Clause 2 of the United States Constitution, known as the Supremacy Clause, establishes the U.S. Constitution, U.S. Treaties, and Federal Statutes as "the supreme law of the land." The text decrees these to be the highest form of law in the U.S...
of the U.S. Constitution states:
In The Federalist Papers
Federalist No. 33
Federalist No. 33 is an essay by Alexander Hamilton, the thirty-third of the Federalist Papers. It was published on January 2, 1788 under the pseudonym Publius, the name under which all the Federalist Papers were published. This is the fourth of seven essays by Hamilton on the then-controversial...
, ratification proponent Alexander Hamilton
Alexander Hamilton
Alexander Hamilton was a Founding Father, soldier, economist, political philosopher, one of America's first constitutional lawyers and the first United States Secretary of the Treasury...
explained the limitations this clause placed on the proposed federal government, describing that acts of the federal government were binding on the states and the people therein only if the act was in pursuance of constitutionally granted powers, and juxtaposing acts which exceeded those bounds as "void and of no force":
Controversy to 1865
In the period between the American RevolutionAmerican Revolution
The American Revolution was the political upheaval during the last half of the 18th century in which thirteen colonies in North America joined together to break free from the British Empire, combining to become the United States of America...
and the ratification of the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, the states had united under a much weaker federal government, pursuant to the Articles of Confederation
Articles of Confederation
The Articles of Confederation, formally the Articles of Confederation and Perpetual Union, was an agreement among the 13 founding states that legally established the United States of America as a confederation of sovereign states and served as its first constitution...
. The Articles gave the central government very little, if any, authority to overrule individual state actions. The Constitution subsequently strengthened the central government, authorizing it to exercise powers deemed necessary to exercise its authority, with an ambiguous boundary between the two co-existing levels of government. In the event of any conflict between state and federal law, the Constitution resolved the conflict via the Supremacy Clause of Article VI
Article Six of the United States Constitution
Article Six of the United States Constitution establishes the Constitution and the laws and treaties of the United States made in accordance with it as the supreme law of the land, forbids a religious test as a requirement for holding a governmental position and holds the United States under the...
in favor of the federal government, which declares federal law the "supreme Law of the Land" and provides that "the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." However, the Supremacy Clause only applies if the federal government is acting in pursuit of its constitutionally authorized powers, as noted by the phrase "in pursuance thereof" in the actual text of the Supremacy Clause
Supremacy Clause
Article VI, Clause 2 of the United States Constitution, known as the Supremacy Clause, establishes the U.S. Constitution, U.S. Treaties, and Federal Statutes as "the supreme law of the land." The text decrees these to be the highest form of law in the U.S...
itself:
Alien and Sedition Acts
When the Federalists passed the Alien and Sedition ActsAlien and Sedition Acts
The Alien and Sedition Acts were four bills passed in 1798 by the Federalists in the 5th United States Congress in the aftermath of the French Revolution's reign of terror and during an undeclared naval war with France, later known as the Quasi-War. They were signed into law by President John Adams...
in 1798, Thomas Jefferson
Thomas Jefferson
Thomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...
and James Madison
James Madison
James Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...
secretly wrote the Kentucky and Virginia Resolutions
Kentucky and Virginia Resolutions
The Kentucky and Virginia Resolutions were political statements drafted in 1798 and 1799, in which the Kentucky and Virginia legislatures took the position that the federal Alien and Sedition Acts were unconstitutional...
, which provide a classic statement in support of states' rights. According to this theory, the federal 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, along with the supporting Report of 1800
Report of 1800
The Report of 1800 was a resolution drafted by James Madison arguing for the sovereignty of the individual states under the United States Constitution and against the Alien and Sedition Acts. Adopted by the Virginia General Assembly in January 1800, the Report amends arguments from the 1798...
by Madison, became final documents of Jefferson's Democratic-Republican Party. The most vociferous supporters of states' rights, such as John Randolph of Roanoke
John Randolph of Roanoke
John Randolph , known as John Randolph of Roanoke, was a planter and a Congressman from Virginia, serving in the House of Representatives , the Senate , and also as Minister to Russia...
, were called "Old Republicans" into the 1820s and 1830s.
Another states' rights dispute occurred over the War of 1812
War of 1812
The War of 1812 was a military conflict fought between the forces of the United States of America and those of the British Empire. The Americans declared war in 1812 for several reasons, including trade restrictions because of Britain's ongoing war with France, impressment of American merchant...
. At the Hartford Convention
Hartford Convention
The Hartford Convention was an event spanning from December 15, 1814–January 4, 1815 in the United States during the War of 1812 in which New England's opposition to the war reached the point where secession from the United States was discussed...
, New England
New England
New England is a region in the northeastern corner of the United States consisting of the six states of Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, and Connecticut...
states voiced opposition to President
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
James Madison
James Madison
James Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...
and the war, and discussed secession
Secession
Secession is the act of withdrawing from an organization, union, or especially a political entity. Threats of secession also can be a strategy for achieving more limited goals.-Secession theory:...
from the Union.
Nullification Crisis of 1832
One major and continuous strain on the union, from roughly 1820 through the Civil War, was the issue of trade and tariffTariff
A tariff may be either tax on imports or exports , or a list or schedule of prices for such things as rail service, bus routes, and electrical usage ....
s. Heavily dependent upon international trade, the almost entirely agricultural
Agriculture
Agriculture is the cultivation of animals, plants, fungi and other life forms for food, fiber, and other products used to sustain life. Agriculture was the key implement in the rise of sedentary human civilization, whereby farming of domesticated species created food surpluses that nurtured the...
and export
Export
The term export is derived from the conceptual meaning as to ship the goods and services out of the port of a country. The seller of such goods and services is referred to as an "exporter" who is based in the country of export whereas the overseas based buyer is referred to as an "importer"...
