States' Rights, Federal Wrongs

by C.J. Carnacchio

There is a commonly held and frightening belief among many Americans that the concept of states' rights is an antiquated political idea which no longer holds water in modern times. Proponents of this belief view the Constitution as a mere handbook in political theory, to be obeyed or ignored depending on how well it fits within contemporary circumstances.

But the idea of states' rights is not just some quaint political notion, it is an enduring part of constitutional law embodied in the Tenth Amendment, which states: "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." As long as this amendment remains a part of the Constitution, it must be given full meaning; the intention of the Framers must be acknowledged and respected.

In order to understand the Tenth Amendment and the concept of states' rights, it is first necessary to understand the role of the states in the Constitution. One indication of the Framers' concern for the states can be found in the fact that the word "state" or "states" is used 94 times in the 6, 000 words of the original seven articles of the Constitution. In Federalist 39, James Madison makes it clear that the ratification of the Constitution came from the people "not as individuals composing one entire nation, but as composing the distinct and independent States to which they belong."

It must not be forgotten that the states created the federal government to serve the common interests of the Union as a whole. They did not create the federal government as a master to be served. It was the states which consented to the drafting of the Constitution and undertook to bind themselves by its provisions: "Each State in ratifying the Constitution, is considered a sovereign body independent of all others, and only to be bound by its voluntary act." The result was a federal union of states in which the states delegated, not surrendered, some of their powers but retained all of their sovereignty.

The Tenth Amendment's protection of states' rights is two­fold in purpose. The first purpose is to prevent the accumulation of power in a centralized government which is remote from the people and relatively immune to popular restraints. As political sage Russell Kirk observed, "Astute lovers of freedom will assert state powers constantly, so that personal and local liberties may endure; the smaller the unit of government, the less possibility of usurpation, and the more immediate and powerful the operation of prescriptive influences." Liberty thrives in the politics of states' rights and localism; conversely, despotism flourishes in an environment of centralization and consolidation. The former breeds variety and independence; the latter breeds uniformity and servitude.

The Framers of the Constitution were quite clear in their desire to balance power between state governments and the federal government. Plainly, the intention of the Tenth Amendment was to restrict the federal government; to hold it within the strict boundaries of the delegated powers. Again in Federalist 39, Madison makes it crystal clear that the jurisdiction of the federal government was to extend "to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects." The states were to be "no more subject, within their respective spheres, to the general authority [the federal government], than the general authority is subject to them, within its own sphere."

Fellow Federalist Alexander Hamilton furthers Madison's arguments and gives some specifics in Federalist 45 when he states: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain to the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce...The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State." The word "no," used as a direct restraint on government, occurs twenty­six times in the seven articles of the Constitution and five times in the Bill of Rights.

Hamilton also makes it quite clear in Federalist 78 that in order for laws to be binding they must be made in pursuance of the Constitution and any statues that violate the authority of the states must be treated as acts of usurpation: "There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves..."

So, both Madison and Hamilton believed that states have a right to act or not to act, as they see fit, in the areas reserved to them by the Constitution. The states have duties which correspond to those rights, but these duties are owed to the citizens of the states, not the federal government. But, federal authorities have taken it upon themselves to incessantly interfere within each states' sphere of political liberty whenever they feel the states are not meeting the needs of the people. If there is disciplinary action to be taken against a state for not meeting its citizens' needs, it should be done by the people of that state who have been delegated that power, not by federal authorities.

The second purpose behind the Tenth Amendment's protection of states' rights is the recognition of the principle that local problems are best dealt with by the people most directly concerned. Who better understands local problems and who is better able to find local solutions than those closest to the matter? Obviously, those who live in the state or city have a vested interest in solving the problem swiftly and efficiently. Citizens exercising the spirit of localism to solve a problem is always more beneficial to liberty then the coercive action of a centralized authority.

The extreme centralization which the nation has endured for the better part of the twentieth century has left many local political spheres lacking in imagination, intelligence, and independence. Centralization has converted virtually every official and political aspirant in the smaller units of government into a venal and complacent agent of the federal bureaucracy.

A great majority of public officials now suffer from the "all eyes fixed upon Rome" syndrome. The great essayist and Jeffersonian liberal Albert Jay Nock recognized the beginnings of this disease in the 1930s under the statist Roosevelt regime: "They came to Rome with their hats in their hands, as governors, Congressional aspirants, and such­like now go to Washington. Their eyes and thoughts were constantly fixed on Rome, because recognition and preferment lay that way; and in their incorrigible sycophancy they became, as Plutarch says, like hypochondriacs who dare not eat or take a bath without consulting their physician."

The root of the federal government's permeation into state affairs and subsequent decimation of states' rights lies in the two C's: cash and coercion. The main political instrument of the two C's is a little thing called "matching funds" which are designed to stimulate spending in areas in which the almighty federal government has deemed a need for national action.

Matching funds work like this: If the states agree to put up the money for a certain program, the federal government will match the appropriation according to a ratio prescribed by Congress. More often than not, the federal government ends up paying well over half the costs. But, with federal money comes federal regulation and with federal regulation comes the death of states' rights. All too often, state governments have been willing to prostitute their political sovereignty for a federal grant here and there.

Barry Goldwater once summed up the matching funds program perfectly as "a mixture of blackmail and bribery. The States are told to go along with the program 'or else.' Once the federal government has offered matching funds, it is unlikely, as a practical matter, that a member of the State Legislature will turn down his State's fair share of revenue collected from all of the States. Understandably, many legislators feel that to refuse aid would be political suicide. This is an indirect form of coercion, but it is effective nonetheless."

If the Framers of the Constitution were to view the massive federal government of 1998, which extends its authority into every aspect of personal and public affairs, they would believe some violent revolution had occurred in American history which overthrew the Constitution. To those who would say that the concept of states' rights is an outdated and impractical political ideal, let me leave you with the words of James Madison: "Since the general civilization of mankind, I believe there are more instances of the abridgment of the freedom of the people by the gradual and silent encroachments of those in power, than by violent and sudden usurpations." MR

This article was published in the 11 February 1998 edition of The Michigan Review (Volume 16, Number 7).
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