Articles of Confederation and States Rights
Our forefathers had good reason to pass the Tenth Amendment preserving states rights. Having experienced the excesses of consolidated power in the crown, they knew then the danger was of too much power in one body. However, having seen the weakness in putting too much confidence in state sovereignty, where the lack of national power in the Articles of Confederation almost cost them the revolution, they knew something more was needed.
The idea behind the Constitutional Convention was to increase the federal power without weakening the states rights. The issue of power – and especially the great potential for a power struggle between the federal and the state governments – was extremely important to most Americans. Furthermore, Americans deeply distrusted government power and believed the best way to control its historical pursuit of growth was to keep the majority of it local.
States Rights and the Tenth Amendment
Adoption of the Constitution as it was drafted in the convention was opposed by a number of well-known patriots including Thomas Jefferson, Patrick Henry, Samuel Adams, and others. They wisely argued that without further constraints the Constitution would eventually lead to a strong, centralized power which would destroy the individual liberties of the people.
We can thank these wise guardians of personal liberty for the tenth (and other nine) amendments. Having outlined protections for those personal liberties held most dear, the Tenth Amendment was added as emphasis and a safeguard to limit the powers delegated to the federal government. In delegating just specific powers to the federal government, the states and the people, with some small exceptions, were free to continue exercising their sovereign powers.
When states rights are protected, communities flourish and the people are that much closer to the policymakers, and policymakers are that much more accountable to the people. Few Americans have spoken with their president; many have spoken with their mayor. Adherence to the Tenth Amendment is the first step towards ensuring liberty in the United States–liberty through decentralization.
States Rights and the Supreme Court
Though simply stated, the language of the Tenth Amendment defined the establishment and division of power between the Federal government and state governments. At one time, it was read very simply, if it is not in the Constitution, the federal government could not pass it to the states.
The original enemy to the principle of states rights and federalism was John Marshall. As the fourth Chief Justice of the Supreme Court, he handed down two major rulings to cut down states rights. One was McCulloch vs. Maryland.
In this case, he ruled that the Constitution grants the federal government implied powers to implement the Constitution’s express powers. Additionally, he opined that states rights may not impede valid constitutional exercises of power by the Federal government. In the other case, Gibbons vs. Ogden, he established that the federal government had the right to regulate interstate commerce by the Commerce Clause.
Through the years, states rights have continued to shrink through additional Supreme Court interpretations of the Commerce Clause—as well as interpretations of the “general welfare” language included in the preamble of the Constitution’s Article I, Section 8.
States Rights and Cooperative Federalism
FDR’s passage of New Deal snake oil took away more states rights. Sold as “Cooperative Federalism” people were told that the national and state governments would “cooperate” together to rise above the challenges of the Depression. They cooperated by the federal government telling the states what to do, and the states doing it.
Unfunded mandates from the Federal government have now swollen states’ budgets and created a vicious cycle of double taxation—where citizens are taxed federally to pay for bureaucrats to create regulations imposed on the states which raise taxes to pay for the mandates.
Those states who attempt to protect their citizens from federal intrusion by claiming states rights through the Tenth Amendment, usually wind up losing in court over federal courts’ interpretation of the Constitution’s Supremacy Clause.
This form of federalism increased and entrenched federal aid as well. Funds are distributed through federal grants, and since they come with a quid pro quo basis, they come with more federal control and power over the states.
States Rights and the 16th and 17th Amendments
The 16th and 17th amendments both gave unprecedented power to the federal government. The 16th amendment allowed the federal government to levy an income tax—opening the way for congressional tenure through vote buying.
The 17th amendment further significantly weakened states rights by eliminating their representation in Congress. Introduced as a way to correct the influence of large corporations at the state legislature level, it resulted in moving that influence farther from the people and ended in greater unchecked corruption and influence at the federal level.
When US Senators were appointed by state legislatures, as originally designated by the Constitution, the senators were more apt to protect states rights, and were viewed as the states “ambassador” to the federal government.
States Rights and Executive Orders
Executive Actions (also known as orders, directives, and proclamations) are not defined in the Constitution—in that there is no specific provision in the Constitution authorizing the President to issue them. However, Presidents have been issuing them since the inception of the Republic based upon Article II (of the Constitution. Article II states that “the executive power shall be vested in a President of the United States,” “the President shall be Commander in Chief of the Army and Navy of the United States,” and “he shall take care that the laws be faithfully executed.”
The key issue is that these instruments may directly or indirectly affect the substantive rights, duties or obligations of individual citizens. In addition, since executive actions equal “executive legislation,” they have important constitutional implications—particularly with respect to the separation of powers. This concern is justified considering that in a majority of cases they have been found “constitutional” by the courts and as a result been given the force and effect of law.