-oriented South
Southern United States
The Southern United States—commonly referred to as the American South, Dixie, or simply the South—constitutes a large distinctive area in the southeastern and south-central United States...
imported most of its manufactured goods from Europe or obtained them from the North. The North, by contrast, had a growing domestic industrial economy
Industry
Industry refers to the production of an economic good or service within an economy.-Industrial sectors:There are four key industrial economic sectors: the primary sector, largely raw material extraction industries such as mining and farming; the secondary sector, involving refining, construction,...
that viewed foreign trade as competition. Trade barriers, especially protective tariffs, were viewed as harmful to the Southern economy, which depended on exports.
In 1828, the Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
passed protective tariffs to benefit trade in the northern states, but that were detrimental to the South. Southerners vocally expressed their tariff opposition in documents such as the South Carolina Exposition and Protest
South Carolina Exposition and Protest
The South Carolina Exposition and Protest, also known as Calhoun's Exposition, was written in December 1828 by John C. Calhoun, then vice president under John Quincy Adams and later under Andrew Jackson. Calhoun did not formally state his authorship at the time, though it was known.The document was...
in 1828, written in response to the "Tariff of Abominations." Exposition and Protest was the work of South Carolina
South Carolina
South Carolina is a state in the Deep South of the United States that borders Georgia to the south, North Carolina to the north, and the Atlantic Ocean to the east. Originally part of the Province of Carolina, the Province of South Carolina was one of the 13 colonies that declared independence...
senator
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
and former vice president
Vice president
A vice president is an officer in government or business who is below a president in rank. The name comes from the Latin vice meaning 'in place of'. In some countries, the vice president is called the deputy president...
John C. Calhoun
John C. Calhoun
John Caldwell Calhoun was a leading politician and political theorist from South Carolina during the first half of the 19th century. Calhoun eloquently spoke out on every issue of his day, but often changed positions. Calhoun began his political career as a nationalist, modernizer, and proponent...
, formerly an advocate of protective tariff
Tariff
A tariff may be either tax on imports or exports , or a list or schedule of prices for such things as rail service, bus routes, and electrical usage ....
s and internal improvements
Internal improvements
Internal improvements is the term used historically in the United States for public works from the end of the American Revolution through much of the 19th century, mainly for the creation of a transportation infrastructure: roads, turnpikes, canals, harbors and navigation improvements...
at federal expense.
South Carolina
South Carolina
South Carolina is a state in the Deep South of the United States that borders Georgia to the south, North Carolina to the north, and the Atlantic Ocean to the east. Originally part of the Province of Carolina, the Province of South Carolina was one of the 13 colonies that declared independence...
's Nullification Ordinance declared both the tariff of 1828
Tariff of 1828
The Tariff of 1828 was a protective tariff passed by the Congress of the United States on May 19, 1828, designed to protect industry in the northern United States...
and the 1832
Tariff of 1832
The Tariff of 1832 was a protectionist tariff in the United States. It was largely written by former President John Quincy Adams, who had been elected to the House of Representatives and been made chairman of the Committee on Manufactures, and reduced tariffs to remedy the conflict created by the...
null and void within the state borders of South Carolina. This action initiated the Nullification Crisis
Nullification Crisis
The Nullification Crisis was a sectional crisis during the presidency of Andrew Jackson created by South Carolina's 1832 Ordinance of Nullification. This ordinance declared by the power of the State that the federal Tariff of 1828 and 1832 were unconstitutional and therefore null and void within...
. Passed by a state convention on November 24, 1832, it led, on December 10, to President Andrew Jackson
Andrew Jackson
Andrew Jackson was the seventh President of the United States . Based in frontier Tennessee, Jackson was a politician and army general who defeated the Creek Indians at the Battle of Horseshoe Bend , and the British at the Battle of New Orleans...
's proclamation against South Carolina, which sent a naval flotilla and a threat of sending federal troops to enforce the tariffs; Jackson authorized this under color of national authority, claiming in his 1832 Proclamation Regarding Nullification that "our social compact in express terms declares, that the laws of the United States, its Constitution, and treaties made under it, are the supreme law of the land; and for greater caution adds, "that the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."
Civil War
Over the following decades, another central dispute over states' rights moved to the forefront. The issue of slaverySlavery
Slavery is a system under which people are treated as property to be bought and sold, and are forced to work. Slaves can be held against their will from the time of their capture, purchase or birth, and deprived of the right to leave, to refuse to work, or to demand compensation...
polarized the union, with the Jeffersonian principles often being used by both sides—anti-slavery Northerners, and Southern slaveholders and secessionists—in debates that ultimately led to the American Civil War
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...
. Supporters of slavery often argued that one of the rights of the states was the protection of slave property wherever it went, a position endorsed by the U.S. Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
in the 1857 Dred Scott
Dred Scott v. Sandford
Dred Scott v. Sandford, , also known as the Dred Scott Decision, was a ruling by the U.S. Supreme Court that people of African descent brought into the United States and held as slaves were not protected by the Constitution and could never be U.S...
decision. In contrast, opponents of slavery argued that the non-slave-states' rights were violated both by that decision and by the Fugitive Slave Law of 1850. Exactly which—and whose—states' rights were the casus belli
Casus belli
is a Latin expression meaning the justification for acts of war. means "incident", "rupture" or indeed "case", while means bellic...
in the Civil War remain in controversy.
