19th Century Quotes on Federalism and States' Rights

"From this view of the powers delegated to the federal government, it will clearly appear, that those exclusively granted to it have no relation to the domestic economy of the state. The right of property, with all it's train of incidents, except in the case of authors, and inventors, seems to have been left exclusively to the state regulations..."

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Library Topic: Constitutional Limits

"The State governments are divided into three branches--a legislative, executive, and judiciary--and the appropriate duties of each assigned to it without any limitation of power except such as is necessary to guard against abuse, in the form of bills of right. But in instituting the National Government an entirely different principle was adopted and pursued. The Government itself is organized, like the State governments, into three branches, but its powers are enumerated and defined in the most precise form."

Library Topic
Library Topic: Constitutional Limits

"This amendment is a mere affirmation of what, upon any just reasoning, is a necessary rule of interpreting the constitution. Being an instrument of limited and enumerated powers, it follows irresistibly, that what is not conferred, is withheld, and belongs to the state authorities, if invested by their constitutions of government respectively in them; and if not so invested, it is retained by the people, as a part of their residuary sovereignty."

Library Topic
Library Topic: Constitutional Limits

"When this amendment was before congress, a proposition was moved, to insert the word 'expressly' before 'delegated,' so as to read 'the powers not expressly delegated to the United States by the constitution,' etc. On that occasion it was remarked, that it is impossible to confine a government to the exercise of express powers. There must necessarily be admitted powers by implication, unless the constitution descended to the most minute details. It is a general principle, that all corporate bodies possess all powers incident to a corporate capacity, without being absolutely expressed. The motion was accordingly negatived. Indeed, one of the great defects of the confederation was, (as we have already seen,) that it contained a clause, prohibiting the exercise of any power, jurisdiction, or right, not expressly delegated. The consequence was, that congress were crippled at every step of their progress; and were often compelled by the very necessities of the times to usurp powers, which they did not constitutionally possess; and thus, in effect, to break down all the great barriers against tyranny and oppression."

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Library Topic: Constitutional Limits

"The obligations and the claims of the Federal government were simple and easily definable because the Union had been formed with the express purpose of meeting certain great general wants; but the claims and obligations of the individual states, on the other hand, were complicated and various because their government had penetrated into all the details of social life. The attributes of the Federal government were therefore carefully defined, and all that was not included among them was declared to remain to the governments of the several states. Thus the government of the states remained the rule, and that of the confederation was the exception."

Alexis de Tocqueville
1835/1840
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Library Topic: Constitutional Limits

"It is but a small portion of the public business of a country which can be well done, or safely attempted, by the central authorities; and even in our own government, the least centralised in Europe, the legislative portion at least of the governing body busies itself far too much with local affairs, employing the supreme power of the State in cutting small knots which there ought to be other and better means of untying. The enormous amount of private business which takes up the time of Parliament, and the thoughts of its individual members, distracting them from the proper occupations of the great council of the nation, is felt by all thinkers and observers as a serious evil, and what is worse, an increasing one."

John Stuart Mill
1861
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"The authority which is most conversant with principles should be supreme over principles, while that which is most competent in details should have the details left to it. The principal business of the central authority should be to give instruction, of the local authority to apply it. Power may be localised, but knowledge, to be most useful, must be centralised; there must be somewhere a focus at which all its scattered rays are collected, that the broken and coloured lights which exist elsewhere may find there what is necessary to complete and purify them. To every branch of local administration which affects the general interest there should be a corresponding central organ, either a minister, or some specially appointed functionary under him; even if that functionary does no more than collect information from all quarters, and bring the experience acquired in one locality to the knowledge of another where it is wanted. But there is also something more than this for the central authority to do. It ought to keep open a perpetual communication with the localities: informing itself by their experience, and them by its own; giving advice freely when asked, volunteering it when seen to be required; compelling publicity and recordation of proceedings, and enforcing obedience to every general law which the legislature has laid down on the subject of local management. ...

Some may think that however much the central authority surpasses the local in knowledge of the principles of administration, the great object which has been so much insisted on, the social and political education of the citizens, requires that they should be left to manage these matters by their own, however imperfect, lights. To this it might be answered, that the education of the citizens is not the only thing to be considered; government and administration do not exist for that alone, great as its importance is. But the objection shows a very imperfect understanding of the function of popular institutions as a means of political instruction. It is but a poor education that associates ignorance with ignorance, and leaves them, if they care for knowledge, to grope their way to it without help, and to do without it if they do not. What is wanted is, the means of making ignorance aware of itself, and able to profit by knowledge; accustoming minds which know only routine to act upon, and feel the value of principles: teaching them to compare different modes of action, and learn, by the use of their reason, to distinguish the best. When we desire to have a good school, we do not eliminate the teacher. The old remark, 'as the schoolmaster is, so will be the school,' is as true of the indirect schooling of grown people by public business as of the schooling of youth in academies and colleges. A government which attempts to do everything is aptly compared by M. Charles de Remusat to a schoolmaster who does all the pupils' tasks for them; he may be very popular with the pupils, but he will teach them little. A government, on the other hand, which neither does anything itself that can possibly be done by any one else, nor shows any one else how to do anything, is like a school in which there is no schoolmaster, but only pupil teachers who have never themselves been taught."

