The concept of states' rights presupposes a federal relationship among states. In the case of the United States, the constitutional principle of states' rights can be traced to the federal Union's creation by the states for limited purposes. As embodied in the Tenth Amendment to the Constitution, states' rights became one of the founding principles of the Jeffersonian Republican Party that dominated federal politics in the first quarter of the nineteenth century.
Throughout the imperial crisis of the 1760s and 1770s, the chief points on which the colonists insisted were the "rights of Englishmen" and the prerogatives of their colonial legislatures. The Sugar Act (1764), the Declaratory Act (1766), the dissolution of the New York assembly (1767), the Tea Act (1773), the Massachusetts Government Act (1774), the Boston Port Act (1774), the Administration of Justice Act (1774), and various other of the parliamentary initiatives to which the colonists objected so stoutly should be understood as having offended them primarily as they impinged upon the colonists' right of self-government. At first, this inherited right was said to extend to an exclusive right in the provincial assemblies to tax the colonists; Patrick Henry's Stamp Act Resolves of 1765 based this right on a cogent account of Virginia's colonial history, and the Stamp Act Congress of 1765, drawn from nine colonies, asserted this exclusive right in Pennsylvanian John Dickinson's resolutions.
In 1766 Parliament repealed the Stamp Act. Simultaneously, it adopted the Declaratory Act, in which it claimed authority to legislate for the colonists "in all cases whatsoever." Americans would remember that claim.
By the time the fighting started in 1775, radical colonists such as Thomas Jefferson were going further than Dickinson's resolutions. For Jefferson, in his pamphlet entitled A Summary View of the Rights of British America (1774), Parliament had no right to legislate for the colonists at all; the only legitimate constitutional tie between the colonies and the mother country was that they shared a common crown. When the Second Continental Congress declared in 1776 that the thirteen colonies were and of right ought to be free and independent states, it based its claim on a Lockean account of government that culminated in an assertion that King George III had effectively abdicated his role in regard to the thirteen colonies. Among George's supposed misdeeds was his failure to prevent the British Parliament from legislating for North America.
Besides coordinating American foreign and defense policy, the First and Second Continental Congresses had, by default, to establish the working federal relationship among the states. Each time Congress claimed authority, it met with opposition from those states that could expect to carry the most of the burden or, in some cases, to be negatively affected. Nowhere was this clearer than when it came to the states' western land claims.
Several states claimed extensive lands beyond the Proclamation Line of 1763. From its earliest days, Congress endeavored to provide rational national policies for the governance of those lands, but the states with western claims, particularly Virginia, rose to the defense of their parochial interests. In defending their claim to exclusive jurisdiction over their trans-Ohio River territories, Virginia members of Congress such as George Mason, James Madison, and James Monroe developed a sophisticated theory of states' rights and reserved powers that would later be resuscitated and reinvigorated by the Virginiacentered Jeffersonian Republican Party.
In 1777 Congress submitted the proposed Articles of Confederation to the states. After four years of debate, the Articles—America's first federal constitution—were ratified. Leading figures from all sections of the country recognized the inadequacy of the Articles, particularly when it came to the federal government's taxing power, but tiny Rhode Island stood in the way of their favorite proposal: an amendment to the Articles granting Congress power to levy a tariff.
a new constitution
In response, self-styled Federalists plotted to hold a continental convention to reinvigorate the federal government. Led by Alexander Hamilton and James Madison, and with the support of General George Washington, they finally succeeded in convening a group of delegates from twelve states at Philadelphia in May 1787.
The Federalists' purported goal was to formulate acceptable proposals for amending the Articles of Confederation to give the government adequate powers. In fact, however, their true goal was to substitute a new government for the old one. Seeing through Federalist pretensions, several notable American politicians, including New York's George Clinton, North Carolina's Willie Jones, and Virginia's Patrick Henry, refused to participate; Rhode Island rejected the invitation to send delegates altogether.
Why? Henry, James Monroe, and other Virginians believed that a stronger congress would be willing and able to sacrifice Virginia's rights for the majority's benefit. Henry's concern had been raised by Congress's 1786 attempt to trade American rights to navigate the Mississippi River for limited access to Spanish colonial ports in the Caribbean Sea. Both in the Philadelphia Convention and in the subsequent state ratification conventions, proponents of leaving the preponderant legislative authority in the states opposed the nationalist program of the Federalists. They did so largely out of concern for the primacy of the states in the federal system. At Philadelphia, that insistence resulted in the state legislatures' power to elect U.S. senators and in the defeat of James Madison's proposal that Congress have a veto over all state laws; in the ratification conventions, it shaped the debate in myriad ways.
Most important, concerns for state sovereignty elicited from Virginia governor Edmund Randolph, a Philadelphia Convention delegate and the leading Federalist orator in the Richmond ratification convention of 1788, repeated avowals that the new federal government would have only the powers it was "expressly delegated" by the Constitution. Fellow Federalist delegate George Nicholas, a lieutenant of Madison's, picked up on this formulation, and the two of them forcefully repeated that claim at the convention's end. Nicholas and Randolph were two of the five delegates chosen to draft Virginia's instrument of ratification, which reserved certain rights to the people. It was on this understanding that Virginia ratified, and Federalists in other states—notably South Carolina—made similar assurances.