Southern arguments
Jefferson DavisJefferson Davis
Jefferson Finis Davis , also known as Jeff Davis, was an American statesman and leader of the Confederacy during the American Civil War, serving as President for its entire history. He was born in Kentucky to Samuel and Jane Davis...
used the following argument in favor of the equal rights of states:
The Preamble to the Confederate States Constitution
Confederate States Constitution
The Constitution of the Confederate States of America was the supreme law of the Confederate States of America, as adopted on March 11, 1861 and in effect through the conclusion of the American Civil War. The Confederacy also operated under a Provisional Constitution from February 8, 1861 to March...
begins: "We, the people of the Confederate States, each State acting in its sovereign and independent character..."
Historians such as Thomas DiLorenzo
Thomas DiLorenzo
Thomas James DiLorenzo is an American economics professor at Loyola University Maryland. He is an adherent of the Austrian School of Economics. He is a senior faculty member of the Ludwig von Mises Institute and an associated scholar of the Abbeville Institute...
and Charles Adams
Charles Adams
Charles Adams or Charlie Adams may refer to:People*Babe Adams , born Charles Benjamin Adams, American baseball pitcher*Charles Adams , son of John Adams, brother of John Quincy Adams...
argue that the Southern secession and the ensuing conflict was much more of a fiscal quarrel than a war over slavery. Northern-inspired tariffs benefited Northern interests but were detrimental to Southern interests and were destroying the economy in the South.
Northern arguments
The historian James McPherson noted that Southerners were inconsistent on the states' rights issue, and that Northern states tried to protect the rights of their states against the South during the Gag Rule and fugitive slave law controversies.The historian William H. Freehling noted that the South's argument for a states' rights to secede was different from Thomas Jefferson's, in that Jefferson based such a right on the unalienable equal rights of man. The South's version of such a right was modified to be consistent with slavery, and with the South's blend of democracy and authoritarianism.
Historian Henry Brooks Adams explains that the anti-slavery North took a consistent and principled stand on states' rights against Federal encroachment throughout its history, while the Southern states, whenever they saw an opportunity to expand slavery and the reach of the slave power
Slave power
The Slave Power was a term used in the Northern United States to characterize the political power of the slaveholding class of the South....
, often conveniently forgot the principle of states' rights—and fought in favor of Federal centralization:
Sinha and Richards both argue that the states' rights that the Southern states claimed were actually:
- States' rights to engage in slaverySlaverySlavery is a system under which people are treated as property to be bought and sold, and are forced to work. Slaves can be held against their will from the time of their capture, purchase or birth, and deprived of the right to leave, to refuse to work, or to demand compensation...
; - States' rights to suppress the freedom of speechFreedom of speechFreedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
of those opposed to slavery or its expansion, by seizing abolitionist literature from the mail; - States' rights to violate the sovereignty of the non-slave States by sending slave-catchers into their territory to enforce the Fugitive Slave Law of 1850Fugitive Slave Law of 1850The Fugitive Slave Law or Fugitive Slave Act was passed by the United States Congress on September 18, 1850, as part of the Compromise of 1850 between Southern slave holding interests and Northern Free-Soilers. This was one of the most controversial acts of the 1850 compromise and heightened...
, to seize supposed runaway slaves by force of arms. - States' rights to send armed Border Ruffians into the territories of the United States such as Kansas to engage in massive vote fraud and acts of violence; see Slave PowerSlave powerThe Slave Power was a term used in the Northern United States to characterize the political power of the slaveholding class of the South....
and Bleeding KansasBleeding KansasBleeding Kansas, Bloody Kansas or the Border War, was a series of violent events, involving anti-slavery Free-Staters and pro-slavery "Border Ruffian" elements, that took place in the Kansas Territory and the western frontier towns of the U.S. state of Missouri roughly between 1854 and 1858...
; - States' rights to deem portions of their population "beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect", by means of the Dred Scott decision;
- States' rights to secede from the United States after an election whose result they disagreed with, the election in 1860 of Abraham LincolnUnited States presidential election, 1860The United States presidential election of 1860 was a quadrennial election, held on November 6, 1860, for the office of President of the United States and the immediate impetus for the outbreak of the American Civil War. The nation had been divided throughout the 1850s on questions surrounding the...
; - States' rights to seize forts and arsenals of the United States following their purported secession; see Fort SumterFort SumterFort Sumter is a Third System masonry coastal fortification located in Charleston Harbor, South Carolina. The fort is best known as the site upon which the shots initiating the American Civil War were fired, at the Battle of Fort Sumter.- Construction :...
; - States' rights to have a less democratic form of government; Sinha, in particular, argues this point, illustrating that the state of South Carolina, home of John CalhounJohn C. CalhounJohn Caldwell Calhoun was a leading politician and political theorist from South Carolina during the first half of the 19th century. Calhoun eloquently spoke out on every issue of his day, but often changed positions. Calhoun began his political career as a nationalist, modernizer, and proponent...
, the ideological godfather of the Slave Power, had a far less democratic order than the several other United States. Although all white male residents were allowed to vote, property restrictions for office holders were higher in South Carolina than in any other state. South Carolina had the only state legislature where slave owners had the majority of seats. It was the only state where the legislature elected the governor, all judges and state electors. The state's chief executive was a figurehead who had no authority to veto legislative law. - States' rights to overturn the ideal expressed in the Declaration of IndependenceDeclaration of independenceA declaration of independence is an assertion of the independence of an aspiring state or states. Such places are usually declared from part or all of the territory of another nation or failed nation, or are breakaway territories from within the larger state...
— that "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness".