John Stuart Mill
1861
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"It might seem, at first thought, to be of little difference whether the present movement at the South be called 'secession' or 'rebellion.' The movers, however, well understand the difference. At the beginning they knew they could never raise their treason to any respectable magnitude by any name which implies violation of law. They knew their people possessed as much of moral sense, as much of devotion to law and order, and as much pride in and reverence for the history and government of their common country as any other civilized and patriotic people. They knew they could make no advancement directly in the teeth of these strong and noble sentiments. Accordingly, they commenced by an insidious debauching of the public mind. They invented an ingenious sophism which, if conceded, was followed by perfectly logical steps, through all the incidents, to the complete destruction of the Union. The sophism itself is that any State of the Union may consistently with the National Constitution, and therefore lawfully and peacefully, withdraw from the Union without the consent of the Union or of any other State. The little disguise that the supposed right is to be exercised only for just cause, themselves to be the sole judges of its justice, is too thin to merit any notice.

With rebellion thus sugar-coated they have been drugging the public mind of their section for more than thirty years, and until at length they have brought many good men to a willingness to take up arms against the government the day after some assemblage of men have enacted the farcical pretense of taking their State out of the Union, who could have been brought to no such thing the day before."

President Abraham Lincoln
Abraham Lincoln: complete works, comprising his speeches, letters, state papers, and miscellaneous writing
July 4, 1861
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"This sophism derives much, perhaps the whole, of its currency from the assumption that there is some omnipotent and sacred supremacy pertaining to a State—to each State of our Federal Union. Our States have neither more nor less power than that reserved to them in the Union by the Constitution — no one of them ever having been a State out of the Union. ...Having never been States either in substance or in name outside of the Union, whence this magical omnipotence of 'State Rights,' asserting a claim of power to lawfully destroy the Union itself? Much is said about the 'sovereignty' of the States; but the word even is not in the National Constitution, nor, as is believed, in any of the State constitutions. What is 'sovereignty' in the political sense of the term? Would it be far wrong to define it 'a political community without a political superior'? Tested by this, no one of our States except Texas ever was a sovereignty. And even Texas gave up the character on coming into the Union; by which act she acknowledged the Constitution of the United States, and the laws and treaties of the United States made in pursuance of the Constitution, to be for her the supreme law of the land. The States have their status in the Union, and they have no other legal status. If they break from this, they can only do so against law and by revolution. The Union, and not themselves separately, procured their independence and their liberty. By conquest or purchase the Union gave each of them whatever of independence or liberty it has. The Union is older than any of the States, and, in fact, it created them as States. Originally some dependent colonies made the Union, and, in turn, the Union threw off their old dependence for them, and made them States, such as they are. Not one of them ever had a State constitution independent of the Union. Of course, it is not forgotten that all the new States framed their constitutions before they entered the Union — nevertheless, dependent upon and preparatory to coming into the Union."

President Abraham Lincoln
Abraham Lincoln: complete works, comprising his speeches, letters, state papers, and miscellaneous writing
July 4, 1861
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Library Topic: Constitutional Limits

"Unquestionably the States have the powers and rights reserved to them in and by the National Constitution; but among these surely are not included all conceivable powers, however mischievous or destructive, but, at most, such only as were known in the world at the time as governmental powers; and certainly a power to destroy the government itself had never been known as a governmental, as a merely administrative power. This relative matter of national power and State rights, as a principle, is no other than the principle of generality and locality. Whatever concerns the whole should be confided to the whole — to the General Government; while whatever concerns only the State should be left exclusively to the State. This is all there is of original principle about it. ...

The seceders insist that our Constitution admits of secession. They have assumed to make a national constitution of their own, in which of necessity they have either discarded or retained the right of secession as they insist it exists in ours. If they have discarded it, they thereby admit that on principle it ought not to be in ours. If they have retained it by their own construction of ours, they show that to be consistent they must secede from one another whenever they shall find it the easiest way of settling their debts, or effecting any other selfish or unjust object. The principle itself is one of disintegration, and upon which no government can possibly endure."

President Abraham Lincoln
Abraham Lincoln: complete works, comprising his speeches, letters, state papers, and miscellaneous writing
July 4, 1861
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Library Topic: Constitutional Limits

"Our national strife springs not from our permanent part, not from the land we inhabit, not from our national homestead. There is no possible severing of this but would multiply, and not mitigate, evils among us. In all its adaptations and aptitudes it demands union and abhors separation. In fact, it would ere long force reunion, however much of blood and treasure the separation might have cost."

President Abraham Lincoln
Abraham Lincoln: complete works, comprising his speeches, letters, state papers, and miscellaneous writing
December 1, 1862
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"In the course of these antebellum controversies over government policy, Americans developed three different understandings of federalism ...Two understandings stressed the autonomy of state decision making and too often are not distinguished properly by scholars, just as they were often conflated by contemporaries. The doctrine of state sovereignty was developed over time by such lawyers, politicians, and political philosophers as Virginia Congressman John Randolph, jurisprudents St. George Tucker and Spencer Roane, John Taylor of Caroline, and John C. Calhoun, elaborating upon principles originally articulated by Jefferson and Madison in the Kentucky and Virginia Resolutions. ...

