Wednesday, April 12, 2017

States' rights: The ongoing debate

"Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort."

- Article 3, Section 3, Paragraph 1 of the Constitution

States' rights was a major issue in the Civil War

In the 1860's, the United States fought a bloody civil war with itself, where 624,000 Americans (more than half a million people) died in a major rebellion. Slavery may have been the root cause of the Southern states' desire for secession, but the "states' rights" arguments were the ones they used to try and prove their legal right to do so - a "right" that they believed they were entitled to. Regardless of whether they were right or not (and I believe they weren't myself), they were symptoms of a deep-rooted debate within American society over states' rights, which had roots going back far before the Civil War and into the Constitutional Convention - perhaps even to the Declaration of Independence. States thought they had the right to nullify federal laws, and considered themselves as independent nations bound into a mere league of nations, rather than mere provinces of a larger nation. They saw the "United States of America" much like we see the "United Nations" - a collection of independent nations that work together when convenient, and which would never surrender their sovereignty when they work together.

Confederate dead at Antietam, 1862

People were willing to fight and die for their views on the subject

When the United States was no longer perceived to be useful to the Southern states, they believed they had the right to secede from it, and win that secession by bloodshed. The Northern states believed with equal fervor that they had no such right to secede, and were willing to suppress this by bloodshed. Thus both sides were willing to fight and die for their own view of states' rights, and a bitter civil war was fought partially over that divisive issue about the role of states. (Although I should acknowledge that there were other factors at work here, and there are other root causes of this war.) The debate continues in full force today (although without the "bloodshed" part), as we continue to define the role of states in the Union. Thus, a closer look at how "states' rights" works might be useful here; answering what responsibilities states have to each other, what rights they still retain at this time, and what advantages they derive from the Union in the 21st century.

Constitution of the United States

The federal Constitution is the "supreme law of the land"

The Constitution contains several passages limiting "states' rights" in the United States. The most important of these passages may be this one, which says that "This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding." (Source: Article 6, Section 2) The Constitution further said that "The senators and representatives before-mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States." (Source: Article 6, Section 3) Thus the national Constitution was made wholly superior to the state constitutions and laws. I might also mention here that the Congress likewise has the power to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes" (Source: Article 1, Section 8, Paragraph 3) Thus interstate commerce is exclusively under federal control. Many other "implied powers" are also claimed under this clause, which is one of the major controversies surrounding "states' rights."

Independence Hall

There are certain things states cannot do

In a number of passages, the Constitution contained restrictions on the things that states could do; and explicitly forbade them from doing certain things. These things ranged from economic powers to granting titles of nobility, which was forbidden to both the state governments and the federal government. The relevant passage, for example, said that no state shall "grant letters of marque or reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility." (Source: Article 1, Section 10, Paragraph 1) On the subject of economics, one passage said that "No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress." (Source: Article 1, Section 10, Paragraph 2) Other restrictions on the states were more military in nature, and were violated by the Confederacy during the Civil War. (More on that in a later paragraph of this post.) Some of the provisions only apply when the national Congress withholds its consent to these actions, while other items in the first paragraph apply even if this consent is given (which would be illegitimate even if it were actually done). Nonetheless, these prohibitions in the Constitution are binding either way; and were clearly meant to be so.

Supreme Court of California, the Union's largest state

States have responsibilities to other states in the Union

In other passages, the states assumed responsibilities to other states, which were meant to work both ways. For example, the Constitution said that "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof." (Source: Article 4, Section 1) The Constitution also said that "A person charged in any state with treason, felony, or other crime, who shall flee justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime." (Source: Article 4, Section 2, Paragraph 2) Thus the states derived certain advantages from the responsibilities of other states with respect to them, and assumed certain responsibilities to these other states in their turn.

1 Police Plaza, the headquarters of the New York City Police Department (or "NYPD")

States have responsibilities to citizens of their state (and others)

The states also have a responsibility to respect citizens of other states (and even their own), since the Constitution said that "The Citizens of each state shall be entitled to all privileges and immunities of Citizens in the several states." (Source: Article 4, Section 2, Paragraph 1) The Fourteenth Amendment later clarified that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor to deny to any person within its jurisdiction the equal protection of the laws." (Source: Fourteenth Amendment, Section 1 - ratified 1868) Thus certain clauses in the Bill of Rights became applicable to the states as well as the federal government, which was a change from how it was done in previous generations.

United States Bill of Rights

What rights do states have under the Constitution?

Thus far, I have talked about responsibilities that states have - whether to the Union, or to other states, or to the citizens of various states. What of the rights that states have? Do they derive any benefits from being part of this Union, even when it restricts their sovereignty?