Federalists had already proven untrustworthy: they had promised that the Philadelphia Convention would merely propose amendments to the Articles. Therefore, several ratification conventions proposed amendments akin to what became the Tenth Amendment, which says that any powers not delegated through the Constitution to the federal government are reserved to the states respectively or to the people. To remind federal officials of their intention to hold them to Randolph's pledge, the majority of the Virginia General Assembly in 1790 adopted a resolution written by Patrick Henry to the effect that Hamilton's bill for assumption of the state debts was unconstitutional because in adopting it, Congress exercised a power not "expressly" granted to Congress.
the early 1790s
The First Congress saw a heated discussion of the idea of taxing slave imports. Members of Congress from the Deep South insisted that the Constitution's denial to Congress of a power to prohibit slave imports before 1808 implicitly denied it the power to tax slave imports. Ultimately, South Carolina representative Aedanus Burke said that if a special tax were placed on slave imports, South Carolina would secede from the Union. Georgia delegates echoed this threat, and the proposal failed.
Through the 1790s, self-styled Republicans would repeatedly insist that the federal government, in exercising powers not "expressly" granted it by the Constitution, were violating the Tenth Amendment; that is, they would say that virtually every controversial measure of the federal government amounted to an impingement upon states' rights.
For example, James Madison's opposition in the House of Representatives to the 1791 bill granting a federal charter to a bank rested ultimately on the idea that the power to grant such charters had been reserved to the states. Secretary of State Thomas Jefferson, at the request of President Washington, made a virtually identical argument in the cabinet. Federalists consistently rejected this argument, as Washington ultimately did in signing the bank bill. So far as they were concerned, the federal government was a sovereign in the international system. Since it alone represented the American people abroad, it could tax and spend for all the purposes of government.
Republicans remained steadfast in their insistence that various federal measures violated the reservation of residual powers to the states throughout the 1790s. Thus, the Virginia politician John Taylor of Caroline insisted that the federal excise tax on carriages was unconstitutional because the power to levy it had not been expressly granted and because of its disproportionate sectional incidence (only two carriages were taxed in all of Connecticut, he asserted, but virtually every substantial planter in Tidewater Virginia had one); for rhetorical effect, Taylor added that if the federal government could overstep the bounds of its authority to tax a particular type of property held mainly in the South in this instance, that would be a dangerous precedent for taxing another type of property that was held mainly in the South. From the beginning, then, the Republican insistence on states' rights was tied to slavery, not only by U.S. senators and representatives from the Deep South but by leading Republicans in Jefferson's home state.
One result of this Republican campaign was the Eleventh Amendment, affixed to the federal charter in 1795. This amendment grew out of the unpopularity of the U.S. Supreme Court's decision in Chisholmv. Georgia (1793). The majority of the Court said in the decision that Georgia could be made a party defendant to a suit in federal court even without that state's consent. Legislatures from Massachusetts to Virginia protested, and the result was an amendment denying the federal courts authority to make a state a party to a suit against its will. Popular opinion seems to have been behind the amendment.
the alien and sedition acts
The climax of the Federalist-Republican debate of the 1790s came at the decade's end. In response to the Alien and Sedition Acts of 1798, the Republicandominated legislatures in Virginia and Kentucky promulgated the Virginia and Kentucky Resolutions of 1798. The federal government, according to these Republican resolutions, had been created by the states, had only the powers granted it by the states, and must, in the last resort, be kept by the states from depriving Americans of their rights. Virginia's version, secretly penned by Madison, said that the remedy to unconstitutional and dangerous federal legislation was state "interposition"; the first draft of Kentucky's, secretly written by Jefferson, called the proper remedy "nullification."
Alexander Hamilton believed that "Virginia" (meaning the Republican Party) meant to dismember the Union. Some leading Republicans, such as Taylor and the U.S. representative from Virginia, William Branch Giles, were contemplating precisely that in 1798. The Virginia General Assembly, meanwhile, took steps to invigorate Virginia's militia. Vice President Jefferson wrote to Taylor in June 1798 that the time for secession had not arrived yet. In the days before the election of 1800, he believed that what he called the "reign of witches" would be dispelled by the arrival of the tax bill associated with the Federalists' military buildup.
In the interim between 1798 and the election of 1800, things did not look very promising for the Republicans. Federalists achieved their largest congressional majority in the elections of 1798, and ten states responded to the Virginia and Kentucky Resolutions with staunch, in some cases resounding, disapproval. Several of them rejected the idea that it was a state's right to interpret the federal Constitution, saying that this authority lay in the federal courts. In 1799, Kentucky adopted a second set of Jeffersonpenned resolutions, this time saying it would be among the very last to secede because it loved the federal Union for the purposes for which it had been created. In Virginia, Madison left retirement to sponsor his Report of 1800 as a member of the House of Delegates. Along with asserting the unconstitutionality of virtually every controversial Federalist measure of the 1790s, the Report of 1800 also clarified what the Republicans meant when they said the states had created the federal government: a "state," in this context, was the sovereign people of a particular state. The government of a state was not sovereign, the people were.
Once Jefferson assumed the presidency in 1801, he changed his tune. The Revolution of 1800, as he came to call it, had proven not that Americans hated taxes, but that they approved of the Virginia and Kentucky Resolutions of 1798. States' rights would be the Jeffersonian gospel ever after.
