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Constitutional Balance – Part III

By Mike Kapic / October 15, 2021 / Comments Off on Constitutional Balance – Part III

What ‘rights’ do states really have under the Constitution? Part III The dividing line is fiercely contested and always has been. But wherever one draws the line, it makes more sense to talk about ‘federalism’ than ‘states’ rights’ By Justin Collings  Sep 18, 2021 Editor’s note: In his April 4 address at the general conference of The Church…

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By Mike Kapic / September 3, 2021 / Comments Off on 15 Million Ballots Missing

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Constitutional Balance – Part III

What ‘rights’ do states really have under the Constitution? Part III

The dividing line is fiercely contested and always has been. But wherever one draws the line, it makes more sense to talk about ‘federalism’ than ‘states’ rights’

By Justin Collings  Sep 18, 2021

Editor’s note: In his April 4 address at the general conference of The Church of Jesus Christ of Latter-day Saints, President Dallin H. Oaks spoke of his belief that “the United States Constitution contains at least five divinely inspired principles”: popular sovereignty, the separation of powers, federalism, individual rights and the rule of law. This essay is the third in a five-part series that will address each of these principles.

An entire region felt itself besieged. The cards of power seemed stacked against a tiny, beleaguered cluster of states. Federal policy, pursued by a president from another part of the country, was wrecking the region’s interests. Some of the region’s leading statesmen held a convention to coordinate a united response. Firebrands talked of secession. The region’s handful of states, they insisted, might abandon the American Union and forge a regional confederacy all their own.

The year was 1814, not 1860, and the place was Hartford, Connecticut, not Charleston, South Carolina. The aggrieved partisans were New England Federalists enraged by James Madison’s war with England, not Southern Democrats alarmed by Abraham Lincoln’s election. Fortunately for the country, the threat of secession from the Hartford Convention of December 1814 was not serious. The firebrands were swiftly sidelined. Wiser heads prevailed. In time, news of Gen. Andrew Jackson’s victory at the battle of New Orleans vindicated President Madison’s administration of the War of 1812 and made the Hartford delegates look disloyal. But for a brief moment, a band of northern discontents had flown the flag of sovereign states’ rights.

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“States’ rights” is a phrase with baggage. For some, it has a dishonorable past and a malodorous smell. Its banners were hoisted by defenders of slavery in the 19th century and by champions of segregation in the 20th century. To many modern ears, talk of states’ rights has the ring of a racist dog whistle.

This response is understandable, but three qualifications are in order.

The first is that “states’ rights,” from the very beginning, was a two-edged sword. Yes, some Southerners invoked states’ rights to protect slavery, but other Southerners — including James Madison and Thomas Jefferson — invoked states’ rights to denounce the Sedition Act of 1798, a flagrant violation of the First Amendment, and Northern abolitionists invoked the principle to protest federal fugitive slave laws.

By contrast, defenders of slavery were only fair-weather proponents of states’ sovereignty. Their invocations of states’ rights were opportunistic and unprincipled. “Whenever a question arose of extending or protecting slavery,” observed the eminent historian Henry Adams, “the slaveholders became friends of centralized power.” States’ rights was then the mantra of the free states; “Massachusetts appealed to this protecting power as often and almost as loudly as South Carolina.” In other words, nothing about states’ rights was ever inherently pro-slavery.

The second clarification is that assertions of states’ rights are least persuasive when individual constitutional rights are at play. Madison presciently predicted that the greatest threat to individual freedoms would come from the states, not the federal government. Our early history proved Madison right, and the framers of the 14th Amendment responded by barring the states from infringing fundamental rights or from treating citizens unequally. Lamentably, subsequent Supreme Court decisions betrayed the 14 Amendment’s original promise. (Plessy v. Ferguson, which approved the odious principle of “separate but equal,” is only the most notorious example.) But by its plain terms, the 14th Amendment already barred the abhorrent practices that 20th-century segregationists defended by spuriously asserting states’ rights.

The final qualification is that “states’ rights” is a misnomer. The Constitution doesn’t grant “rights” to the states in the same way it grants rights to individuals. There is no “state’s rights” clause. Yes, the 10th Amendment makes explicit what the Constitution’s entire structure implies: “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.” But this is quite different from an affirmative grant of power or a positive protection of rights. Under the 10th Amendment, states’ powers are residual. The amendment operates by subtraction. By its terms, state governments wield only those powers that the people have neither granted to the federal government nor retained for themselves. State power begins where federal power ends.

Federalism: a tug of war between states and national government

The boundary between the two is blurry. The dividing line is fiercely contested and always has been. But wherever one draws the line, it makes more sense to talk about “federalism” (the balance of power between the federal government and the states) or “state autonomy” (constitutional limits on the federal government’s power to curb or constrain states) than to revive a fraught phrase like “states’ rights.”

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Fair enough, you might say. But what exactly is the nature of “federalism” under the Constitution? What are the precise contours of “state autonomy”?

Here history helps. In 1789, when George Washington swore the oath of office as president of the United States, the federal government was tiny. Washington oversaw a much larger staff as a planter presiding over Mount Vernon than as president presiding over the executive branch.

Today things look very different. The federal government employs more than 2 million civilian workers and disposes of a budget that tallies in the trillions of dollars. Today’s central government is a colossus of unprecedented scope. It resembles Behemoth and Leviathan, the legendary beasts of the Bible.