Great Seal of the United States, with the Latin words "E Pluribus Unum" (or "Out of Many, One")

A partial list of some recognized "states' rights"

It would be beyond the scope of this post to give a complete list of states' rights, but one might mention here that the Constitution protected states from export duties when it said that "No tax or duty shall be laid on articles exported from any state." (Source: Article 1, Section 9, Paragraph 5). It also protected them from trade favoritism towards other states when it said that: "No preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another: nor shall vessels bound to, or from one state, be obliged to enter, clear, or pay duties in another." (Source: Article 1, Section 9, Paragraph 6) A later amendment protected states from lawsuits by other states - including foreign states - when it said that "The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign state." (Source: Eleventh Amendment, ratified 1795) There is also an interesting clause in a later amendment, which is the one that repealed Prohibition (the Twenty-First Amendment, ratified 1933). It said that "The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." (Source: Twenty-First Amendment, Section 2) Thus it is left to the states to determine whether alcohol is legal within their own borders, and these policies vary somewhat between the states.

The advantages that states derived (and continue to derive) from the Union

The best summary of the advantages that states derive might be found in the preamble of the Constitution itself: "We, the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." (Source: Preamble to the Constitution) The part about "form[ing] a more perfect Union" was undoubtedly a major part of this, I should note here, but I think the biggest reason may have been to "provide for the common defense" of the country, since the combined military of the several states is more powerful than the separate forces of any one of them. The military advantages of the Union may have been the biggest reason for its formation in the first place, and they may continue today to be the most important advantages that the states derive from the Union. The Constitution further said that "The United States shall guarantee to every state in this Union, a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence." (Source: Article 4, Section 4) Thus the Constitution drove home the advantages of the Union with regard to defense.

The bombardment of Fort McHenry in the British invasions at Baltimore, 1814 - 
which inspired the poem "The Star-Spangled Banner" that became the national anthem

Certain powers "reserved to the states respectively" under the Tenth Amendment

Even with all these things, though, the states were worried about the power of the federal government; and feared that it would expand its power ever more as the years went on. Thus they threw in a Tenth Amendment to the Constitution, which said that "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." (Source: Tenth Amendment) As we have seen, there are a great many passages in the Constitution prohibiting various powers to the states; but the Constitution nonetheless reserves many powers to them as well, and gives them room to maneuver within this framework. The part about "to the people" may require special commentary here, since there are clearly some powers prohibited to any kind of government in this country - whether state, local, or federal (such as the parts about "ex post facto laws" and "bills of attainder"). Thus the amendment decided to leave open the possibility (and wisely so) that certain powers could be prohibited to both the state and federal governments. They thus included the part about "to the people" to prevent states from assuming these forbidden powers "not delegated to the United States" merely because they were "not delegated to the United States." They may have actually preserved these prior passages in the Constitution by so doing. (One power not "prohibited ... to the states" is the power of taxation, which they possess concurrently with the federal government. The taxation policies of the states thus vary somewhat.)

Confederate flag, long associated with "states' rights" in this country

States' rights and the Confederacy

The doctrine of "states' rights" is today associated with the Confederacy in many people's minds. This is because the Confederacy invoked "states' rights" in defending its attempts to secede from the Union. Many of the Confederates (including their president Jefferson Davis) tried to justify the rebellion on constitutional grounds, and said that secession from the Union fell under the province of "states' rights" (a false claim, but one that they believed nonetheless). For example, the Confederate president Jefferson Davis tried to invoke the Tenth Amendment in favor of this argument, by saying that "all powers not delegated to the Government of the Union were reserved to the States respectively, or to the people." (Source: Davis's memoir "The Rise and Fall of the Confederate Government," Chapter XI) In paraphrasing the Tenth Amendment here, he conveniently omitted the phrase "nor prohibited by [the Constitution] to the States," which would seem somewhat misleading for a modern reader. Many of the powers that the Confederacy was then claiming were prohibited explicitly by various clauses in the Constitution. To prove this, I will give a few examples of clauses that the Confederacy violated here.

Jefferson Davis, the president of the Confederacy

The Confederacy went against the Constitution during the Civil War ...

For example, the Constitution said that "No state shall enter into any treaty, alliance, or confederation" (Source: Article 1, Section 10, Paragraph 1) - something that the Southern states clearly violated in their attempts to form a new nation by a "confederacy." They also violated the part of the Constitution about how "No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in a war, unless actually invaded, or in such imminent danger as will not admit of delay." (Source: Article 1, Section 10, Paragraph 3) Before someone objects that the Southern states were "actually invaded" by the North, or in such "imminent danger as [would] not admit of delay," the enforcement of national laws is not considered an "invasion" - indeed, the Constitution says explicitly that the president "shall take care that the laws be faithfully executed" (Source: Article 2, Section 3). Thus the president has a constitutional duty to enforce the laws (including in the Southern states); and any allocation of military or police forces to this purpose is constitutional. (Resistance of such law-enforcing actions is, by contrast, unconstitutional.) Another part of the Constitution even says that "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." (Source: Article 3, Section 3, Paragraph 1) Thus it is clear that the Confederacy went against the Constitution when it launched a violent rebellion against the government, and did not meet the constitutional requirements for being "actually invaded" or in such "imminent danger as [would] not admit of delay." Law enforcement, it would seem to me, is not an "invasion" in this sense; and in more than one way, the Confederacy thus violated the Constitution.