Sinha and Richards both conclude their cases by arguing that the Civil War had nothing to do with "states' rights", democracy, or resistance to arbitrary power. They argue that it was instead the result of the increasing cognitive dissonance in the minds of Northerners and (some) Southern non-slaveowners between the ideals that the United States was founded upon and identified itself as standing for, as expressed in the Declaration of Independence, the Constitution of the United States, and the Bill of Rights, and the reality that the slave-power represented, as what they describe as an anti-democratic, counter-republican, oligarchic
Oligarchy
Oligarchy is a form of power structure in which power effectively rests with an elite class distinguished by royalty, wealth, family ties, commercial, and/or military legitimacy...
, despotic
Despotism
Despotism is a form of government in which a single entity rules with absolute power. That entity may be an individual, as in an autocracy, or it may be a group, as in an oligarchy...
, authoritarian, if not totalitarian, movement for ownership of human beings as the personal chattels of the slaver. As this cognitive dissonance increased, the people of the Northern states, and the Northern states themselves, became increasingly inclined to resist the encroachments of the slave power upon their states' rights and encroachments of the slave power by and upon the Federal Government of the United States. The slave power, having failed to maintain its dominance of the Federal Government through democratic means, sought other means of maintaining its dominance of the Federal Government, by means of military aggression, by right of force and coercion, and thus, the Civil War occurred.
Since 1865
A series of Supreme Court decisions developed the state action constraint on the Equal Protection ClauseEqual Protection Clause
The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"...
. The state action theory weakened the effect of the Equal Protection Clause against state governments, in that the clause was held not to apply to unequal protection of the laws caused in part by complete lack of state action in specific cases, even if state actions in other instances form an overall pattern of segregation and other discrimination. The separate but equal theory further weakened the effect of the Equal Protection Clause against state governments.
In case law
With United States v. CruikshankUnited States v. Cruikshank
United States v. Cruikshank, 92 U.S. 542 was an important United States Supreme Court decision in United States constitutional law, one of the earliest to deal with the application of the Bill of Rights to state governments following the adoption of the Fourteenth Amendment.-Background:On Easter...
(1876), a case which arose out of the Colfax Massacre
Colfax massacre
The Colfax massacre or Colfax Riot occurred on Easter Sunday, April 13, 1873, in Colfax, Louisiana, the seat of Grant Parish, during Reconstruction, when white militia attacked freedmen at the Colfax courthouse...
of blacks contesting the results of a Reconstruction era election, the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
was held by the Supreme Court not to have applied the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
or Second Amendment
Second Amendment to the United States Constitution
The Second Amendment to the United States Constitution is the part of the United States Bill of Rights that protects the right of the people to keep and bear arms. It was adopted on December 15, 1791, along with the rest of the Bill of Rights.In 2008 and 2010, the Supreme Court issued two Second...
to state governments in respect to their own citizens, only acts of the federal government.
United States v. Harris
United States v. Harris
United States v. Harris, , sometimes referred to as the Ku Klux Case, was a case in which the Supreme Court of the United States held that it was unconstitutional for the federal government to penalize crimes such as assault and murder. It declared that the local governments have the power to...
(1883) held that the Equal Protection Clause
Equal Protection Clause
The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"...
did not apply to an 1883 prison lynching since the Fourteenth Amendment applied only to states, not to individual criminal matters.
The Civil Rights Cases
Civil Rights Cases
The Civil Rights Cases, 109 U.S. 3 , were a group of five similar cases consolidated into one issue for the United States Supreme Court to review...
(1883) allowed segregation by striking down the Civil Rights Act of 1875
Civil Rights Act of 1875
The Civil Rights Act of 1875 was a United States federal law proposed by Senator Charles Sumner and Representative Benjamin F. Butler in 1870...
, a statute that prohibited racial discrimination in public accommodations. There, the Supreme Court held that the Equal Protection Clause applied only to acts done by states, not to those done by private individuals; because the Civil Rights Act of 1875 applied to private establishments, the Court said, it exceeded congressional power under Section Five
Congressional power of enforcement
A Congressional power of enforcement is included in a number of amendments to the United States Constitution. The language "The Congress shall have power to enforce this article by appropriate legislation" is used, with slight variations, in Amendments XIII, XIV, XV, XVIII, XIX, XXIII, XXIV, and XXVI...
of the Fourteenth Amendment.
Plessy v. Ferguson
Plessy v. Ferguson
Plessy v. Ferguson, 163 U.S. 537 , is a landmark United States Supreme Court decision in the jurisprudence of the United States, upholding the constitutionality of state laws requiring racial segregation in private businesses , under the doctrine of "separate but equal".The decision was handed...
(1896) held that the separate but equal
Separate but equal
Separate but equal was a legal doctrine in United States constitutional law that justified systems of segregation. Under this doctrine, services, facilities and public accommodations were allowed to be separated by race, on the condition that the quality of each group's public facilities was to...
doctrine complied with the Equal Protection Clause
Equal Protection Clause
The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"...
, and marked the beginning of Jim Crow laws
Jim Crow laws
The Jim Crow laws were state and local laws in the United States enacted between 1876 and 1965. They mandated de jure racial segregation in all public facilities, with a supposedly "separate but equal" status for black Americans...
by approving the de jure
De jure
De jure is an expression that means "concerning law", as contrasted with de facto, which means "concerning fact".De jure = 'Legally', De facto = 'In fact'....
segregation. The Fourteenth and Fifteenth
Fifteenth Amendment to the United States Constitution
The Fifteenth Amendment to the United States Constitution prohibits each government in the United States from denying a citizen the right to vote based on that citizen's "race, color, or previous condition of servitude"...
Amendments would be largely inactive until the American Civil Rights Movement
African-American Civil Rights Movement (1955-1968)
The African-American Civil Rights Movement refers to the movements in the United States aimed at outlawing racial discrimination against African Americans and restoring voting rights to them. This article covers the phase of the movement between 1955 and 1968, particularly in the South...