Central to the doctrine of state sovereignty was the conviction that the several states became independent, sovereign polities upon throwing off their allegiance to Great Britain. As independent sovereignties they agreed first to the Articles of Confederation and then to the Constitution, which was thus a compact that created a confederacy, not a nation. ...

Sovereignty remained in the states; the federal government was merely their agent—'the representative and organ of the States,' as Calhoun put it—bound to act on behalf of all of them equally when exercising its delegated powers. There could be no conflict over jurisdiction between the central government and an individual state government. Any conflict was really between the individual state and its sister states. The compact provided no forum to adjudicate such conflicts, since the Supreme Court, as part of the subordinate government, could not bind the sovereign states. State courts could ignore federal court decisions that transcended the jurisdiction of the federal government. By 1830, adherents of state sovereignty insisted that each state retained final authority to decide such conflicts by nullifying the operation of federal laws within its own boundaries. Finally, if the other parties to the compact sought to enforce a federal law or court decision over the opposition of the state, the compact would be broken and the state could exercise its sovereign authority to withdraw from the confederacy. States could exercise the same right if the central government failed to fulfill its obligation to promote the interests of all states equally. ...

In general, state-sovereignty theorists stressed the limitations on federal power. Like adherents of state rights, they argued that there was a line separating the jurisdiction of the state governments and the central government. The people of the states had delegated to the United States government power to deal with the external affairs of the states and to regulate relations among them. Final authority over internal matters remained with the states. This boundary between state and national authority inhered in the fact that the central government's powers were delegated, with undelegated powers retained by the states or the people of the states, an understanding formalized by the Tenth Amendment. Therefore, it was essential that the delegation be strictly construed. ...

Stressing the separate sovereignty of each state and denying that the United States was a single nation, it was natural that state-sovereignty theorists perceived as illicit those federal policies that seemed to benefit some states more than others. ...

Since the central government was merely an agent for the states, its powers were really duties to the states. The duties were the measure of its powers, and if it exerted a power for a purpose other than to serve the states, it transgressed its limits."

Michael Les Benedict
Journal of the Abraham Lincoln Association, Vol 10, Issue 1
1988
Library Topic
Library Topic: Constitutional Limits

"The second theory of federalism, state rights, was similar enough to state sovereignty to allow adherents of both to cooperate in the antebellum Democratic party. But the differences were great enough to split the party during the Nullification Crisis of 1832 and to precipitate the party disruption that led to Lincoln's victory in 1860. Like proponents of state sovereignty, state-rights theorists traced the foundations of their argument to the Kentucky and Virginia Resolutions. They, too, were hostile to broad construction of the 'necessary and proper' clause and denounced the notion that the Constitution delegated to the national government a wide range of 'implied powers.' But they recoiled from the idea that the states should have the final say about the constitutionality of federal and state laws, whether by leaving final determination with the state courts or through nullification. ...Madison, Jackson, Taney, and others who shared both a commitment to state rights and a powerful national patriotism developed a concept of federalism that recognized the national character of the United States government but treated the national and the state governments as equally sovereign.

Proponents of state rights ... aimed at limiting the definition of such words as 'commerce' and 'necessary and proper.' They continued to maintain that the 'general welfare' clause did not delegate to Congress a general power to promote the public good. In doing so, they articulated the concept denominated 'dual federalism' by the great constitutional historian Edward S. Corwin. The key to this understanding was the conviction, adopted from Roane and Taylor, that the constitution delegated distinct jurisdictions to the states and to the nation. Whether the people or the states were parties to the Constitution was immaterial, although most adherents of state rights opted for the states. Whoever fashioned the Constitution, they delegated a portion of their sovereign power to the national government and left another portion with the states. Thus, the Constitution did create a truly national government, and at the same time the states retained a wide range of sovereign power. The national government was not merely the agent of the states, and the exercise of its powers was not limited to protecting state interests. The federal system was one that posited 'dual sovereignty.' But the ends toward which each government could exercise its powers were different. Dual federalism led theorists to try to establish a clear demarcation between state and national power. Its proponents worked to define the boundary precisely. ...

For the majority of dual federalists, who accepted Tucker, Roane, and Taylor's argument that the Constitution was a compact among the states, this equal sovereignty was the logical consequence of the process by which the Union was established: The states retained the sovereign power they had not delegated. But even Americans who believed that the people as a whole established the Union could agree that the Tenth Amendment, which reserved to the states or the people all powers not delegated to the United States, provided a constitutional sanction for this arrangement. ...

This concept of national-state equality had several consequences for the scope of national power. The 'necessary and proper' clause must be strictly construed so as to keep the national government within the bounds of the jurisdiction defined by the enumerated powers. Congress and the states should avoid passing laws that might impinge on the jurisdiction of the other. As much as possible, national and state laws should be interpreted to avoid overlap and conflict.ere there was a conflict, however, it was the Supreme Court, not the states, that had the final power to determine the result. It was here that state-rights theory differed most radically from state-sovereignty theory. ...Thus, between the power of the federal judiciary to protect state rights and the power of the people to substitute new leaders for those who had violated a constitutional trust, there was no jurisdiction for nullification or secession."

