20th Century Quotes on Federalism and States' Rights

"We are too apt to think that our American political system is distinguished by its central structure, by its President and Congress and courts, which the Constitution of the Union set up. As a matter of fact, it is distinguished by its local structure, by the extreme vitality of its parts. It would be an impossibility without its division of powers. From the first America has been a nation in the making. It has come to maturity by the stimulation of no central force or guidance, but by an abounding self-helping, self-sufficing energy in its parts, which severally brought themselves into existence and added themselves to the Union, pleasing first of all themselves in the framing of their laws and constitutions, not asking leave to exist and constitute themselves, but existing first and asking leave afterwards, self-originated, self-constituted, self-confident, self-sustaining, veritable communities, demanding only recognition. Communities develop, not by external but by internal forces. Else they do not live at all. Our commonwealths have not come into existence by invitation, like plants in a tended garden; they have sprung up of themselves, irrepressible, a sturdy, spontaneous product of the nature of men nurtured in a free air.

It is this spontaneity and variety, this independent and irrepressible life of its communities, that has given our system its extraordinary elasticity, which has preserved it from the paralysis which has sooner or later fallen upon every people who have looked to their central government to patronize and nurture them. It is this, also, which has made our political system so admirable an instrumentality of vital constitutional understandings. Throughout these lectures I have described constitutional government as that which is maintained upon the basis of an intimate understanding between those who conduct government and those who obey it. Nowhere has it been possible to maintain such understandings more successfully or with a nicer adjustment to every variety of circumstance than in the United States. The distribution of the chief powers of government among the States is the localization and specialization of constitutional understandings; and this elastic adaptation of constitutional processes to the various and changing conditions of a new country and a vast area has been the real cause of our political success.

The division of powers between the States and the federal government effected by our federal Constitution was the normal and natural division for this purpose. Under it the States possess all the ordinary legal choices that shape a people's life. Theirs is the whole of the ordinary field of law; the regulation of domestic relations and of the relations between employer and employe, the determination of property rights and of the validity and enforcement of contracts, the definition of crimes and their punishment, the definition of the many and subtle rights and obligations which lie outside the fields of property and contract, the establishment of the laws of incorporation and of the rules governing the conduct of every kind of business. The presumption insisted upon by the courts in every argument with regard to the powers of the federal government is that it has no power not explicitly granted it by the federal Constitution or reasonably to be inferred as the natural or necessary accompaniment of the powers there indisputably conveyed to it; but the presumption with regard to the powers of the States they have always held to be of exactly the opposite kind. It is that the States of course possess every power that government has ever anywhere exercised, except only those powers which their own constitutions or the Constitution of the United States explicitly or by plain inference withhold. They are the ordinary governments of the country; the federal government is its instrument only for particular purposes."

Library Topic
Library Topic: Constitutional Limits

"Congress is, indeed, the immediate government of the people. It does not govern the States, but acts directly upon individuals, as directly as the governments of the States themselves. It does not stand at a distance and look on, — to be ready for an occasional interference, — but is the immediate and familiar instrument of the people in everything that it undertakes, as if there were no States. The States do not stand between it and the people. It is as intimate as they in its contact with the affairs of the country's life. But the field of its action is distinct, restricted, definite. ...

The one source from which all debatable federal powers of domestic regulation now spring is the power to regulate commerce between the States.

The chief object of the Union and of the revision of the Articles of Confederation which gave us our present federal Constitution was undoubtedly commercial regulation. It was not political but economic warfare between the States which threatened the existence of the new Union and made every prospect of national growth and independence doubtful, — the warfare of selfish commercial regulation. It was intended, accordingly, that the chief, one might almost say the only, domestic power of Congress in respect of the daily life of the people should be the power to regulate commerce. 

It seemed a power susceptible of very simple definition at the first. Only in our own day of extraordinary variation from the older and simpler types of industry has it assumed aspects both new and without limit of variety. It is now no longer possible to frame any simple or comprehensive definition of 'commerce.' Above all is it difficult to distinguish the 'commerce' which is confined within the boundaries of a single State and subject to its domestic regulation from that which passes from State to State and lies within the jurisdiction of Congress. The actual interchange of goods, which, strictly speaking, is commerce, within the narrow and specific meaning of the term, is now so married to their production under our great modern industrial combinations, organization and community of interest have so obscured the differences between the several parts of business which once it was easy to discriminate, that the power to regulate commerce subtly extends its borders every year into new fields of enterprise and pries into every matter of economic effort."

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"Undoubtedly the powers of the federal government have grown, have even grown enormously, since the creation of the government; and they have grown for the most part without amendment of the Constitution. But they have grown in almost every instance by a process which must be regarded as perfectly normal and legitimate. The Constitution cannot be regarded as a mere legal document, to be read as a will or a contract would be. It must, of the necessity of the case, be a vehicle of life. As the life of the nation changes so must the interpretation of the document which contains it change, by a nice adjustment, determined, not by the original intention of those who drew the paper, but by the exigencies and the new aspects of life itself. Changes of fact and alterations of opinion bring in their train actual extensions of community of interest, actual additions to the catalogue of things which must be included under the general terms of the law. The commerce of great systems of railway is, of course, not the commerce of wagon roads, the only land commerce known in the days when the Constitution was drafted. The common interests of a nation bound together in thought and interest and action by the telegraph and the telephone, as well as by the rushing mails which every express train carries, have a scope and variety, an infinite multiplication and intricate interlacing of which a simpler day can have had no conception."