. Some modern courts up to and including the U.S. Supreme Court still interpret the Civil Rights Cases as limiting the scope of the Fourteenth Amendment.
Direct election of senators
Under the original constitutional system, while federal Representatives were popularly elected, federal Senators were appointed by State legislatures, thus ensuring a balance between Federal and State interests at the Federal level. The Seventeenth AmendmentSeventeenth Amendment to the United States Constitution
The Seventeenth Amendment to the United States Constitution established direct election of United States Senators by popular vote. The amendment supersedes Article I, § 3, Clauses 1 and 2 of the Constitution, under which senators were elected by state legislatures...
significantly altered the relationship of State and Federal powers, weakening pro-state-autonomy influence at the Federal level.
Later Progressive Era and World War II
By the beginning of the 20th century, greater cooperation began to grow between the State and federal governments. Soon, the federal government began to accumulate more power. It was early in this period that a federal income tax was implemented, first during the Civil WarAmerican Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...
and then permanently with the Sixteenth Amendment
Sixteenth Amendment to the United States Constitution
The Sixteenth Amendment to the United States Constitution allows the Congress to levy an income tax without apportioning it among the states or basing it on Census results...
in 1913. Before this, the states played a larger role in government.
States's rights were affected by the fundamental alteration of the federal government resulting from the Seventeenth Amendment
Seventeenth Amendment to the United States Constitution
The Seventeenth Amendment to the United States Constitution established direct election of United States Senators by popular vote. The amendment supersedes Article I, § 3, Clauses 1 and 2 of the Constitution, under which senators were elected by state legislatures...
, depriving state governments of an avenue of control over the federal government via the representation of each state's legislature in the U.S. Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
. This change has been described by legal critics as the loss of a check and balance on the federal government by the states.
Following the Great Depression
Great Depression
The Great Depression was a severe worldwide economic depression in the decade preceding World War II. The timing of the Great Depression varied across nations, but in most countries it started in about 1929 and lasted until the late 1930s or early 1940s...
, the New Deal
New Deal
The New Deal was a series of economic programs implemented in the United States between 1933 and 1936. They were passed by the U.S. Congress during the first term of President Franklin D. Roosevelt. The programs were Roosevelt's responses to the Great Depression, and focused on what historians call...
and then World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
continued the growth of the federal government, its authority, and its responsibilities. The case of Wickard v. Filburn
Wickard v. Filburn
Wickard v. Filburn, 317 U.S. 111 , was a U.S. Supreme Court decision that recognized the power of the federal government to regulate economic activity. A farmer, Roscoe Filburn, was growing wheat for on-farm consumption. The U.S...
allowed the federal government to enforce the Agricultural Adjustment Act
Agricultural Adjustment Act
The Agricultural Adjustment Act was a United States federal law of the New Deal era which restricted agricultural production by paying farmers subsidies not to plant part of their land and to kill off excess livestock...
, providing subsidies to farmers for limiting their crop yields, arguing agriculture affected interstate commerce and came under the jurisdiction of the Commerce Clause
Commerce Clause
The Commerce Clause is an enumerated power listed in the United States Constitution . The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to...
even when a farmer grew his crops not to be sold, but for his own private use.
After World War II, President Harry Truman supported a civil rights bill and desegregated the military. The reaction was a split in the Democratic Party that led to the formation of the "States' Rights Party"—better known as the Dixiecrat
Dixiecrat
The States' Rights Democratic Party was a short-lived segregationist political party in the United States in 1948...
s—led by Strom Thurmond
Strom Thurmond
James Strom Thurmond was an American politician who served as a United States Senator. He also ran for the Presidency of the United States in 1948 as the segregationist States Rights Democratic Party candidate, receiving 2.4% of the popular vote and 39 electoral votes...
. Thurmond ran as the States' Rights candidate for President in 1948
United States presidential election, 1948
The United States presidential election of 1948 is considered by most historians as the greatest election upset in American history. Virtually every prediction indicated that incumbent President Harry S. Truman would be defeated by Republican Thomas E. Dewey. Truman won, overcoming a three-way...
, losing to Truman.
African-American Civil Rights Movement
During the African-American Civil Rights Movement of the 1950s and 1960s, the longstanding use of states' rights to maintain Southern racial politics was highlighted with proponents of racial segregationRacial segregation
Racial segregation is the separation of humans into racial groups in daily life. It may apply to activities such as eating in a restaurant, drinking from a water fountain, using a public toilet, attending school, going to the movies, or in the rental or purchase of a home...
and Jim Crow laws denouncing federal interference in these state-level policies.
Brown v. Board of Education
Brown v. Board of Education
Brown v. Board of Education of Topeka, 347 U.S. 483 , was a landmark decision of the United States Supreme Court that declared state laws establishing separate public schools for black and white students unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896 which...
(1954) overruled the Plessy v. Ferguson
Plessy v. Ferguson
Plessy v. Ferguson, 163 U.S. 537 , is a landmark United States Supreme Court decision in the jurisprudence of the United States, upholding the constitutionality of state laws requiring racial segregation in private businesses , under the doctrine of "separate but equal".The decision was handed...
(1896) decision, but the Fourteenth and Fifteenth amendments were largely inactive in the South until the Civil Rights Act of 1964
Civil Rights Act of 1964
The Civil Rights Act of 1964 was a landmark piece of legislation in the United States that outlawed major forms of discrimination against African Americans and women, including racial segregation...
and the Voting Rights Act of 1965. Several states passed Interposition
Interposition
Interposition is an asserted right of U.S. states to declare federal actions unconstitutional. Interposition has not been upheld by the courts. Rather, the courts have held that the power to declare federal laws unconstitutional lies with the federal judiciary, not with the states...