Michael Les Benedict
Journal of the Abraham Lincoln Association, Vol 10, Issue 1
1988
Library Topic
Library Topic: Constitutional Limits

"The third basic doctrine of federalism was constitutional nationalism. Hamilton, Marshall, Supreme Court Justice Joseph Story, Webster, and others held that it was the people of the United States as a whole, not the people of the individual states, who had established the Constitution. ...Deriving its power from a constitution framed by the people, just as the states did, the United States was not a league or a confederacy. For the purposes enumerated in the Constitution, the American people made up a nation. ...

Generally, nationalists conceived of the United States as having been created by the Constitution—that is, by compact among the people. ...But some argued that the colonial experience and especially the resistance to Britain had welded the people of the thirteen colonies into one nation even before they formalized its government through a written document. Such notions strengthened the argument that the people of the United States as a whole, not the people of the individual states, had established the Constitution.

This understanding of the origins of the Union cut the ground out from under state-sovereignty arguments for secession, nullification, and the idea that the national government was merely the agent of the states. It was equally corrosive of the tenets of dual federalism. Nationality implied that the general government possessed broad, sovereign power, nationalists argued. That was confirmed by the explicit delegation of authority '[t]o 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' in Article I, section 8. The authorization of all laws 'necessary and proper' to the execution of national powers meant those laws appropriate for fulfilling its obligations. Thus, the powers of the federal government were to be construed broadly. ...

National legislation acted upon the people of the United States as a whole; therefore, where the national government had constitutional authority to act, state boundaries were irrelevant. If a law secured a national benefit, the fact that it was to be executed within a particular state made no difference. ...Just as state boundaries could not limit national authority, neither could the fact that states retained sovereign jurisdiction over subjects the Constitution had not placed within national jurisdiction. The question was whether or not the Constitution had delegated power over certain subjects to the government of the United States. The Tenth Amendment, which merely reserved to states those powers not delegated, could not affect that question. ...The fact that a subject was within state jurisdiction did not bar Congress from affecting it by legislation within its delegated powers. In case of conflict, the states must give way. Consequently, nationalists supported the broad use of federal power to promote public welfare, despite the fact they might affect subjects over which the states had authority. Nationalist arguments supported aid to education, the establishment of a national bank, protective tariffs, and an active program of 'internal improvements' designed especially to develop the American transportation system.

Given these understandings, the potential for radical expansion of national jurisdiction is clear. Taken to its logical conclusion, nationalism can threaten the very existence of the states. ...Yet, constitutional nationalism was on the defensive after the 1820s, and its advocates were more worried about defending the principle of broad construction and the Supreme Court's power to adjudicate conflicts between state and national law than they were about the potential of their own theories. Therefore, they generally ignored the challenge they might pose to the whole federal system.

Twentieth-century nationalism and state rights differ primarily over the dual federalist notion that the Tenth Amendment reserves to the states an area of sovereign jurisdiction, even against powers delegated to national government. To state-righters, the Tenth Amendment operates just as the prior nine amendments, all of which are restraints upon delegated powers. ...Twentieth-century nationalists, on the other hand, deny that the Tenth Amendment can restrain federal use of delegated powers. Powers delegated to the national government, expressly or by implication, are 'plenary' and 'absolute,' they insist. ...So to modern nationalists, there is no fixed line separating national from state jurisdiction, no need to avoid overlap. State sovereignty begins only where national sovereignty ends. National power defines the limits of state sovereignty."

Michael Les Benedict
Journal of the Abraham Lincoln Association, Vol 10, Issue 1
1988
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Library Topic: Constitutional Limits
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Commentary or Blog Post

"Across America, there is a growing restlessness and discontent toward Washington, D.C. Frustration is in the air. A recent poll found that four-out-of-five Americans don't trust Washington. Another poll found that eighty-six percent of Americans think the federal government is 'broken.'

In an effort to work toward long-term...

"Jack Balkin has an interesting post on today's two Defense of Marriage Act cases from the federal District of Massachusetts, Gill v. Office of Personnel Management, and Massachusetts v. HHS. The latter case found DOMA unconstitutional, as applied to Massachusetts, because DOMA violates the Tenth Amendment by infringing the state's traditional...

"[...]many self-described conservatives, including Republican presidential candidate John McCain, support the prosecution of people like [medical marijuana patient] Charlie Lynch, abandoning their avowed federalist principles because of blind hostility toward a plant they associate with draft-dodging, flag-burning hippies. It's not surprising, but it's shameful."...

In this opinion piece, Healy talks about recent Federalism-related developments in the Obama administration and medical marijuana legislation in the states.

"A federal district judge in California has ruled that it's unconstitutional to define marriage as a covenant between a man and a woman.

The impact of the decision, should it stand, is that it nationalizes marriage—one of many matters the 10th Amendment leaves to the people and the states. That amendment states that powers not...

This web-only op-ed from the liberal publication The American Prospect rails against Tenth-Amendment advocates, referring to the individuals as "Tenthers."

"[The 'Tenthers'] members are convinced that the 10th Amendment of the Constitution prohibits spending programs and regulations disfavored by conservatives....