Jeffersonians gleefully pushed their platform of limited federal government and low taxes through Congress in 1801. That platform circumscribed their options in foreign policy markedly, leading to the military fiasco that was the War of 1812. Hit harder than the rest of the country by the war's economic repercussions, Federalist governors of some New England states exercised their states' right to refuse to send militiamen to fight beyond their states' boundaries. In 1814, as the war went badly, New England Federalists staged a regional convention to consider their options. Although some of the instigators of the Hartford Convention of 1814 favored New England independence, most did not. Still, Republicans succeeded in branding the conventioneers as disloyal, and the coincidence of the war's end with the convention's end spelled doom for the Federalist Party as a national force.
Still, by the war's end in 1815, even President Madison found himself constrained to concede that the Principles of '98 had seemed far more practical in theory than they had proven in practice. In 1816, he asked Congress to charter the second Bank of the United States. State-level Republicans in several states disapproved, and they enacted legislation intended to impede operation of bank branches within their bounds. One state, Maryland, imprisoned the chief operating officer of its bank branch, and he appealed the case to the Supreme Court.
McCulloch v. Maryland (1819) was the result. In his opinion for a unanimous Supreme Court, Chief Justice John Marshall wrote a Hamiltonian reading of the Constitution into constitutional law, where it remains enshrined. Rejecting the argument that Jefferson and Madison had made against the constitutionality of the first bank in 1791 and that had been repeated by framer Luther Martin before the Court, Marshall held that the Constitution granted Congress very broad authority to legislate for the common good. Maryland, the Court ruled, had no right to interfere with the bank's operations.
President Madison left office in 1817 with a ringing states' rights veto message as his last official act. Leaders in Congress intended for the federal government's share of bank profits to be used in construction of various public works. Madison responded that he found no mention in the Constitution of a congressional power to fund construction of roads, bridges, canals, and other internal improvements, so the advocates of these improvements must first secure a constitutional amendment. Observers noted that Madison's position in his Bonus Bill Veto Message of 1817 clashed with his signature on the 1816 bill chartering the bank.
Virginia's dominant Republicans had other opportunities to joust with John Marshall's Supreme Court, including Martin v. Hunter's Lessee (1816). In that complicated litigation, the Supreme Court issued a writ ordering Virginia's highest court to send a certified copy of the record in the case so the Supreme Court could consider an appeal. Spencer Roane, a states' rights–minded Jeffersonian on the Virginia Court of Appeals, took the bait: he wrote that the Supreme Court had no authority to order the Virginia Court of Appeals to do anything. Virginia's court system and the federal court system were coordinate systems, he said, and each must conduct its business without the interference—much less oversight—of the other. In his opinion for the Supreme Court, which still stands as the keystone of American judicial federalism, Justice Joseph Story said that all matters of federal law ultimately could be appealed to the Supreme Court. Both Martin and McCulloch provoked furious responses from leading Jeffersonians in speeches, in books, and in newspapers (and, in Jefferson's case, in private correspondence), but these had no notable effect on the Marshall Court. Jefferson lamented that the Court seemed to be undoing the Republicans' repeated victories at the polls. Roane, for his part, never certified the record in Martin for Supreme Court review.
The Missouri crisis. In 1819 citizens in the Missouri Territory submitted their draft constitution to Congress with an application for statehood. A Republican representative from New York, James Tallmadge, touched off the Missouri crisis by responding that while Missouri should be admitted to the Union as a state, it must do so with a constitution banning slavery from its territory. In the main, northerners—whose states had either eliminated or virtually eliminated slavery—agreed, while southerners held that slavery must be allowed in Missouri if its citizens wanted it. Jefferson, in retirement, said that the issue was states' rights, specifically the right of the state of Missouri to make for itself a decision—whether to allow slavery within its territory—that every other state had made for itself. (Jefferson was wrong about that, as he should have realized, for the Northwest Ordinance had decided the issue without giving any say to citizens in the states carved out of the Northwest Territory.) The Missouri Compromise respected Jefferson's principle in regard to Missouri, but rejected the idea of allowing citizens of future states carved out of the Louisiana Territory north of Missouri's southern border to decide that issue for themselves. President James Monroe, with the concurrence of War Secretary John C. Calhoun, accepted the Missouri Compromise as a suitable solution to a very difficult problem, despite its arguably anti-southern and anti–states' rights elements.
Divided Republicans. By the time Monroe left office in 1825, the blurring of the Republican Party's old principles had become so marked that John Quincy Adams, his generation's leader of what a Republican member of Congress once dubbed "the American House of Stuart," succeeded him as Republican president. In his Inaugural and his First Annual Address, Adams called for an expansive federal spending program. He also tried to send a diplomatic delegation to a conference that would feature representatives from the Republic of Haiti, recently established by history's only successful slave rebellion. Opposition to President Adams swelled among those who remained devoted to the old Jeffersonian nostrums of states' rights and strict construction. Soon enough, the Republican opposition to this Republican president would give birth to a new party, the Jacksonian Democratic Party, with the same constitutional emphases. While states' rights might sometimes be ignored by those who trumpeted them most loudly, the idea that the states came first and that the federal government had limited power retained great influence upon the American imagination at the end of the early Republic.