Resolutions to declare that the Supreme Court's ruling in Brown usurped states' rights.
There was also states' rights opposition to voting rights at Edmund Pettus Bridge
Edmund Pettus Bridge
The Edmund Pettus Bridge is a bridge that carries U.S. Highway 80 across the Alabama River in Selma, Alabama. Built in 1940, it is named for Edmund Winston Pettus, a former Confederate brigadier general and U.S. Senator from Alabama. The bridge is a steel through arch bridge with a central span of...
, which was part of the Selma to Montgomery marches
Selma to Montgomery marches
The Selma to Montgomery marches were three marches in 1965 that marked the political and emotional peak of the American civil rights movement. They grew out of the voting rights movement in Selma, Alabama, launched by local African-Americans who formed the Dallas County Voters League...
that resulted in the Voting Rights Act of 1965.
Contemporary debates
In 1964, the issue of fair housing in California involved the boundary between state laws and federalism. California Proposition 14 overturned the Rumsford Fair Housing Act and allowed discrimination in any type of home sale. Martin Luther King, Jr.Martin Luther King, Jr.
Martin Luther King, Jr. was an American clergyman, activist, and prominent leader in the African-American Civil Rights Movement. He is best known for being an iconic figure in the advancement of civil rights in the United States and around the world, using nonviolent methods following the...
and others saw this as a backlash against civil rights. Actor Ronald Reagan
Ronald Reagan
Ronald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....
gained popularity by supporting Proposition 14, and was later elected governor of California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
. The U.S. Supreme Court's Reitman v. Mulkey
Reitman v. Mulkey
Reitman v. Mulkey, 387 U.S. 369 , was a United States Supreme Court decision that set an important legal precedent that states could remove a constitutional amendment passed by initiative, if the proffered amendment "encouraged" racial discrimination.In 1964, pursuant to an initiative and...
decision overturned Proposition 14 in 1967 in favor of the Equal Protection Clause of the Fourteenth Amendment.
Another concern is the fact that on more than one occasion, the federal government has threatened to withhold highway funds from states which did not pass certain articles of legislation. Any state which lost highway funding for any extended period would face financial impoverishment, infrastructure collapse or both. Although the first such action (the enactment of a national speed limit) was directly related to highways and done in the face of a fuel shortage, most subsequent actions have had little or nothing to do with highways and have not been done in the face of any compelling national crisis. An example of this would be the federally mandated drinking age of 21. Critics of such actions feel that when the federal government does this they upset the traditional balance between the states and the federal government.
More recently, the issue of states' rights has come to a head when the Base Realignment and Closure Commission (BRAC) recommended that Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
and the Department of Defense
United States Department of Defense
The United States Department of Defense is the U.S...
implement sweeping changes to the National Guard
United States National Guard
The National Guard of the United States is a reserve military force composed of state National Guard militia members or units under federally recognized active or inactive armed force service for the United States. Militia members are citizen soldiers, meaning they work part time for the National...
by consolidating some Guard installations and closing others. These recommendations in 2005 drew strong criticism from many states, and several states sued the federal government on the basis that Congress and the Pentagon would be violating states' rights should they force the realignment and closure of Guard bases without the prior approval of the governors from the affected states. After Pennsylvania
Pennsylvania
The Commonwealth of Pennsylvania is a U.S. state that is located in the Northeastern and Mid-Atlantic regions of the United States. The state borders Delaware and Maryland to the south, West Virginia to the southwest, Ohio to the west, New York and Ontario, Canada, to the north, and New Jersey to...
won a federal lawsuit to block the deactivation of the 111th Fighter Wing
111th Fighter Wing
The United States Air Force's 111th Fighter Wing is an Air National Guard fighter unit located at NAS Willow Grove, Pennsylvania.-Mission:To maintain highly trained, well-equipped, and motivated military forces in order to provide combat-ready OA-10/A-10 aircraft and support elements in response to...
of the Pennsylvania Air National Guard
Pennsylvania Air National Guard
The Pennsylvania Air National Guard is the air force militia of the U.S. state of Pennsylvania. It is, along with the Pennsylvania Army National Guard, an element of the Pennsylvania National Guard. It is considered a part of the United States Air Force, as well as of the state.-Overview:The...
, defense and Congressional leaders chose to try to settle the remaining BRAC lawsuits out of court, reaching compromises with the plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
states.
Current states' rights issues include the death penalty, assisted suicide
Assisted suicide
Assisted suicide is the common term for actions by which an individual helps another person voluntarily bring about his or her own death. "Assistance" may mean providing one with the means to end one's own life, but may extend to other actions. It differs to euthanasia where another person ends...
, gay marriage and the medicinal use of marijuana, the last of which is in violation of federal law. In Gonzales v. Raich
Gonzales v. Raich
Gonzales v. Raich , 545 U.S. 1 , was a decision by the United States Supreme Court ruling that under the Commerce Clause of the United States Constitution, the United States Congress may criminalize the production and use of home-grown cannabis even where states approve its use for medicinal...
, the Supreme Court ruled in favor of the federal government, permitting the Drug Enforcement Administration
Drug Enforcement Administration
The Drug Enforcement Administration is a federal law enforcement agency under the United States Department of Justice, tasked with combating drug smuggling and use within the United States...
(DEA) to arrest medical marijuana patients and caregivers. In Gonzales v. Oregon
Gonzales v. Oregon
Gonzales v. Oregon, 546 U.S. 243 , was a decision by the United States Supreme Court, which ruled that the United States Attorney General could not enforce the federal Controlled Substances Act against physicians who prescribed drugs, in compliance with Oregon state law, for the assisted suicide of...