"I think the Constitution is a hopeless sham, and that it's not possible to have a successful amendment process. It's not possible to fix it by amendment. It's a set of paper limits enforced and interpreted by the very state that it seeks to limit (see, on this, Hoppe and de Jasay). And if we are going to amend it there are many others I'd want–maybe a return to...

"In states around the country, there's a growing movement to address and resist two of the most abused parts of the Constitution – the Commerce Clause and the 2nd Amendment.  Already being considered in a number of state legislatures, and passed as law in Montana and Tennessee this year, the Firearms Freedom Act (FFA) is a state law that seeks to do just...

"The American Prospect, The New Republic, and other left-of-center outlets are pushing the 'Tenther' smear, aimed at lumping those who, horrors!, still take seriously the Tenth Amendment to the U.S. Constitution in with the Obama birth certificate deniers and 9/11 truthers."

"In response to an unprecedented expansion of federal power, citizens have held hundreds of 'tea party' rallies around the country, and various states are considering 'sovereignty resolutions' invoking the Constitution's Ninth and Tenth Amendments. For example, Michigan's proposal urges 'the federal government to halt its practice of imposing mandates upon the...

Rugy tackles the financial centralization of government over recent decades in this piece: "Last May the Obama administration forced South Carolina not just to take its share of federal stimulus funds, but to spend the money on new programs rather than paying down the state's debt. I was horrified. Obama, I felt, had killed fiscal federalism. Then I realized that...

"National Rifle Association Executive Vice President Wayne LaPierre recently gave a fiery speech before the NRA Annual Convention, railing against those who would shred the Constitution in the wake of the Sept. 11 terror attacks.

The Constitution, he said 'is pristine and inviolate...The Bill of Rights doesn't care about opinion...

"Last week a federal judge confounded both sides of the political spectrum by ruling that the 10th Amendment requires the federal government to recognize state-approved gay marriages. Progressives worried that U.S. District Judge Joseph Tauro's reasoning cast doubt on the constitutionality of many existing federal programs, while conservatives worried that it...

Chart or Graph

"According to data computed by the Cato Institute's Chris Edwards, in 1980 there were 434 federal grant programs for state and local governments."

This table shows, from a financial perspective, the strength of D.C. government vs state government.

"Figure 1 shows federal grant spending in constant dollars from 1960 to 2013."

Analysis Report White Paper

The Civil War often is seen as a turning point in the history of American federalism. In one sense the truth of this perception is beyond dispute. Had the South secured secession by force of arms, the Union would have been broken, the federal system disrupted.

The thesis that republicanism was only suited for small states was given its decisive eighteenth-century formulation by Montesquieu, who emphasized not only republics' need for homogeneity and virtue but also the difficulty of constraining military and executive power in large republics.

Every dollar in temporary federal grants leads to 40 cents of tax increases. Economists have long suggested the existence of a 'flypaper effect,' wherein federal money given to states prompts additional spending.

The theory behind aid to the states is that federal policymakers can design and operate programs in the national interest to efficiently solve local problems. In practice, most federal politicians are not inclined to pursue broad, national goals; they are consumed by the competitive scramble to secure subsidies for their states.

As a political principle, federalism has to do with the constitutional diffusion of power so that the constituting elements in a federal arrangement share in the processes of common policy-making and administration by right, while the activities of the common government are conducted in such a way as to maintain their respective integrities.

Stanford's Philosophy Department put together a rather comprehensive piece defining and analyzing federalism in one encyclopedia article.

I suggest that a coherent classical liberal must be generally supportive of federal political structures, because any division of authority must, necessarily, tend to limit the potential range of political coercion.

Until recently, courts have not addressed the potential conflict between jury selection rules and the possibility that a jury would be called upon to impose the federal death penalty even in states without the death penalty.

If the purpose of federalism is to compensate for worrisome tendencies toward centralization, then it is desirable that the provinces large enough to have political power be stable and entrenched and be able to engender loyalty from their citizens, such as the loyalty felt to ethnoculturally specific provinces.

Unfortunately, policymakers and courts have mainly discarded federalism in recent decades. Congress has undertaken many activities that were traditionally reserved to the states and the private sector. Grants-in-aid are a primary mechanism that the federal government has used to extend its power into state and local affairs.

This Article reports the results of a comprehensive study of core free speech cases decided by the federal courts over a 14-year period. The study finds that speech-restrictive laws adopted by the federal government are far more likely to be upheld than similar laws adopted by state and local governments.

"To consider liberty in relation to the Constitution is to enter upon a subject of some ambiguity. Which Constitution are we to consider? The document has undergone dramatic shifts in its coverage and in its meaning over the course of our history.

Few have done more over the years to articulate the conservative response to liberal judicial activism than Judge Robert Bork. Writing recently in The American Spectator, he argues that courts, working reciprocally with elite opinion, have given constitutional finality to values most Americans oppose

Driven by concerns of disparate treatment and undue leniency in punishment, Congress created an independent agency, the U.S. Sentencing Commission, to formulate a new sentencing regime that would drastically limit the discretion of federal judges.

An intriguing policy report discussing the viewpoints of individualism related to its critiques, social obligations and various viewpoints on the role of the state.