Unsurprisingly, the federal government’s activities have expanded with its size. Over time, this growth has raised persistent questions about the scope of federal power. For the most part, federal power has been a one-way ratchet. With the Supreme Court’s (occasionally reluctant) approval, the federal government has penetrated more and more spheres of American life. There are few signs that this expansion will slow soon.

This leads some to cheer and others to jeer. Even skeptics of federal power should acknowledge that the original Constitution created a central government of extensive powers. The Constitution empowered the federal government to tax and to spend, to raise armies and wage war, to regulate commerce and preempt conflicting state laws. It also conferred power to pass all laws “necessary and proper” to the exercise of enumerated powers. Federal powers are thus implied as well as explicit. They reach means as well as ends.

These principles were codified in landmark decisions by Chief Justice John Marshall during the 1810s and 1820s. But it wasn’t until the middle decades of the 20th century that the modern administrative state truly strained all substantive limits on federal power.

The hero (or villain) of this story is the commerce clause, which allows Congress “to regulate Commerce … among the several States.” The Supreme Court has always understood this language expansively, but in the aftermath of Franklin Roosevelt’s New Deal, the commerce power assumed unprecedented scope.

In 1942, in the case of Wickard v. Filburn, the Supreme Court unanimously approved an agricultural regulation that capped how much wheat a farmer could produce — even though the farmer in question grew wheat only to feed his livestock and family. Although farmer Filburn’s wheat never left his home state (or indeed, his own farm), the justices reasoned that any wheat grown anywhere in the country could affect the price of wheat in the interstate market. Even private production for home consumption was therefore part of interstate commerce, and Congress could validly regulate it.

The Wickardcase gave Congress and regulators a green light, and they pressed the gas with gusto. The next 50 years witnessed what one scholar called “the rise and rise of the administrative state” — the growth and growth of federal power. I sometimes call it, mixing metaphors, the Death Star Pac-Man Commerce Clause.

For one brief period, the Supreme Court ruled that Congress still couldn’t regulate the states as states — couldn’t, for instance, control how states treat their own employees — but the justices soon changed course, ruling that the states’ recourse against federal overreach lay not with the courts but with the political process. States could resist federal encroachment mostly by electing senators willing to hold the beast at bay.

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Around the end of the 20th century, and to the astonishment of many constitutional scholars, the court renewed its commitment to limiting federal power. In a series of landmark judgments, the court ruled that Congress cannot invoke the commerce clause to regulate noneconomic activity (such as gun possession) or to compel economic activity (such as purchasing health insurance). The justices affirmed limits on when states can be sued, and they ruled that Congress cannot require states to pass laws or enforce federal legislation. Nor, the court held, can Congress attach conditions on federal funding to states so drastic that they amount to coercion.

These were all important decisions, though their overall practical impact was modest. Other recent decisions — including expansive readings of the commerce clause to allow federal regulation of private drug consumption, as well as a sweeping interpretation of the necessary and proper clause — have pointed in the opposite direction.

The current court seems sympathetic to concerns about state autonomy, but no court decision is likely to significantly limit federal power. The real check on federal encroachment remains a political check. Concerned citizens should vote for candidates committed to state autonomy. Alarmed state officials should refuse to enable the federal juggernaut — even when it offers them goodies. Worried states should be wary of bureaucrats bearing federal subsidies.


But how worried should we be? Indeed, why should we care about federalism at all?

We should care about federalism, for one thing, because the Constitution commands it. As Chief Justice Marshall observed long ago, “the enumeration (of constitutional powers) presupposes something not enumerated.” Fidelity to the Constitution demands meaningful outer limits on federal power.

More pragmatically, we should care about state autonomy because autonomous states can experiment. Nearly 90 years ago, Supreme Court Justice Louis Brandeis noted how “a single courageous State may … serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Allowing individual states to serve as “laboratories for democracy” would, Brandeis believed, allow the rest of the country to see what works and what doesn’t. As states experiment and learn from one another, governance improves everywhere.

Finally, federalism lowers the stakes of national politics. Although most Americans identify as Americans first and state citizens second, variation among the states — particularly cultural variation — remains significant and sometimes stark. Utah and Connecticut are very different places — as are Massachusetts and Mississippi, Texas and Vermont. Apart from a crucial core of fundamental rights enshrined in the Constitution itself, there is no need for a one-size-fits-all, national solution to every issue under the sun. The scalding temperature of our national politics would drop dramatically if, on a host of issues, the federal government (including the federal judiciary!) would allow the states to live and let live. (States, of course, should allow one another the same privilege.) As things stand, partisans of all stripes scream for a federal response to virtually every divisive issue.

Sometimes, to be sure, partisans rediscover the virtues of federalism after failures in national elections. They like local solutions when they lack national power. “We are all federalists,” I once heard a wise judge say, “when we are losing.”


I believe that we should all be federalists at all times — win or lose, rain or shine, whoever’s foot now bears the boot, whoever’s ox has just been gored. We should be federalists as a matter of constitutional principle and prudent policy. When power is devolved to the government units closest to questions of concern and most capable of resolving them, Americans receive an unparalleled, experiential education in the art of self-government. And the ties that bind us together as a union will be stronger if we don’t strain or snap them in the quixotic pursuit of ideological purity and national conformity. Within proper limits, federalism makes for better governance, calmer national politics, and brighter prospects for government of the people, by the people, and for the people.

Justin Collings is a professor at Brigham Young University Law School and a fellow at the Wheatley Institution.

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Mike Kapic