See alsoAdams, John Quincy; Alien and Sedition Acts; Anti-Federalists; Bank of the United States; Chisholm v. Georgia; Constitution, Ratification of; Constitution: Eleventh Amendment; Constitutional Convention; Hartford Convention; Internal Improvements; Jefferson, Thomas; Madison, James; Martin v. Hunter's Lessee;McCullough v. Maryland; Missouri Compromise .
Berger, Raoul. Federalism: The Founders' Design. Norman: University of Oklahoma Press, 1987.
Carpenter, Jesse T. The South as a Conscious Minority, 1789–1861. 2nd ed. Columbia: University of South Carolina Press, 1990.
Ellis, Richard E. The Union at Risk: Jacksonian Democracy, States' Rights, and the Nullification Crisis. New York: Oxford University Press, 1987.
Gutzman, Kevin R. C. "Edmund Randolph and Virginia Constitutionalism." The Review of Politics 66 (2004): 469–497.
——. "The Virginia and Kentucky Resolutions Reconsidered: 'An Appeal to the Real Laws of Our Country.'" Journal of Southern History 66 (2000): 473–496.
Hamilton, Alexander, James Madison, and John Jay. The Federalist. Edited by Jacob E. Cooke. Middletown, Conn.: Wesleyan University Press, 1961.
Jensen, Merrill, ed. The Documentary History of the Ratification of the Constitution. 19 vols. Madison: State Historical Society of Wisconsin, 1976–2003.
Ketcham, Ralph. James Madison. Charlottesville: University Press of Virginia, 1990.
Lenner, Andrew C. The Federal Principle in American Politics, 1790–1833. Madison, Wis.: Madison House Publishers, 2000.
McDonald, Forrest. States' Rights and the Union: Imperium in Imperio, 1776–1876. Lawrence: University Press of Kansas, 2000.
Rutland, Robert Allen. The Ordeal of the Constitution: The Antifederalists and the Ratification Struggle of 1787–1788. Boston: Northeastern University Press, 1983.
States' Rights (Issue)
STATES' RIGHTS (ISSUE)
Because of its fundamental relationship to the political and constitutional foundations of the United States, the issue of states' rights has been an enduring problem throughout the history of the United States. At its core, the matter raised questions of sovereignty and authority, and often overlapped other questions, like whether the country should have a centralized or decentralized government. Moreover, it had strong implications for the American economy, especially regarding trade, tariffs, banking, and labor, among others.
In the early eighteenth century the thirteen colonies of British North America had more in common with the Crown, especially economically, than they did with each other. But as that relationship slipped into acrimony—especially during the American Revolution (1775–1783)—the fight against a common foe, the forces of independence, the communication between the respective social classes in the different regions of the country and the evolution to statehood forged a greater sense of unity among the former thirteen colonies. Under the Articles of Confederation (adopted in 1777) the states retained political autonomy. The Confederation Congress had little authority and was unable to exert any effective control over the economic activity of individual states as well as the states' relations with foreign countries and with each other. The national government could not levy taxes, issue money, or enforce a uniform tariff on imports and exports. Congress could only ask the states for funds with which to fight the war and carry out the work of government.
When the framers of the Constitution assembled in the spring of 1787, they were faced with the sobering evidence of what independence had wrought. The machinery of government was clearly too cumbersome for the tasks that it had to accomplish. Yet they also remained dedicated to their revolutionary ideal of more liberty and less government. In the end, the Constitution that they produced reflected both realities. In the Tenth Amendment, the framers granted to the states a kind of states' bill of rights which specified that ". . . powers not delegated to the United States by the Constitution; nor prohibited by it to the States, are reserved to the States respectively. . . ." The Constitution did give the federal government the powers to tax, borrow, and coin money, regulate foreign and interstate commerce, establish a postal service, and issue patents and copyrights, but it also imposed constraints on the government's ability to regulate trade. The federal government could not impose duties on exports, could not discriminate against the ports of any state in its commercial regulations, could not restrict a carrier's freedom to enter or leave a state without stopping in another, and finally, could not extend any trade barriers between the states themselves.
When the First Bank of the United States (1791–1811) was chartered, the issue of states' rights was again raised. According to its charter, the First Bank was allowed to operate in all states, which gave it a considerable edge over state banks that could only operate in the states that chartered them. The First Bank maintained a large banking network in various parts of the country and it was also able to hold more notes than state banks. Proponents of states rights and advocates of free commerce, therefore, were instrumental in defeating legislation to re-charter the First Bank in 1812. They feared that it posed obstacles to the growth of state banks. This controversy continued when, years later, many critics blamed the Second Bank of the United States (1816–1836) for the panic (the word that was used for depression) of 1819. Maryland, Tennessee, Georgia, North Carolina, Kentucky and Ohio enacted laws to tax branches of the Second Bank out of existence. However, the Supreme Court handed down decisions in McCulloch v. Maryland (1819) and Osborne v. United States Bank (1824) which declared unconstitutional any state law that restricted the activities of the Second Bank of the United States.