Nathan addresses the role of the states, the Rockefeller lectures on federalism in the mid-1900s, and provides an analysis of where the nation stands today with regards to federalism.

"The Court's opinion in United States v. Lopez sent shock waves through official Washington, not least because Washington had simply assumed, since the era of the New Deal, that its regulatory powers were plenary."

A fundamental reexamination of the federal regulatory structure is in order. It is imperative that Congress reexamine the role of the federal government, as well as the role of criminal sanctions, in environmental law. Reform should begin with the immediate restoration of the legal rights and privileges that are enshrined in the Bill of Rights.

"Plenty of analysts can tell you how government policies differ from country to country, but surprisingly few consider such differences domestically. I find this surprising, because tax and regulatory burdens can differ substantially among the states, which in some cases have total output (and customer bases) larger than most foreign countries."

"The Tenth Amendment expresses the principle that undergirds the entire plan of the original Constitution: the national government possesses only those powers delegated to it. The Framers of the Tenth Amendment had two purposes in mind when they drafted it. The first was a necessary rule of construction. The second was to reaffirm the nature of the federal system...

As Justice Sandra O'Connor has recently observed, those who ratified the Constitution had several reasons for wishing to ensure that the states would continue to hold ultimate power on all matters other than those delegated to the federal government.

"Courts and the legal academy both generally agree that early efforts to limit the federal government to only 'expressly' delegated powers were decisively rebuffed by Chief Justice John Marshall in McCulloch v. Maryland."

The centerpiece of President Bush's crimefighting program is an initiative called Project Safe Neighborhoods. That initiative calls for the hiring of some 700 lawyers who will be dedicated to prosecuting firearm offenses, such as the unlawful possession of a gun by a drug user or a convicted felon.

Recent regulations promulgated by the Office of the Comptroller of the Currency assert a sweeping authority to preempt a broad array of state laws, including consumer protection laws, applicable not only to national banks but also to their state-chartered operating subsidiaries.

Video/Podcast/Media

"There has recently been a resurgence in support of the 10th Amendment by the 'Tenthers' in the recent wave of government expansions, especially with the recent passage of the healthcare overhaul. Roger Pilon gives a brief history of what the Constitution was originally intended to accomplish, and how that paradigm changed in the 1930s. Since the New Deal the...

"This panel will assess American federalism as a competitive institution that offers a marketplace of state regulatory regimes. With the recession impacting some states more heavily than others, it is time to ask whether interstate competition is good for the nation. Should state-by-state approaches to issues such as healthcare, financial regulation, environmental...

"Down on the boardwalk, we interview a few young Americans to find out what they know about the Constitution of the United States. Can you answer the questions? Does it matter?"

"We ask moms on the street what they know about the Constitution. Can you answer the questions? Does it matter?"

This video discusses the recently-passed Montana Firearms Freedom Act and its relevance to Federalism, States' Rights and the state's current battle to reassert sovereignty. Governor Schweitzer is featured in the interview explaining the rationale behind the legislation.

Woods gives the historical background and rationale behind the Kentucky & Virginia resolutions (in response to the Alien and Sedition Act), explaining one of the first battles for power between the state and federal governments.

"As statehouses open for the 2011 session, happy days are not here again. Rather, for most states harsh fiscal reality must be faced. Many question if the fundamental structure of American politics is broken and if this structure will continue to force states and citizens toward a downward spiral of massive, ever-increasing debt.

...

"The Mercatus Center is hosting a breakfast roundtable discussion with Dr. Russell Sobel of West Virginia University and the Mercatus Center on his recent paper, 'Do Intergovernmental Grants Create Ratchet Effects in State and Local Taxes?' This paper addresses the question of whether federal funding in a given year results in states beginning new spending programs...

In this brief video Nathan addresses the concept of Federalism, its relation to today's political parties and its relevance in modern governance.

Primary Document

In this essay, the author, most commonly believed to have been New York judge Robert Yates, provides his reasons for arguing that "a free republic cannot long subsist over a country of the great extent of these states. If then this new constitution is calculated to consolidate the thirteen states into one, as it evidently is, it ought not to be adopted."

"If any possible situation makes it a duty, it is our present important one, for in the course of sixty or ninety days you are to approve of or reject the present proceedings of your [Constitutional] Convention, which, if established, will certainly effect, in a greater or less degree, during the remainder of your lives, those privileges which you esteem dear...

Written under a nom de plume, this extensive political treatise investigates the authority of governments over their subjects and citizens. Specifically, this treatise outlines the concepts of a righteous overthrow of a governmental leader, laying down much of the theoretical groundwork for the the American Revolution. Written from the perspective of the...

"Two essays by Rousseau on the issue of war written during the mid 1750s. The first is a critique of the abbé Saint-Pierre's ideas on the prospects of a European Federation to reduce the likelihood of war. The second is his attempt to formulate a theory of just war."

In this message to Congress, Lincoln makes the case to free the slaves, proposing three constitutional amendments, which would provide for federal compensation to states that voluntary chose to abolish slavery, federal compensation to slave-holders, and federal funds to colonize American Blacks outside the United States. None of these proposed amendments were...

Calling a special session in order to acquire permission to pay for the war against the South, Lincoln lays out the reasoning behind his actions at the start of the war. He also states his case for the preservation of the Union and forcefully argues against the claim that the states have a right to secession.

