States Rights


There has been a lot of talk recently on states rights.  The Republican-Tea Party (RTP) constantly invokes the term and especially since we are at the 150th anniversary of the beginning of the American Civil War I thought that maybe it was a good time to examine this particular issue.

I think that before we even go into the discussion of states rights we should examine what the US Constitution actually states about these rights.

The parts of the Constitution that we are going to examine are the following:  The Supremacy Clause, The Necessary And Proper Clause and The Tenth Amendment.

After we examine these clauses we will dig into the issue of “states rights”.

The Supremacy Clause is Article VI Clause 2 and reads as follows:  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.

This clause establishes the US Constitution, federal statutes and US treaties as the supreme law of the land.  All state judges must follow federal law when a conflict arises between federal law and any state law or provision in any state constitution.

There have been a number of Supreme Court decisions to reaffirm this clause through the years.  In 1819 in McCulloch v. Maryland the Supreme Court reviewed a tax levied on the federally incorporated Bank of the United States.  The Court ruled that this tax was unconstitutional because it made a state statue supreme over federal statutes therefore violating the Supremacy Clause.

In 1859, in Ableman v. Booth, the Supreme Court stated that state courts cannot issue rulings the contradict federal courts.  The Court cited the Supremacy Clause and overturned a decision made by the Supreme Court of Wisconsin.

In 1958, in Cooper v. Aaron, the Court rejected repeated attempts of the state of Arkansas’ attempts to nullify a previous decision of the Supreme Court on desegregation (Brown v. Board of Education).  Arkansas using a flawed states rights theory had attempted to bypass the Supreme Court by passing these laws.  The Supreme Court declared this to be unconstitutional via the Supremacy Clause.

In 1982, in Edgar v. Mite Corporation, the Court ruled that “A state statue is void to the extent that it actually conflicts with a valid federal statue.”

Furthermore a state law will be found to violate the Supremacy Clause if one or both of these conditions exist.”1.  Compliance with both Federal and State laws is impossible and or 2.  State laws stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

The Necessary and proper Clause is from Article I Section 8 Clause 18 and reads as follows:  To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Basically this clause states that the Congress of the United States has the authority to make all laws which are necessary and proper for carrying out their powers which have previously been stated in the Constitution.

As with The Supremacy Clause the case of McCulloch v, Maryland is used as precedence.  Not only did this case state that Federal law is the supreme law of the land but it also asserts that the Congress has the right to pass all laws that are necessary and proper as well.

The final section of the Constitution that we are going to examine is the Tenth Amendment.  It reads as follows:  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.

This is the part of the Constitution that most states righters cling to.  They believe that this amendment adds fuel to their claim that the rights of the states are supreme.  This is simply not true.

The Tenth Amendment is similar to an earlier provision in the Articles of Confederation that guaranteed states to sovereignty, freedom and independence.

After the Constitution was ratified, some people wanted to add a similar amendment to the Constitution limiting powers of the federal government to “expressly” delegated thus denying the federal government “implied powers.”

However, the words “expressly” did not appear in the Tenth Amendment therefore the amendment did not reject the implied powers allowed by the Necessary and Proper Clause.

The term states rights has reared its head a number of times since the beginning of our country.

The first instance was after the passage of the Alien and Sedition Acts in 1798.  At that time we were in the middle of a quazi war with France.

The acts were actually a series of bills that were intended to address the issue of enemy aliens and also to address the issue of handling seditious acts that were interpreted to weaken the federal government by people who wrote articles that criticized the federal government.

Vice-President Thomas Jefferson strongly opposed these acts and even came out to state that he felt that they were unconstitutional.  They were a hotbed of debate during the elections of 1798 and 1800.  They were very unpopular and they are probably the main reason that John Adams was not re elected in 1800.

Jefferson and James Madison even went far enough to state in the Kentucky and Virginia Resolutions that these acts violated states rights.  “Resolved, that the several States composing the United States of America, are not united on the principle of unlimited submission to their general government; but that by compact under the style and title of a Constitution for the United States and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: That to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party….each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”

As lofty as these resolutions were, the government under the Supremacy Clause could write this type of law.

The laws were never declared unconstitutional because they were never brought in front of the Supreme Court.  If they had, I am sure that they would have been declared unconstitutional.

States rights came up again during the War of 1812.  The British naval blockade was severely damaging the shipping interests in New England and at the Hartford Convention the New England states started discussing secession from the Union but nothing like that happened.

One continued problem that seemed to plague the Union from around 1820 through the Civil War was the issue of tariffs.

The north and the south had two very diverse types of economies.  The north was industrial and the south was agricultural.  They depended on imports from Europe or from industry in the north.  The south had very few established industries and was almost totally dependant on outside sources for industrial implements.

In 1828 Congress passed a series of protective tariffs to benefit trade in the north but hurt the south.

Throughout the south these were several protests to these tariffs.

On November 24, 1832, South Carolina passed an Ordinance of Nullification declaring the tariffs of 1828 and 1832 null and void within the boundaries of South Carolina.

This unconstitutional ordinance set up an immediate constitutional crisis.  On December 10, 1843, President Andrew Jackson sent a flotilla of ships and threatened to send ground troops to South Carolina to enforce the tariffs.  Faced with a military confrontation, South Carolina backed down.

The biggest dispute over states rights have to be over slavery and the Civil War.

Actually, states rights have been used by both pro slavery and anti slavery proponents.

The pro slavery faction believed that slaves were property and they and the state had the right to protect their property no matter where they were.  In other words, if they were in a free state their slave was still considered their property and they were entitled to recover and protect their property.

The anti slavery faction believed that their state rights were violated by The Fugitive Slave Act of 1850 and the Dred Scott Decision of 1857 which gave slave owners the right to cross state lines and enter a free state to attempt to recover runaway slaves.

Now if you are a supporter of states rights, which position do you take?  I guess that it all depends on which side of the issue you are on.

My assertion is this.  Look at the evidence.  States rights were claimed by both sides, north and south.  What is the underlying issue here?  The answer is simple.  It’s slavery.  Slavery was the primary issue of the Civil War.  States rights was merely a side issue.

Furthermore, the Constitution of The United State states implicitly that Federal law is the supreme law of the land.  States rights is a non issue and that term has been used since the Civil War era up until today to talk about the segregation of African Americans from the American way of life.

I contend that “states rights” is merely a euphemism for Apartheid, American version.  Anyone who claims states rights issues for the Civil War or any piece of social legislation is in my mind a racist.  If you hold to the states rights myth you are no better than George Wallace in my opinion!