States’ rights and state sovereignty Summary

The states’ rights argument dates back to the founding of the United States and the first national constitution, the Articles of ConfederationArticles of Confederation. The articles were drafted by delegates of the “states in Congress assembled” and explicitly provided for state sovereignty: “Each state retains its sovereignty, freedom, and independence.” The U.S. Constitution of 1789, however, makes no mention of sovereignty, implies popular sovereignty in the Preamble’s invocation of “We the people,” and explicitly declares national supremacy in Article VI: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof…shall be the supreme Law of the Land…, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” The first Congress in 1789 proposed what came to be the Tenth Amendment in order to pacify the antifederalists, the states’ rights advocates who opposed the Constitution of 1789. This amendment’s language still serves as the principal constitutional grounds for states’ rights arguments: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

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[case]McCulloch v. Maryland[MacCulloch v. Maryland] (1819), the great nationalist, Chief Justice John Marshall, in the opinion for the Court, wrote that the supremacy clause of Article VI prevented Maryland from taxing the Second Bank of the United States. Two years later in Cohens v. Virginia[case]Cohens v. Virginia[Cohens v. Virginia] (1821), the Court held that it and not the highest state court had final say on the meaning of the U.S. Constitution in a case involving a state conviction for selling federal lottery tickets.

Similarly in Cooper v. Aaron[case]Cooper v. Aaron[Cooper v. Aaron] (1958), the Court said in a school desegregation case that it, not Arkansas officials, was “supreme in the exposition of the law of the Constitution.” Some exceptions to the Court’s primacy in determining the boundaries of states’ rights and federal authority have been the Union’s military dominance in the Civil War, Congress’s authority to decide when general federal regulations apply to the states, and state supreme courts’ decision-making power over matters of purely state law.

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,Martin, Luther counsel for Maryland and an ardent states’ rights advocate. According to Martin, Maryland could tax the Second Bank of the United States because the states are “truly sovereign” and “possess supreme dominion.” The response of the Court, written by Chief Justice Marshall, was that the Constitution was the creation of the sovereign people, not of the states, and it was therefore superior to the states. In Texas v. White[case]Texas v. White[Texas v. White] (1869), the Court again had occasion to rule on the theory that a state could renounce its membership in the Union. The Court rejected radical state sovereignty in ruling that the Constitution “looks to an indestructible Union.” Therefore, Texas was not legally capable of secession.

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 federalismDual federalism.”

Probably the high-water mark of this brand of states’ rights was Hammer v. Dagenhart[case]Hammer v. Dagenhart[Hammer v. Dagenhart] (1918). In this case, the Court found that an attempt by Congress to prohibit the labor of children in factories and mines violated the Tenth AmendmentTenth Amendment. The Court’s rationale was that employment in these industries was a local matter reserved to state regulation by the Tenth Amendment.

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.[case]Darby Lumber Co., United States v.[Darby Lumber Co., United States v.] (1941) that the Court overruled Hammer and said that the Tenth Amendment was not a check on the delegated powers of Congress. With the Darby decision, Marshall was in ascendancy and Calhoun in decline. The Court had entered a new jurisprudential period of economic nationalism in which federal regulatory power repeatedly displaced states’ rights.

The administration of President Richard M. Nixon gave rise to the phrase “new federalism,” Federalismthe policy that the national executive and legislative branches should take steps to move power from the federal government back to the states. Subsequent presidential administrations continued to advocate new federalism policies.

The Court became part of this spirit when it initiated a period of “judicial new federalism” in National League of Cities v. Usery[case]National League of Cities v. Usery[National League of Cities v. Usery] (1976). In this case, the Court declared that the Tenth Amendment prevented the federal Fair Labor Standards Act (1938), which contained minimum-wage and maximum-hour regulations, from being applied to state and local governments. Although the federal government could apply these general regulatory measures to businesses operating in interstate commerce, it could not apply such regulations to states acting in their governmental capacities. The heart of the Court’s reasoning was that federal regulation of states struck at the states’ integrity by impairing their ability to carry out their core governmental functions. The Usery rule was the Court’s recognition once again of Tenth Amendment-based states’ rights.

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[case]Garcia v. San Antonio Metropolitan Transit Authority[Garcia v. San Antonio Metropolitan Transit Authority](1985). The Court overruled Usery, saying that its Tenth Amendment rationale had turned out to be “unworkable.” Henceforth, the Court said, members of Congress and not the justices would decide when states’ rights were a check on federal regulatory power.

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[case]New York v. United States[New York v. United States] (1992). In that case, the Court considered the application to the states of a congressional enactment, the Low-Level Radioactive Waste Policy Act of 1980. To encourage the states to provide disposal sites, Congress gave the states a choice between two mandates: accept the ownership and resulting liability for radioactive waste or regulate it according to federal guidelines. The Court ruled that both options violated the Tenth Amendment. Borrowing from The Federalist (1788), the New York majority said that the Constitution “leaves to the several States a residuary and inviolable sovereignty.”

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[case]Printz v. United States[Printz v. United States] (1997) extended the New York rule to a federal mandate to state administrative officials and gave this states’ rights principle the name of “dual sovereignty.”Dual sovereignty The issue in Printz was the constitutionality of the mandate of the federal Brady Handgun Violence Prevention ActBrady Handgun Violence Prevention Act (1993) that county and municipal chief law enforcement officers conduct a background check of would-be purchasers of handguns. To void the law, the majority used the Tenth Amendment principle of “dual sovereignty,” which represented the Framers’ intention to preserve “the States as independent and autonomous political entities.” The Printz rule was categorical and absolute, thus “no case-by-case weighing of the burdens or benefits is necessary.” The combined states’ rights legacy of New York and Printz was that the “Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.” Apparently left undisturbed by Printz, however, was the holding of South Dakota v. Dole[case]South Dakota v. Dole[South Dakota v. Dole] (1987) that the federal government could continue to use grants of money “with strings attached” to entice the states to do what the federal government could not directly mandate.

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[case]Lopez, United States v.[Lopez, United States v.] (1995), the Court focused on the limits of Congress’s delegated powers in voiding the Gun-Free School Zones Act of 1990. In Lopez, the Court said that Congress’s power to regulate interstate commerce extended only to “commercial” matters, which did not include guns at school.

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

Federalism

Garcia v. San Antonio Metropolitan Transit Authority

Interstate compacts

McCulloch v. Maryland

National League of Cities v. Usery

Printz v. United States

State constitutions

State courts

Tenth Amendment