"It is proposed that humble application be made for an act of Parliament of Great Britain, by virtue of which one general government may be formed in America, including all the said colonies, within and under which government each colony may retain its present constitution, except in the particulars wherein a change may be directed by the said act, as hereafter...

This economic classic is noted for providing us with terms for and expositions of such key economic ideas as the division of labor, "invisible hand," self-interest as a beneficial force, and freedom of trade.

In this famous philosophical treatise, Immanuel Kant defines "Enlightenment" as the ability to think for yourself. Politically speaking, Kant argues that governments should allow their citizens much more freedom, such as the ability to freely speak their minds in the public forum without fear of reprisal and the ability to freely choose or ignore the practices and...

Transcript of the Bill of Rights to the Constitution.

This treatise, written in the early 19th century by Supreme Court Justice Joseph Story, outlines his views on the Tenth Amendment. He viewed the Tenth Amendment as the capstone of the Constitution and the Bill of Rights, claiming that "This amendment is a mere affirmation of what, upon any just reasoning, is a necessary rule of interpreting the constitution."

"We may summarize our view of constitutional government by saying that its ultimate and essential objects are:

1st. To bring the active and planning will of each part of the government into accord with the prevailing popular thought and need, in order that government may be the impartial instrument of a symmetrical national...

"The right to complete freedom in the utterance of political opinions has been so long a fundamental principle in the United States that probably few Americans will recall the fact that exactly a hundred years ago the controversy which eventuated in the complete triumph of that principle raged all over the Union. The Virginia and Kentucky...

Tocqueville's famous analysis of the American economic and political system, as he observed during his travels of the country in the 1830s.

Dred Scott was a slave who, because his owner had moved him to a free state for a period of time, sued for his freedom. The Court held that slaves were not citizens of the United States and therefore not entitled to constitutional protections. And since slaves were considered property, the Court held that their owners could not be deprived of them without due...

This document, written by an anonymous author, outlines his view regarding the separation of powers between the state and national governments. He believes that it is best for the framers of the Constitution to fully enumerate the powers of both the state and federal governments, instead of enumerating one and then being silent on the reserved rights of the other...

Writing under the pseudonym "Publius" James Madison discusses the relationship between the federal and state governments, concluding that "the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes...

In this speech, FDR discusses Jefferson's philosophy in connection with idea that the "purpose of Government [is] based on a universality of interest." As examples of the execution of such a purpose, Roosevelt argues for the proper regulation of public utilities in order to keep prices down and ensure equal access, as well as the establishment of a tariff system...

This case overruled a previous Supreme Court case (National League of Cities v. Usery, 1976), saying that the Tenth Amendment does not impede Congress' authority to regulate employment conditions and practices in state governments. Justice Blackmun writes that the Fair Labor Standards Act, when applied to state government employees, is not in...

This Supreme Court case deals with how the Commerce Clause gives the federal government the right to criminalize the growing and personal usage of marijuana, even when these actions are in accordance to state law. 

California's Compassionate Use Act allows people to use limited amounts of marijuana for strictly medicinal...

This case brought before the Court the question of whether it is "within the authority of Congress in regulating commerce among the States to prohibit the transportation in interstate commerce of manufactured goods, the product of a factory in which, within thirty days prior to their removal therefrom, children under the age of fourteen have been employed or...

In this treatise, 18th century philosopher David Hume writes about his notion of a perfect system of government. His idea of government was very much federalist in nature, based in the rule of law with limited governmental powers.

"The Hart-Cellar Act abolished the national origins quota system that had structured American immigration policy since the 1920s, replacing it with a preference system that focused on immigrants' skills and family relationships with citizens or residents of the U.S. Numerical restrictions on visas were set at 170,000 per year, not including immediate relatives of U...

In this document, the fifth president of the United States, James Monroe, outlines his views on the concept of enumerated powers. He believed that the powers given to the federal government "are enumerated and defined in the most precise form."

This document from the Constitution Ratification Covention shows James Wilson's view regarding the line of demarcation between federal and state authority. In Wilson's view, a blurred line of authority is not necessarily a bad thing, as he believes state and federal governments will be able to act and behave not as "enemies of each other" but rather in harmony, "...

Jefferson argues against the creation of a national bank on the grounds that it is not one of the delegated powers given to Congress under the Constitution.

"Memorandum from the President to: Secretary of Defense, Acting Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health, Education, and Welfare, Secretary of Housing and Urban Development, Director, Office of Economic Opportunity, Director, Office of Emergency Planning.
SUBJECT:...

This case addressed the Fair Labor Standards Act. The dissent, written by Justice William Douglas, explains why the Fair Labor Standards Act cannot be constitutionally applied to the employees of State governments, as such a law is in clear violation of the Tenth Amendment.

This Supreme Court case is considered a landmark case on the issue of federalism. The decision held that the authority of the federal government is expressly enumerated in the Constitution, and that the implied powers of the federal government override the reserved rights of the states. According to Chief Justice Marshall, the Necessary and Proper clause implies...

The U.S. Supreme Court's highly anticipated decision which upheld the Affordable Care Act.