During the 1820s and early 1830s, during heated Congressional debate over tariffs, the issue of states' rights again came to the fore. Southern states complained that the North was benefiting from tariffs at the expense of the South. Then Vice President John C. Calhoun (1782–1850), himself a southerner, put forth a states' rights constitutional doctrine called "Nullification". In what came to be known as the "nullification crisis" the legislature of South Carolina declared that the tariffs of 1828 and 1832 were "unauthorized by the Constitution" and therefore "null, void . . . [and] . . .not binding upon this State, its officers or citizens." The passage of that declaration of nullification, in the view of Calhoun and the legislature of South Carolina, automatically made the disputed law unconstitutional. Then the U.S. Congress was obliged to pass an amendment to the Constitution explicitly affirming the constitutionality of the law. At that point, the state had the option of either abiding by the law or else peacefully seceding from the Union.
Such a doctrine would have severely limited the central power of the federal government. Although the president at the time, Andrew Jackson, was on some issues friendly to states' rights, he was enraged over this challenge to the sovereignty of the national government. He threatened to have Vice President Calhoun hanged, he mobilized the U.S. Navy, and had the U.S. Congress pass a "force bill" to ensure the effective implementation of the disputed tariff laws.
The nullification crisis was only a part of the cause for Southern economic and political discontent. The episode represented growing sectional differences between North and South. Tariffs, which tended to favor manufactured goods over raw goods, reaffirmed the agrarian South's subordinate relationship to the North. After the Panic of 1837, Southern cotton went into a sustained decline while industrial commerce in the North continued to prosper. Moreover, because western expansion in the United States afforded Northeastern business interests other sources for raw goods, manufacturers became less dependent on the South as a supplier of raw materials.
Southerners believed that they were victims of a sinister conspiracy supported by Northern bankers, merchants, manufacturers, and their political agents. Southerners accused them of rigging prices, of manipulating the money market, and of causing much of the wealth of the South to flow steadily into the hands of the northern economic elite. On top of this, the South resented the Abolitionist Movement against slavery. In reaction to the anti-slavery movement, Southerners began to extol the differences between their agrarian economy and that of the industrialized North. Southerners characterized the institution of slavery as essential to their economy and their way of life. Slavery was a necessary labor regime, they argued, and the slaves themselves were almost like family members. Accordingly, they rooted their economic arguments in agrarian values and paternalistic notions of family and grounded their political voices in the rights of each individual state.
When the Southern vote against then-Presidential candidate Abraham Lincoln (1861–65) proved futile in the election of 1860, most South Atlantic states turned to what they believed was their only legal recourse— the right to secede from the Union. Secession was most popular in the deep South wherever the plantation system and slavery were well established. While many people in the upper South felt strong ties to the Union, they had a strong affinity for vested southern values, the southern agrarian economy, and the institution of slavery. Coupled with a strong belief in the rights of the states which dated back to Thomas Jefferson and James Madison, the issue of states' rights was never so strongly articulated as when the southern states exercised what they believe was a Constitutional right to secede. The outcome of that action, the Civil War and Reconstruction, resulted in settling the questions of precedence—the rights of states or the superior authority of a republican form of government.
See also: Bank of the United States (First National), Bank of the United States (Second National), Civil War (Economic Causes of)
Baack, Bennett, and Ray, Edward. "The Political Economy of Tariff Policy: A Case Study of the United States." Explorations in Economic History, 30, 1983.
Craven, Avery O. The Growth of Southern Nationalism. Baton Rouge: Louisiana State University Press, 1953.
Nettels, Curtis P. The Emergence of A National Economy, 1775–1815. New York: Holt, Rhinehart and Winston, 1962.
Timberlake, Richard H., Jr. The Origins of Central Banking in the United States. Cambridge: Harvard University Press, 1978.
A doctrine and strategy in which the rights of the individual states are protected by the U.S. Constitution from interference by the federal government.
The history of the United States has been marked by conflict over the proper allocation of power between the states and the federal government. The federal system of government established by the U.S. Constitution recognized the sovereignty of both the state governments and the federal government by giving them mutually exclusive powers as well as concurrent powers. In the first half of the nineteenth century, arguments over states' rights arose in the context of slavery. From the 1870s to the 1930s, economic issues shaped the debate. In the 1950s racial segregation and the civil rights movement renewed the issue of state power. By the 1970s economic and political conservatives had begun to call for a reduction in the power and control of the federal government and for the redistribution of responsibilities to the states.
At the Constitutional Convention in 1787, delegates represented state governments that had become autonomous centers of power. The Constitution avoided a precise definition of the locus of sovereignty, leaving people to infer that the new charter created a divided structure in which powers were allocated between the central government and the states in such a way that each would be supreme in certain areas.
Nevertheless, defenders of states' rights were concerned that a powerful, consolidated national government would run roughshod over the states. With ratification of the Constitution in doubt, the Framers promised to add protection for the states. Accordingly, the tenth amendment was added to the Constitution as part of the bill of rights. The amendment stipulates that "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 amendment became the constitutional foundation for those who wish to promote the rights and powers of the states vis-à-vis the federal government.
In the early years of the Republic, states' rights were vigorously protected. An early argument involved whether or not states were subject to the jurisdiction of the Supreme Court and the federal government. In chisholm v. georgia, 2 U.S. (2 Dall.) 419, 1 L. Ed. 440 (1793), a South Carolina businessman sued the state of Georgia in order to collect for payment of supplies. The state of Georgia maintained that it was a sovereign body, and so could not be sued since it was not subject to the authority of federal courts. The Supreme Court dismissed this argument and ruled that the conduct of the states was subject to judicial review. In response, states' rights advocates pushed for passage of the eleventh amendment, which limits the rights of persons to sue a state in federal court.