, the Supreme court ruled the practice of physician-assisted suicide in Oregon
Oregon
Oregon is a state in the Pacific Northwest region of the United States. It is located on the Pacific coast, with Washington to the north, California to the south, Nevada on the southeast and Idaho to the east. The Columbia and Snake rivers delineate much of Oregon's northern and eastern...
is legal.
These concerns have led to a movement sometimes called the State Sovereignty movement or "10th Amendment Sovereignty Movement".
10th Amendment Resolutions
In 2009-2010 thirty eight states have introduced resolutions to reaffirm the principles of sovereignty under the Constitution and the 10th Amendment; Nine states have passed the resolutions. These non-binding resolutions, often called “state sovereignty resolutions” do not carry the force of law. Instead, they are intended to be a statement to demand that the federal government halt its practices of assuming powers and imposing mandates upon the states for purposes not enumerated by the Constitution.States' rights and the Rehnquist Court
The Supreme Court's University of Alabama v. GarrettBoard of Trustees of the University of Alabama v. Garrett
Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 , was a United States Supreme Court case about Congress's enforcement powers under the Fourteenth Amendment to the Constitution...
(2001) and Kimel v. Florida Board of Regents
Kimel v. Florida Board of Regents
Kimel v. Florida Board of Regents, 528 U.S. 62 was a United States Supreme Court case that determined that the Congress's enforcement powers under the Fourteenth Amendment to the Constitution did not extend to the abrogation of state sovereign immunity under the Eleventh Amendment where the...
(2000) decisions allowed states to use a rational basis review
Rational basis review
Rational basis review, in U.S. constitutional law, refers to a level of scrutiny applied by courts when deciding cases presenting constitutional due process or equal protection issues related to the Fifth Amendment or Fourteenth Amendment. Rational basis is the lowest level of scrutiny that a...
for discrimination against the aged and disabled, arguing that these types of discrimination were rationally related to a legitimate state interest, and that no "razorlike precision" was needed." The Supreme Court's United States v. Morrison
United States v. Morrison
United States v. Morrison, is a United States Supreme Court decision which held that parts of the Violence Against Women Act of 1994 were unconstitutional because they exceeded congressional power under the Commerce Clause and under section 5 of the Fourteenth Amendment to the Constitution.-...
(2000) decision limited the ability of rape victims to sue their attackers in federal court. Chief Justice William H. Rehnquist explained that "States historically have been sovereign" in the area of law enforcement, which in the Court's opinion required narrow interpretations of the Commerce Clause and Fourteenth Amendment.
Kimel, Garrett and Morrison indicated that the Court's previous decisions in favor of enumerated powers and limits on Congressional power over the states, such as United States v. Lopez
United States v. Lopez
United States v. Alfonso Lopez, Jr., was the first United States Supreme Court case since the New Deal to set limits to Congress's power under the Commerce Clause of the United States Constitution.-Background:...
(1995), Seminole Tribe v. Florida
Seminole Tribe v. Florida
Seminole Tribe of Florida v. Florida, 517 U.S. 44 , was a United States Supreme Court case which held that Article One of the U.S. Constitution did not give the United States Congress the power to abrogate the sovereign immunity of the states that is further protected under the Eleventh Amendment...
(1996) and City of Boerne v. Flores
City of Boerne v. Flores
City of Boerne v. Flores, 521 U.S. 507 , was a Supreme Court case concerning the scope of Congress's enforcement power under the fifth section of the Fourteenth Amendment...
(1997) were more than one time flukes. In the past, Congress relied on the Commerce Clause
Commerce Clause
The Commerce Clause is an enumerated power listed in the United States Constitution . The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to...
and the Equal Protection Clause
Equal Protection Clause
The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"...
for passing civil rights bills, including the Civil Rights Act of 1964
Civil Rights Act of 1964
The Civil Rights Act of 1964 was a landmark piece of legislation in the United States that outlawed major forms of discrimination against African Americans and women, including racial segregation...
.
Lopez limited the Commerce Clause to things that directly affect interstate commerce, which excludes issues like gun control laws, hate crimes, and other crimes that affect commerce but are not directly related to commerce. Seminole reinforced the "sovereign immunity of states" doctrine, which makes it difficult to sue states for many things, especially civil rights violations. The Flores "congruence and proportionality" requirement prevents Congress from going too far in requiring states to comply with the Equal Protection Clause, which replaced the ratchet theory advanced in Katzenbach v. Morgan
Katzenbach v. Morgan
Katzenbach v. Morgan, 384 U.S. 641 , was a United States Supreme Court case regarding the power of Congress, pursuant to Section 5 of the Fourteenth Amendment, to enact laws which enforce and interpret provisions of the Constitution.- Facts :...
(1966). The ratchet theory held that Congress could ratchet up civil rights beyond what the Court had recognized, but that Congress could not ratchet down judicially recognized rights. An important precedent for Morrison was United States v. Harris
United States v. Harris
United States v. Harris, , sometimes referred to as the Ku Klux Case, was a case in which the Supreme Court of the United States held that it was unconstitutional for the federal government to penalize crimes such as assault and murder. It declared that the local governments have the power to...
(1883), which ruled that the Equal Protection Clause did not apply to a prison lynching because the state action doctrine applies Equal Protection only to state action, not private criminal acts. Since the ratchet principle was replaced with the "congruence and proportionality" principle by Flores, it was easier to revive older precedents for preventing Congress from going beyond what Court interpretations would allow. Critics such as Associate Justice
Associate Justice of the Supreme Court of the United States
Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...
John Paul Stevens
John Paul Stevens
John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...
accused the Court of judicial activism
Judicial activism
Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...
(i.e., interpreting law to reach a desired conclusion).
