Constitutional argument that state governments possess sovereignty, autonomous governing power that approximates the authority and status of the federal government.
The states’ rights argument dates back to the founding of the United States and the first national constitution, the Articles of Confederation
For two hundred years, constitutional questions have arisen when the national government’s delegated powers and states’ reserved powers have come into actual or potential conflict. Peaceful resolution of these disagreements required a legitimate and authoritative decision maker, and the candidates were the involved state or the national government (Congress or the Supreme Court). With few exceptions, the Court emerged as the final arbiter of states’ rights in conflict with federal law. For example, in McCulloch v. Maryland
A former Confederate officer, Associate Justice Horace Lurton supported a states' rights interpretation of the Tenth Amendment after he joined the Supreme Court in 1910.
Similarly in Cooper v. Aaron
John C. Calhoun, an American statesman and author who died in 1850, provided the nation’s most systematic and philosophical treatment of states’ rights. His theory of the “concurrent majority” posited that no action of the national government would be legitimate unless each separate interest represented in Congress would forgo its inherent right of veto and assent to the policy. States’ rights corollaries of this theory were that the states are sovereign, and as such, they adopted the Constitution and could repudiate the national compact whenever it would be in their interest.
This kind of states’ rights argument was presented to the Court in McCulloch by Luther Martin,
National supremacy rulings such as McCulloch and Cohens did not go uncontested. Strains of states’ rights theory were present on the Court during the mid-nineteenth century chief justiceship of Roger Brooke Taney, but it was not until the early twentieth century that the Court gave support to a full-blown theory of states’ rights known as “dual federalism
Probably the high-water mark of this brand of states’ rights was Hammer v. Dagenhart
Dual federalism was the term given to the Court’s theory that the Constitution created a system of dual supremacy: The national government was supreme in the exercise of its delegated powers, but the states were equally supreme in their exercise of reserved powers over local matters. The Court’s narrow interpretation of the reach of delegated powers, for example, the power to regulate interstate commerce, in effect defused the supremacy clause of Article VI. It was not until United States v. Darby Lumber Co.
The administration of President Richard M. Nixon gave rise to the phrase “new federalism,”
The Court became part of this spirit when it initiated a period of “judicial new federalism” in National League of Cities v. Usery
With judicial new federalism, the Court was saying something different from its “dual federalism” formulation of states’ rights. With dual federalism, the Court said that the Tenth Amendment freed states to regulate local matters free from federal interference. With judicial new federalism, the Court said that the Tenth Amendment prevented application of a general federal regulatory measure to a state’s “integral operations” which were the essence of “state sovereignty.” After struggling for nine years to sort out what were and were not “attributes of state sovereignty” to determine what could be regulated by the federal government, the Court brought this era of states’ rights to an end in Garcia v. San Antonio Metropolitan Transit Authority
In his dissent in Garcia, Justice William H. Rehnquist said that the Usery rule of states’ rights was “a principle that will, I am confident, in time again command the support of a majority of this Court.” His prophecy essentially came true in New York v. United States
This core of state sovereignty, the Court said, is violated when Congress commands state legislatures to legislate. In New York, the Court did not overrule Garcia, distinguishing Garcia’s approval of a general federal law being applied to a state from New York’s condemnation of a direct federal mandate to a state legislature. Five years later, Printz v. United States
In New York, Justice Sandra Day O’Connor wrote for the majority: “In the end, just as a cup may be half empty or half full, it makes no difference whether one views the question at issue in this case as one of ascertaining the limits of the power delegated to the Federal Government under the affirmative provisions of the Constitution or one of discerning the core of sovereignty retained by the States under the Tenth Amendment.” Her point was that either analysis the content of delegated powers or the content of reserved powers could lead to the same end, enhanced states’ rights. After New York, the Supreme Court used both approaches. In Printz, the majority stressed the Tenth Amendment in voiding the Brady Act. And in United States v. Lopez
A contemporary development in states’ rights is a state supreme court using its state constitution to give greater protection to a fundamental right than that accorded the same right by the U.S. Supreme Court using the U.S. Constitution. The rationale for this practice is a long-standing principle of states’ rights: the independent and adequate state grounds doctrine. In essence, this doctrine means that a state supreme court decision grounded solely in state law is final because the Supreme Court has no jurisdiction to review it. A corollary of the doctrine is that a state supreme court, compared with the U.S. Supreme Court, can be more protective, but never less protective, of an individual right.
Some applications of this states’ rights doctrine have been state supreme courts acting opposite the U.S. Supreme Court to permit students to collect signatures on political petitions in shopping malls, to allow challenges to school funding schemes based on local property taxes, and to provide enhanced protection from police searches of automobiles.
Readers might begin with either of two general works on the relationship between the states and the federal government: Robert F. Nagel’s The Implosion of American Federalism (New York: Oxford University Press, 2002) or John Thomas Noonan’s. Narrowing the Nation’s Power: The Supreme Court Sides with the States (Berkeley: University of California Press, 2002). Another way to begin a study of states’ rights is by looking at the theory’s roots in the United States before 1787. For extended discussion of the antifederalists’ arguments and the Founders’ motives and compromises, see Alpheus T. Mason’s The States’ Rights Debate: Antifederalism and the Constitution (New York: Oxford University Press, 1972) and Raoul Berger’s Federalism: The Founders’ Design (Norman: University of Oklahoma Press, 1987). The standard original source for explaining the Framers’ intent for state autonomy is The Federalist (1788) by Alexander Hamilton, James Madison, and John Jay. Readers should pay special attention to the tensions between Nos. 39, 27, and 44. A full appreciation of the states’ rights doctrine must include some familiarity with its radical expression, which is detailed in John C. Calhoun’s A Disquisition on Government (Indianapolis, Ind.: Bobbs-Merrill, 1953) and in The Nullification Era (New York: Harper & Row, 1967), edited by William W. Freehling. The eminent constitutional scholar Edward S. Corwin provides a clear exposition of the doctrinal evolution of national supremacy to dual federalism and back to national supremacy in The Commerce Power Versus State Rights (Princeton, N.J.: Princeton University Press, 1936). The demise of the Usery era and a justification for the new dual sovereignty era is found in Martin H. Redish’s “Doing It with Mirrors: New York v. United States and Constitutional Limitations on Federal Power to Require State Legislation,” Hastings Constitutional Law Quarterly (1993): 593. Erwin Chemerinsky’s large Federal Jurisdiction (4th ed. New York: Aspen, 2003) gives detailed analysis on all aspects of the complex topic. Jodie Lynn Boduch presents a relatively short and readable introduction to the topic in States’ Rights (San Diego: Greenhaven Press, 2006).
Articles of Confederation
Commerce, regulation of
Garcia v. San Antonio Metropolitan Transit Authority
McCulloch v. Maryland
National League of Cities v. Usery
Printz v. United States