In 1798, thomas jefferson and james madison proposed the virginia and kentucky resolves to clarify the role of states in checking the powers of the federal government. The resolutions were in response to passage of the alien enemies and sedition acts of 1798 (1 Stat. 570, 1 Stat. 596), which restricted a number of personal liberties. In proposing the Virginia and Kentucky Resolves of 1798, Jefferson argued that the "sovereign and independent states" had the right to "interpose" themselves between their citizens and improper national legislative actions and to "nullify" acts of Congress they deemed unconstitutional. The resolutions started the seed of the doctrines of nullification and interposition, later employed by New England states during the war of 1812, and by South Carolina in opposing federal tariff legislation in 1832.
From the early 1800s until the end of the Civil War in 1865, states' rights played a major role in the U.S. political process. The doctrine was most fully articulated in the writings of South Carolina statesman and political theorist john c. calhoun. Calhoun contended that if acts of the federal government ran contrary to state or local interests, then states had the right to nullify said acts. Calhoun further proposed that states had the right to dissolve their contractual relationship with the federal government rather than submit to policies they saw as destructive to their local self-interests. Followers of Calhoun linked states' rights to slavery, and thus, protecting slavery became the equivalent of protecting regional Southern interests. In 1860, seven Southern states seceded from the Union to form the Confederate States of America. The constitution of the Confederacy began, "We, the people of the Confederate States, each State acting in its own sovereign and independent character …."
Northern leaders were also prepared to manipulate the concept of states' rights. As early as the 1820s, Northern legislatures enacted personal liberty laws as devices to block the enforcement of the federal fugitive slave law. Such laws were struck down by the Supreme Court in prigg v. pennsylvania, 41 U.S. (16 Pet.) 539, 10 L. Ed. 1060 (1842). However, when Congress enacted the more stringent fugitive slave act of 1850, Northerners responded by again creating personal liberty laws in general defiance of federal fugitive slave policy.
The defeat of the South in the Civil War ended the dispute, and Congress enacted the Fourteenth and Fifteenth Amendments, in part, to prevent states from denying certain basic rights to U.S. citizens. Although the Supreme Court substantially restricted the power of these amendments during the late nineteenth century, it did so indirectly, relying on states' rights arguments to justify its actions. The judicial philosophy of the times was also marked by laissez-faire capitalism. Thus, the Court would invoke the Tenth Amendment to strike down federal laws that were characterized as hostile to state interests and then use the fourteenth amendment to strike down state legislation that sought to regulate business, labor, and the economy.
This trend continued into the twentieth century. Until the 1930s, the Court frequently used the Tenth Amendment as a device for striking down federal measures, from child labor laws to major pieces of President franklin d. roosevelt's new deal legislation. Hundreds of state regulatory statutes were also overturned. Only when the states sought to restrict unions or control dissenters did the Court sustain these efforts.
By the late 1930s, however, New Deal policies had dramatically increased the size and power of the federal government. Proponents of states' rights argued against extensive use of the commerce clause, which gave the federal government the power to regulate interstate commerce, and the federal government's power to tax for the general welfare. Given the desperate economic situation, such arguments fell on deaf ears. By the end of world war ii, centralized authority rested with the federal government.
States' rights were revived in the late 1940s over the matter of race. In the 1948 election, Democrat harry s. truman pushed for a more aggressive civil rights policy. Southern opponents, known as the "Dixiecrats," bolted the democratic party and ran their own candidate, J. strom thurmond. Their "states' rights" platform called for continued racial segregation and denounced proposals for national action on behalf of civil rights.
Desegregation efforts of the 1950s and 1960s, including the Supreme Court's decision in brown v. board of education of topeka, kansas, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), which ruled that racially segregated public schools were unconstitutional, also met with Southern resistance. Segregationists again argued for state sovereignty, and developed programs of massive resistance to racial integration in public education, public facilities, housing, and access to jobs.
Beginning in the 1960s, other states' rights proponents started stressing the need for local control of government. One reason was the introduction of federal welfare and subsidy programs. The concern was that along with federal money would come federal control.
By the end of the twentieth century, a number of efforts were being made to curtail the broad power of the federal government. For example, in National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465, 49 L. Ed. 2d 245 (1976), the U.S. Supreme Court ruled that Congress had exceeded its power to regulate interstate commerce when it extended federal minimum wage and overtime standards to state and local governments. Determination of state government employees' wages and hours is one of the "attributes of sovereignty attaching to every state government," attributes that "may not be impaired by Congress." Less than ten years later, however, the Court overruled National League in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S. Ct. 1005, 83 L. Ed. 2d 1016 (1985). Nevertheless, the 5–4 majority in Garcia and the Court's difficulty in articulating a coherent Tenth Amendment jurisprudence have left this area of states' rights muddled.
The 1980s saw a major shift in government policy. President ronald reagan agreed with the public that the federal government was becoming too involved in state government affairs. As a result, a major focus of his administration was to reduce the size and power of the federal government. States were given more authority to experiment with policy initiatives, especially social programs, which had previously been directed from Washington. Subsequent administrations followed suit. In the early 2000s, however, political analysts commented that a new trend was afoot: both Republicans and Democrats were pushing for federal laws that would preempt state laws, especially state laws that attempted to regulate financial corporations and other types of business.