The tide against federal power in the Rehnquist court was stopped in the case of Gonzales v. Raich
Gonzales v. Raich
Gonzales v. Raich , 545 U.S. 1 , was a decision by the United States Supreme Court ruling that under the Commerce Clause of the United States Constitution, the United States Congress may criminalize the production and use of home-grown cannabis even where states approve its use for medicinal...
, in which the court upheld the federal power to prohibit medicinal use of cannabis
Cannabis
Cannabis is a genus of flowering plants that includes three putative species, Cannabis sativa, Cannabis indica, and Cannabis ruderalis. These three taxa are indigenous to Central Asia, and South Asia. Cannabis has long been used for fibre , for seed and seed oils, for medicinal purposes, and as a...
even if states have permitted it. Rehnquist himself was a dissenter in the Raich case.
States' rights as "code word"
During the heyday of the African-American civil rights movement, the term "states' rights" was used as a code wordDog-whistle politics
Dog-whistle politics, also known as the use of code words, is a type of political campaigning or speechmaking which employs coded language that appears to mean one thing to the general population but has a different or more specific meaning for a targeted subgroup of the audience...
by defenders of segregation. In 1948 it was the official name of the "Dixiecrat
Dixiecrat
The States' Rights Democratic Party was a short-lived segregationist political party in the United States in 1948...
" party led by white supremacist presidential candidate Strom Thurmond
Strom Thurmond
James Strom Thurmond was an American politician who served as a United States Senator. He also ran for the Presidency of the United States in 1948 as the segregationist States Rights Democratic Party candidate, receiving 2.4% of the popular vote and 39 electoral votes...
. Democratic governor George Wallace
George Wallace
George Corley Wallace, Jr. was the 45th Governor of Alabama, serving four terms: 1963–1967, 1971–1979 and 1983–1987. "The most influential loser" in 20th-century U.S. politics, according to biographers Dan T. Carter and Stephan Lesher, he ran for U.S...
, of Alabama
Alabama
Alabama is a state located in the southeastern region of the United States. It is bordered by Tennessee to the north, Georgia to the east, Florida and the Gulf of Mexico to the south, and Mississippi to the west. Alabama ranks 30th in total land area and ranks second in the size of its inland...
, who famously declared in his inaugural address in 1962, "Segregation now! Segregation tomorrow! Segregation forever!"—later remarked that he should have said, "States' rights now! States' rights tomorrow! States' rights forever!" Wallace, however, claimed that segregation was but one issue symbolic of a larger struggle for states' rights; in that view, which some historians dispute, his replacement of segregation with states' rights would be more of a clarification than a euphemism
Euphemism
A euphemism is the substitution of a mild, inoffensive, relatively uncontroversial phrase for another more frank expression that might offend or otherwise suggest something unpleasant to the audience...
.
In 2010, Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
governor Rick Perry
Rick Perry
James Richard "Rick" Perry is the 47th and current Governor of Texas. A Republican, Perry was elected Lieutenant Governor of Texas in 1998 and assumed the governorship in December 2000 when then-governor George W. Bush resigned to become President of the United States. Perry was elected to full...
's use of the expression "state's rights", to some, was reminiscent of "an earlier era when it was a rallying cry against civil rights.". During an interview with The Dallas Morning News
The Dallas Morning News
The Dallas Morning News is the major daily newspaper serving the Dallas, Texas area, with a circulation of 264,459 subscribers, the Audit Bureau of Circulations reported in September 2010...
, Perry made it clear that he supports the end of segregation, including passage of the Civil Rights Act. Texas president of the NAACP Gary Bledsoe stated that he understood that Perry wasn't speaking of "states' rights" in a racial context; but others still felt offended by the term because of its past misuse.
See also
- Origins of the American Civil WarOrigins of the American Civil WarThe main explanation for the origins of the American Civil War is slavery, especially Southern anger at the attempts by Northern antislavery political forces to block the expansion of slavery into the western territories...
- FederalismFederalismFederalism is a political concept in which a group of members are bound together by covenant with a governing representative head. The term "federalism" is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and...
- Compact theoryCompact theoryCompact theory is a theory relating to the development of some federal constitutions.-Compact theory in the United States:Regarding the Constitution of the United States, the compact theory holds that the nation was formed through a compact agreed upon by all the states, and that the federal...
- Rule according to higher lawRule according to higher lawThe rule according to a higher law means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice...
Further reading
- Jefferson DavisJefferson DavisJefferson Finis Davis , also known as Jeff Davis, was an American statesman and leader of the Confederacy during the American Civil War, serving as President for its entire history. He was born in Kentucky to Samuel and Jane Davis...
, "The Doctrine of State Rights" (1890). The North American Review, Vol. 150, No. 399, pp. 205–219. - Frederick D. Drake, ed. States' Rights and American Federalism: A Documentary History (1999)
- James J. KilpatrickJames J. KilpatrickJames Jackson Kilpatrick was an American editorial columnist and grammarian. He was a legal abstractionist, a social conservative, and an economic libertarian according to Harvard ....
. The Sovereign States: Notes of a Citizen of Virginia (Chicago: Henry Regnery Company, 1957); pro-states' rights book - Barak Y. Orbach et al. "Arming States’ Rights: Federalism, Private Lawmakers, and the Battering Ram Strategy," Arizona Law Review, vol. 52, 2010
External links
- Tenth Amendment Center Federalism and States Rights in the U.S.
- States' Rights in Encyclopedia Virginia
- A copy of transcript of Florida's 1957 Interposition Resolution, made available for public use by the State Archives of Florida
- Missouri Sovereignty Project "Institutionalizing" the 10th Amendment into the populace and political fabrics of Missouri.