State Rights

If our Constitution means anything, it means that we, the Federal Government, are entrusted with preserving life, liberty and the pursuit of happiness." .

Why do we value state autonomy in our federal system? Throughout much our our history, a significant impetus behind the States Rights movement was the desire to preserve and protect slavery and post civil war segregation. This is not to suggest that all proponents of States Rights were so motivated. But most certainly, the mantle of States Rights was worn by many who cared far more about insulating racism from federal government interference, than they did about the true reasons behind our federal system. Racist advocates for States Rights gave the concept a bad name.

This points out the importance of thinking clearly about the real structural reasons for supporting States Rights. A "right to bear arms" advocate may, for example, become an advocate of states rights when the Congress and President are considering gun control, but then later advocate for national legislation prohibiting State products liability lawsuits against gun makers. History is replete with persons who have advocated for State Sovereignty primarily because they oppose the prevailing majority at the national level. This is not principled support for state sovereignty; it is simply power politics.

What are the legitimate reasons for supporting state autonomy?

1. Democratic Laboratories Some support state autonomy, because they believe that the states serve as democratic laboratories, providing tests of different approaches to the great public problems.
2. Alternative available Some support state autonomy, because it provides an alternative approach--if you don't like the way things are done in New York, you can always move to South Dakota.
3. Business Protection Some support state autonomy, because it discourages state regulation of business. When, for example, a minimum wage must be imposed on a state-by-state basis, it makes it far more difficult for individual states to make their policies stick. Business may threaten to leave for states with lesser regulation. This leads to a tendency toward regulation by the least common denominator.
4. Smaller is closer and better. Some support state autonomy, because they believe that state government is inherently closer to the people. Is this this reason for supporting state autonomy still valid given the current population of our major states?

But what is the role of the Constitution, and the courts, in actually preserving state autonomy? The Constitution's primary protection of state autonomy is not the Courts; it is democracy and the checks and balances contained in our federal constitution. When the federal government gets too powerful, ultimately the people have the power to remove the political representatives which have made it too powerful and replace them with representatives who promise to devolve power to the states. If federal taxes are too high, if bureaucrats interfere unduly with local school boards, if the regulatory burden on business becomes excessive, our founders expected that the first line of defense would be at the ballot box. To guarantee that the people could check the powers of the federal government, the founders carefully crafted checks and balances among the federal branches themselves. The Constitution contains a series of clearly defined protections to keep the judiciary, or Congress, or the Presidency in check. No similarly well-defined protections of States Rights exist. For this reason, the judiciary has had great difficulty arriving at a principled rationale for protecting state autonomy.

There is a danger inherent in aggressive judicial protection of states rights. The Courts may seek to protect states rights by overturning legislation against the will of the people. If the people believe that the federal government is currently in a better position to fulfill particular policy objectives, why does it make sense for the courts to interfere with that policy judgment. Is the court protecting states rights, or is it rather preventing Congress from carrying out the will of the people. When Congress passes a law prohibiting the carrying of guns near school buildings, one must ask whether it is the Courts function, or rather a political function, to decide that this represents an invasion of states rights. This problem is presented, of course, in any case where the Court overturns a law. But judicial interference with democratically passed legislation becomes more problematic because the founders left the Court with no clear constitutional guidance as to where to draw the line between national powers and state autonomy. When the Court interferes to protect and individual against the majority, it is protecting a single powerless individual against potential tyranny. But when the Court intervenes to prevent states rights, it is not accomplishing the same objective.

This lack of clarity has caused considerable difficulty in the Supreme Court decisions. We saw in a previous panel that a federal system is composed of a central federal government and state governments with independent powers. In McCulloch v Maryland, we saw that the Supremacy clause prevents the powers of states from unduly interfering with the powers of the federal government. Does the same principle apply to the exercise of federal powers which might interfere with a State's powers? Inherent in our federal system is protection of some level of State autonomy; but that protection cannot come from the Supremacy Clause; it comes rather from the inherent nature of our federal system.

In Collector v Day, (1871) the Supreme Court immunized the salary of state officers from federal taxation, but this decision was overruled in Helvering v Gerhardt,(1938). The protection of State's rights has been in flux in recent decades. In Maryland v Wirtz, (1968), the Court sustained application of federal minimum wage and overtime laws to state and municipal employees. Then, in 1976, the Supreme Court overruled that decision by a 5-4 vote in National League of Cities v Usery. Nine years later, the Court shifted back again in Garcia v San Antonio Metropolitan Transit Authority. ( 1985).

More to Come....In recent years, the Court has written further on this issue. We will visit recent decisions on state autonomy in the next panel.

More to come....There are several other principles which significantly affect federal-state relations. These include:

1. Eleventh Amendment immunities: To what extent may parties sue states, political subdivisions or state and local officers in Federal Court. To what extent are the limitations contained in the Eleventh Amendment over-ridden by subsequent amendments.
2. Judicial interference with pending or threatened state proceedings. To what extent may a party divert or frustrate a state criminal, tax, civil enforcement or other proceeding by pre-empting it with a federal proceeding.
3. Incorporation of federal constitutional protections into the fourteenth amendment. To what extent are civil liberties found in the Bill of Rights made applicable to the States via the fourteenth amendment.
4. Federal supervision of local democracy. To what extent may Congress and the federal courts supervise the fairness of state and local elections, by supervising apportionment, by assuring voting rights to minorities, by interfering with local patronage systems.
5. Interpretation of the Commerce Clause. To what extent will the courts interfere with state and local economic and environmental regulation under the dormant commerce clause.
6. Federal Pre-emption. To what extent will the courts prevent local regulation, which is not directly inconsistent with federal legislation, on the theory that Congressional legislation implicitly removes state authority in that area.

All of these areas will be eventually discussed in other panels. But one should keep in mind the possibility that the same courts, indeed the very same justices, who seek to protect states rights under the Tenth Amendment, Eleventh Amendment or other states rights theories, may at times sponsor rather aggressively interpretations which detract from state autonomy in the Commerce Clause and federal pre-emption context. Again, one is at times led to ask whether the judges and scholars on each side of each of these issues are seeking to preserve principled theories regarding federalism or rather seeking to implement favored economic or political philosophies.