Drake, Frederick D., and Lynn R. Nelson. 1999. States' Rights and American Federalism: A Documentary History. Westport, Conn.: Greenwood Press.
Knowles, Robert. 2003. "The Balance of Forces and the Empire of Liberty: States' Rights and the Louisiana Purchase." Iowa Law Review 88 (January).
Mason, Alpheus Thomas. 1972. The States Rights Debate: Antifederalism and the Constitution. 2d ed. New York: Oxford Univ. Press.
McDonald, Forrest. 2000. States' Rights and the Union: Imperium in Imperio, 1776–1876. Lawrence: Univ. Press of Kansas.
Richey, Warren. 2002. "Terror Could Tilt High Court on States' Rights." Christian Science Monitor (February 11).
Sample, James J. 2003. "The Sentences that Bind." Columbia Law Review 103 (May).
"States' rights" is better understood not as a term of art denoting a constitutional principle but as a slogan with tactical value in political controversy. The slogan of states' rights has been raised at one time or another by advocates from every region of the country and by partisans of every political persuasion. The phrase emphasizes one element of federalism, but it is a serious error to equate federalism with states' rights.
Although the states' rights are often asserted in terms of state sovereignty, the claim of states' rights is really a claim on behalf of the sovereignty of the people. No government, national or state, properly exercises any power that has not been delegated to it by the people. The assertion of states' rights is most often made by those who oppose a policy of the national government and who claim that the people have not delegated to the national government the power to implement the policy. Less often the assertion is made by those who believe that the states, or at least their own states, are more likely than the federal government to implement a desired policy.
The idea of states' rights is as old as the Republic. The jealousy with which the colonial legislatures guarded their limited local powers against the British Parliament and the royal government was carried over into anti-federalist constitutional thought. To the extent that the argument for states' rights is one of principle, it is based on the classical notion that public virtue flourishes only in relatively small political communities. The French political philosopher Montesquieu, whom james madison called the "oracle" for American constitutionalists of the Founding era, restated the classical view in modern terms and maintained that the best practical regime was a small republic confederated for military and commercial purposes with similar small republics. Many Anti-Federalists opposed the Constitution from a genuine fear of consolidation into a continental empire that only a despot could govern effectively.
But there was also a practical factor in the Anti-Federalist opposition. In the years between 1776 and 1789, the state governments had assumed responsibility for their internal affairs to a far greater degree than the colonial governments had ever done. Individual leaders, parties, cliques, and factions had arisen and assumed their places in state politics; creation of a national political environment was bound to reduce the power of most of them. Familiar ways of dealing with problems would be replaced with strange ones.
After the ratification of the constitution, the erstwhile opponents of the new frame of government, along with some of its defenders, sought to interpret it in Anti-Federalist, or Montesquian, terms. The Constitution, according to this interpretation, was a compact between the people of each state and the people of the other states. When the Federalist-dominated national government adopted the alien and sedition acts (1798), "states' rights" became the battle cry of the Republican party, whose leaders, james madison and thomas jefferson, gave the slogan substantive expression in the virginia and kentucky resolutions (1799).
In the nineteenth century the growing sectional rivalry between the commercial, and increasingly industrial, North and the agrarian South was reflected in competing theories of the union. The states' rights position came to be identified in public discourse with the interest of the slave power. It found its champion in john c. calhoun, who, in the South Carolina exposition and protest (1828–1829), announced the doctrine of nullification as a logical consequence of the state compact theory. Nullification, of course, was an empty threat unless it was backed up by the possibility of secession.
One attempt was made to implement Calhoun's doctrine, the south carolina ordinance of nullification directed against the tariff act of 1828, and that was a failure. In 1861, when the election of abraham lincoln as President clearly signaled that slavery had been belatedly set upon its course of ultimate extinction, eleven southern states withdrew from the Union. Lincoln denied not only the legitimacy but also the very possibility of secession, and the victory of the Union in the civil war vindicated his position for all practical purposes. Whatever rights the states have they have as members of the Union.
The fourteenth amendment, adopted after the Civil War, proved an obstacle to state regulation of economic activity begun under the influence of the Populist and Progressive movements. Because the bill of rights applied only to the federal government, individuals whose rights were infringed by actions of the state governments (unless they were the victims of bills of attainder, ex post facto laws, or laws impairing the obligation of contracts) previously had been able to rely only on the state constitution, political system, or courts for redress. In the late nineteenth and early twentieth centuries, however, the Supreme Court held the substantive guarantees (life, liberty, and property) of the Fourteenth Amendment's due process clause to be effective limitations on state legislative power. In the rhetoric of the reformers, the federal government (or at least its judicial branch) had infringed on the states' right to regulate their internal affairs.
In the 1920s the cry of "states' rights" was raised both by those who opposed federal intrusions into areas of state legislative concern and by those states that were frustrated in the attempt to expand state regulatory power. It is instructive that states' rights claims were raised in both massachusetts v. mellon (1923) and pierce v. society of sisters (1925), the first in the interest of less and the second in the interest of more governmental regulation.