Union dead at Gettysburg, 1863

... but not all advocacy for "states' rights" is pro-Confederate

The Confederacy's advocacy for "states' rights" has made the term somewhat unpopular in parts of the United States today. Many even seem to consider it "tainted" by its association with the Confederacy, and to consider all protests against federal actions on these grounds to be suspect. "Because the 'states' rights' are today associated with the now-discredited Confederate views on secession and slavery," this argument goes, "the whole concept of 'states' rights' must be equally discredited, and as racist as slavery is." Given that virtually no one today advocates a "confederation" with other states in the Union, or "engag[ing] in a war" without the consent of Congress, or especially in "levying war" against the United States (the very definition of treason in this country), this argument would seem to be stretching it at the very least, if not entirely engaging in straw-man arguments. But beyond the straw-man fallacies inherent in some of these Confederate comparisons today, the allegations also suffer from the "guilt by association" fallacy, because they assert that these views must be discredited simply because someone whom they dislike once held them. We might as well say that we distrust the belief that breathing was necessary for human life, because the entire Confederacy once believed it (and they most certainly did). This kind of thinking bears little (if any) resemblance to valid logic, and yet it enjoys much support today from people who confuse the two. I am confident that a critical examination of these arguments can help the truth of the matter to come forward and be heard.

Flag of the United States

The truth about states' rights is somewhere in the middle

In summary, the Constitution clearly prohibits many things to the states (as we have seen), but the states still have many rights in this country today, and they continue to derive numerous advantages from their membership in the Union.

Footnote to this blog post:

The Constitution also says that "New states may be admitted by the Congress into this union; but no new state shall be formed or erected within the jurisdiction of any other state, nor any state be formed by the junction of two or more states, without the consent of the legislatures of the states concerned, as well as of the Congress." (Source: Article 4, Section 3, Paragraph 1) Thus, every state admitted since this time was first required to ratify the Constitution (which they all did). The Constitution also said that "The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this constitution shall be so construed as to prejudice the claims of the United States, or of any particular state." (Source: Article 4, Section 3, Paragraph 2) Thus the Constitution protected the territorial rights of all the states.

If you liked this post, you might also like:

"The Civil War" (PBS series)

"The Abolitionists" (PBS movie)

Dred Scott v. Sandford (proslavery decision)

Part of a series about
U. S. Constitution

Influences on the Constitution

Hobbes and Locke: Anarchy, social contract theory, and unalienable rights
Public and private property: When can you take away someone's private property as taxes?
Polybius: A commentator on the "mixed constitution" of the Roman Republic
Magna Carta (1215): The creation of Parliament, and the limits upon the power of the King
Sir Edward Coke: The Petition of Right (1628) and other important writings
Virginia Declaration of Rights (1776): Another influence on the United States Bill of Rights
The Declaration of Independence (July 4, 1776): Philosophically important
Representative government: The advantages of a republic over a direct democracy
Baron de Montesquieu: Theory of separation of powers and checks & balances

The Constitution itself, and the story behind it

Convention at Philadelphia: The writing of the Constitution (1787)
States' rights: The conflict between the "several states" and the federal government
The Congress: Its power to make laws, and the president's power to veto them (in some cases)
Congress versus the president: Five limits on presidential power (besides impeachment)
Powers of Congress: A few reasons why the Congressional elections are so important
Elected officials: A few ways that the Constitution keeps our politicians under control
Frequency of elections: So how long do all of these people serve, anyway?
Representation: So who decides how many votes each state gets?
Slavery: The complicated legacy of the "Three-Fifths Clause"
The presidency: Making decisions for the police, military, and foreign diplomacy
Impeachment and removal: The most dramatic checks upon the power of presidents
The courts: "Good behaviour," some important judicial powers, and how they're appointed
Miscellaneous: Amendment process, "supreme law of the land," and some closing remarks

Debates over the Constitution, then and since

Debates over ratification: Whether to adopt the Constitution in the first place
The "Federalist Papers": Frequently asked questions about them, and why they're important
Who is "Publius"?: The secret pen name of the men who wrote the Federalist Papers
Debates over checks & balances: Do they actually conflict with separation of powers?
The Bill of Rights: Important in the debates over ratification (adopted 1791)
The First Amendment: Debates over freedom of religion, and public "establishment" of religion
The First Amendment: Freedom of speech, freedom of the press, and peaceable assemblies
The Second Amendment: Constitutional debates on the people's right to bear arms
Rights to fair trial: Judicial restraints on the power of the police and the president
Rights of the accused: The balance between individual protections and criminal justice
Congressional pay: The amendment that never made it into the Bill of Rights
Abolishing slavery: The things that led up to the famous antislavery amendment
Backup plans: Vacancy, disability, and presidential elections without a clear majority
Voting rights: Some important amendments about who is allowed to vote in this country

Epilogue: Some thoughts about civics education

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