In this case, the U.S. Supreme Court ruled in a 5-4 decision that the Fair Labor Standards Act could not be applied to state governments.

The Fair Labor Standards Act regulates employees working hours, overtime pay, etc. Justice Rehnquist wrote that the Constitution did not grant Congress the ability to control the working...

Lord Action presciently analyzes the dangers inherent in the "modern" concept of nationality. By making "the State and the nation commensurate with each other in theory, it reduces practically to a subject condition all other nationalities that may be within the boundary. ...According, therefore, to the degree of humanity and civilisation in that dominant...

During the wars of the French Revolution Kant was inspired by the Treaty of Basel to contemplate how both self-interest and international cooperation might bring an end to war. This edition is interesting because it was published during World War One."

This case decision, written by Associate Justice Antonin Scalia, ruled that certain aspects of the Brady Handgun Violence Prevention Act are unconstitutional. Scalia argued that the supporters of the Brady Act misinterpreted the Tenth Amendment and the Necessary and Proper clause of the Constitution, as the Brady Act "violates the principle of State Sovereignty" in...

In this work, English philosopher John Stuart Mill argues his views regarding the morality and practicality of government systems, concluding that a representative government is the best form of government.

With this executive order, Reagan sought to "restore the division of governmental responsibilities between the national government and the States that was intended by the Framers of the Constitution and to ensure that the principles of federalism established by the Framers guide the Executive departments and agencies in the formulation and implementation of...

This decision by the Court upheld a federal law that deprived states with a drinking age of less than 21 years of 5 percent of their federal highway funds: "Even if Congress, in view of the Twenty-first Amendment, might lack the power to impose directly a national minimum drinking age (a question not decided here), § 158's indirect encouragement of state action to obtain uniformity in the...

This primary document provides you with St. George Tucker's legal commentaries regarding the separation of powers between the federal and state governments. Tucker believed that while the federal government was indeed granted some powers via the Constitution, he believed that the states themselves are sovereign in their rights and indeed could dissolve the union if...

This page, provided by the Cornell University Law School, contains a relatively in-depth legal discussion regarding the Tenth Amendment. This page is an excellent source for the legal history and background of the Tenth Amendment, as well as a primer for the current debate today.

After the Pennsylvania Convention ratified the new constitution on December 12, 1787, by a vote of 46 to 23, twenty-one members of the minority signed a dissenting address that appeared in the Pennsylvania Packet and Daily Advertiser....

This document provides unique insight into American constitutional views in the 19th century, having fully eliminated the "General Welfare" Clause and any language referring to "General Welfare." Many anti-federalists and especially those in the south believed that the "ticking-time-bomb" of the Clause would eventually lead to further infringements by the federal...

"In a word, the people and the states no longer trust Washington...because Washington has assumed a vast array of regulatory and redistributive powers that were never its to assume--not, that is, if we take the Constitution seriously."

"HAVING shown that no one of the powers transferred to the federal government is unnecessary or improper, the next question to be considered is, whether the whole mass of them will be dangerous to the portion of authority left in the several States."

"The Federalist Papers were a series of articles written under the pen name of Publius by Alexander Hamilton, James Madison, and John Jay. Madison, widely recognized as the Father of the Constitution, would later go on to become President of the United States. Jay would become the first Chief Justice of the US...

The Kentucky Resolutions, passed by the Kentucky Legislature in 1799, asserted that the U.S. Constitution was a "compact" between the states which sought to preserve state sovereignty from federal encroachment.

Montesquieu was a significant advocate of separation of powers between executive, legislative, and judicial branches, and his discussion of law contributed significantly to the concept of rule of law.

The Constitution of the United States established the federal governmental system currently in place with three branches of government. The premise of executive privilege developed from the separation of powers clause.

The dissent of this case, written by Associate Justice Clarence Thomas, argues against the Majority ruling that the States cannot legislate additional prerequisites for their representatives in Congress beyond what is set down in the Constitution.

Justice Thomas argues that because the Constitution is silent on the...

The first written constitution of the United States of America. They maintained state sovereignty, yet unified the colonies into a single nation.

"In Butler, the Court struck down the Agricultural Adjustment Act, which taxed processors in order to pay farmers to reduce production. Although invalidating the statute, the Court adopted the Hamiltonian view (almost in passing) that the General Welfare Clause is a separate grant of congressional authority, linked to and qualified by the spending power...

This is considered a landmark case as it was the first time since the New Deal that federal legislation claiming authority under the commerce clause was overturned. 

Chief Justice William Rehnquist wrote the majority opinion for this case, declaring that the Gun-Free School Zones Act of 1990 was unconstitutional because...

Chief Justice Rehnquist delivered the majority opinion in this case, ruling that the Violence Against Women Act of 1994 was unconstitutional. This law gave victims of gender-motivated crimes the right to sue for damages in federal court. In this instance, the court ruled that the Commerce Clause and Fourteenth Amendment did not give Congress the authority to enact...

This case involved the contest of a charge of "unlawful transportation and possession of intoxicating liquors in violation of section 3 of title 2 of the National Prohibition Act." A lower court had granted the defendants' claim that the "Eighteenth Amendment by authority of which the [National Prohibition Act] was enacted has not been ratified so as to become part...

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