Between the late 1940s and the late 1960s, the cause of states' rights became virtually identified with the cause of southern opposition to civil rights legislation. The national commitment to abolishing racial segregation, first in publicly owned facilities and then in private establishments dealing with the public, aroused fierce opposition among those who were destined to lose their privileged position. Despite its long history of service to every shade of political opinion, the slogan of "states' rights" may have been permanently tarnished by its association with state-sponsored racial discrimination.
If the states, as states, have a valid claim of right to any particular field of legislation, that field would seem to be legislation concerning the internal workings of the governmental apparatus of the state. In the twentieth century the federal government undertook to regulate the compensation and working conditions of state employees, incidentally to its regulation of compensation and working conditions of private employees under the commerce clause. In national league of cities v. usery (1976) the Supreme Court struck down such regulation insofar as the employees concerned were involved in the essential governmental operations of the states. The distinction was undermined in equal employment opportunity commission v. wyoming (1983), and discarded as unworkable in garcia v. san antonio metropolitan transit authority (1985). In Garcia a 5–4 Supreme Court explicitly overruled Usery, and—unless the dissenters were accurate in predicting that the Usery doctrine would one day be revived—effectively put an end to the last vestige of states' rights in constitutional law.
Dennis J. Mahoney
(see also: Tenth Amendment.)
Elazar, Daniel J. 1972 American Federalism: A View from the States, 2nd ed. New York: Thomas Y. Crowell Co.
Grodzins, Morton 1966 The American System: A New View of Government in the United States, ed. Daniel J. Elazar. Chicago: Rand-McNally.
Sanford, Terry 1967 Storm over the States. New York: Mc-Graw-Hill.
Vile, M.J.C. 1961 The Structure of American Federalism. Oxford: Oxford University Press.
STATES' RIGHTS advocates believe that considerable governmental authority should be located in the separate and collective states of the United States. The concept of states' rights arose as an extension of colonial rights, which Americans had claimed when they were still under the British Crown. This idea was essential to the American Revolution and under the Articles of Confederation. When the Federal Constitutional Convention met in 1787, states' rights proponents pressed to include their ideas in the Constitution; others advocated a strong national government, with minimal power residing with the states. The federal system adopted at that convention was a reasonably satisfactory compromise that reconciled state and national power. It included an upper house, the Senate, which provided each state with equal input into the legislative process. In 1791, the Tenth Amendment to the Constitution made the states' rights doctrine more explicit: "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." From that time until 1865 the tension between national and state governments as they attempted to define their relationships to each other and to protect their respective powers constituted a major theme in American history. In 1798, the promulgation of the Kentucky and Virginia resolutions, which protested acts passed by the national Congress, were manifestations of states' rights. The Hartford Convention of 1814, called by New Englanders who disagreed with President James Madison's wartime policies, was another example of states' rightism.
Although various individual states and groups of states from time to time appealed to the principle of states' rights for their political and economic protection, the South is most often associated with the doctrine. In the first half of the nineteenth century, when disputes arose over the tariff, the national bank, public land policies, internal improvement, and the like, southern leaders used arguments based on states' rights in their attempts to protect their economic interests. They usually lost these battles to maintain their economic power, and their appeals to constitutional principle went unheeded. Overriding all the other disputes was the question of the extension of slavery into the American territories. Southern states fell back on the states' rights principle once again when northerners argued that slavery should not extend into new states. Various events of the 1850s, including the Compromise of 1850, the Kansas-Nebraska controversy, the formation of the Republican Party, civil strife in Kansas, the Dred Scott decision and John Brown's raid, and the election of Abraham Lincoln as president in 1860, were closely related to the slavery and states' rights controversies and led directly to the Civil War. That war established the supremacy of the national government and relegated the states to lesser political and economic positions. Disputes arose from time to time about the relationship of the national and state governments, and invariably the national government emerged the victor. In the first half of the twentieth century, southern politicians continued to speak about states' rights, but this was often nothing more than oratory designed to please southern voters.
After midcentury, when the power, size, and authority of the national government became greater and more complex, many Americans began to have misgivings about the shortcomings of a massive government essentially run by bureaucrats. Those politicians who talked about states' rights often found they had more receptive audiences than previously. Controversies over the administration of welfare programs and other social services gave states' rights advocates issues that they could exploit. More important, the cry for states' rights was often a thinly disguised but firm stand against racial integration in regard to education, public accommodations, politics and voting, housing, and jobs—areas that states' righters insisted were within the sphere of the states. When Senator Strom Thurmond, at that time a Democrat opposed to President Harry S. Truman's civil rights legislation, ran as a candidate for president in 1948, his States' Rights Party carried four states and received thirty-nine electoral votes, the third-largest electoral vote for an independent party in U.S. history. But the revival of states' rights arguments in the third quarter of the twentieth century had little basic impact on the general locus of political power. The national government continued to be more powerful, and the states remained in secondary roles. The attempts of the founders of the United States to divide sovereignty between national and state governments laid the basis for many controversies throughout the nation's history, but on the whole the structures of government that they established functioned well. Except for the Civil War, disputes were settled peacefully. Even as the national government gained more power within the limits of the Constitution after the mid-twentieth century, there appeared to be no prospect of a serious revolt over the diminishing rights of the states.
Dew, Charles B. Apostles of Disunion: Southern Secession Commissioners and the Causes of the Civil War. Charlottesville and London: University Press of Virginia, 2001.
states' rights • pl. n. the rights and powers held by individual U.S. states rather than by the federal government.