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"In our view, the necessary effect of this act is, by means of a prohibition against the movement in interstate commerce of ordinary commercial commodities, to regulate the hours of labor of children in factories and mines within the States, a purely state authority. Thus, the act in a two-fold sense is repugnant to the Constitution. It not only transcends the authority delegated to Congress over commerce, but also exerts a power as to a purely local matter to which the federal authority does not extend. The far-reaching result of upholding the act cannot be more plainly indicated than by pointing out that, if Congress can thus regulate matters entrusted to local authority by prohibition of the movement of commodities in interstate commerce, all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and, thus, our system of government be practically destroyed.

For these reasons, we hold that this law exceeds the constitutional authority of Congress."

Justice William R. Day
U.S. Supreme Court
1918
Library Topic
Library Topic: Constitutional Limits

"The act does not meddle with anything belonging to the States. They may regulate their internal affairs and their domestic commerce as they like. But when they seek to send their products across the state line, they are no longer within their rights. If there were no Constitution and no Congress, their power to cross the line would depend upon their neighbors. Under the Constitution, such commerce belongs not to the States, but to Congress to regulate. It may carry out its views of public policy whatever indirect effect they may have upon the activities of the States. Instead of being encountered by a prohibitive tariff at her boundaries, the State encounters the public policy of the United States, which it is for Congress to express. The public policy of the United States is shaped with a view to the benefit of the nation as a whole. If, as has been the case within the memory of men still living, a State should take a different view of the propriety of sustaining a lottery from that which generally prevails, I cannot believe that the fact would require a different decision from that reached in Champion v. Ames. Yet, in that case, it would be said with quite as much force as in this that Congress was attempting to intermeddle with the State's domestic affairs. The national welfare, as understood by Congress, may require a different attitude within its sphere from that of some self-seeking State. It seems to me entirely constitutional for Congress to enforce its understanding by all the means at its command."

Justice Oliver Wendell Holmes Jr.
U.S. Supreme Court
1918
Library Topic
Library Topic: Constitutional Limits

"The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that powers not granted to the United States were reserved to the states or to the people. It added nothing to the instrument as originally ratified and has no limited and special operation."

Justice Owen J. Roberts
U.S. Supreme Court
February 24, 1931
Library Topic
Library Topic: Constitutional Limits

"The great size of the country, enlarged by Jefferson's Louisiana Purchase, offers vast advantages for those who live in it. But it imposes grave problems upon those who are vested with its direction and control. In normal times it is likely to live in the isolation of sectionalism. It becomes a loose association of communities, with little common thought and little realization of mutual interdependence.

This reminds me of what Chesterton keenly remarked concerning the members of the British Empire. They are, he says, like the passengers in an omnibus. They get to know each other only in case of an accident.

It is only in a crisis that we look back to our common concerns.

The stress of a vast emergency rudely wakes us all from our local concerns and turns us to wider concerns. Then for the first time we look to a larger measure of cooperation, a more exact measuring of our resources, and what is most important, a more imaginative and purposeful planning.

Two weeks ago I said that we were facing an emergency today more grave than that of war. This I repeat tonight.

That a great fear has swept the country few can doubt. Normal times lull us into complacency. We become lazy and contented. Then with the coming of economic stress we feel the disturbing hand of fear. This fear spreads to the entire country and with more or less unity we turn to our common Government at Washington."

Franklin Delano Roosevelt
The American Presidency Project
April 18, 1932
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"It is not necessary for us in any way to discredit the great financial genius of Alexander Hamilton or the school of thought of the early Federalists to point out that they were frank in their belief that certain sections of the Nation and certain individuals within those sections were more fitted than others to conduct Government.

Federalism, as Woodrow Wilson so wisely put it, was a group 'possessed of unity and informed by a conscious solidarity of interest.' It was the purpose of Jefferson to teach the country that the solidarity of Federalism was only a partial one, that it represented only a minority of the people, that to build a great Nation the interests of all groups in every part must be considered, and that only in a large, national unity could real security be found. The whole life and all of the methods of Jefferson were an exemplification of this fundamental. He has been called a politician because he devoted years to the building of a political party. But this labor was in itself a definite and practical act aimed at the unification of all parts of the country in support of common principles. When people carelessly or snobbishly deride political parties, they overlook the fact that the party system of Government is one of the greatest methods of unification and of teaching people to think in common terms of our civilization."

Franklin Delano Roosevelt
The American Presidency Project
April 18, 1932
Library Topic

"The question in such cases is not what powers the Federal Government ought to have, but what powers have, in fact, been given it by the people. ...

Ours is a dual form of government; in every State there are two Governments -- the State and the United States; each State has all governmental powers save such as the people, by the Constitution, have conferred upon the United States, denied to the States, or reserved to themselves."

U.S. Supreme Court
January 6, 1936
Library Topic
Library Topic: Constitutional Limits

"Congress cannot invade state jurisdiction by purchasing the action of individuals any more than by compelling it."

U.S. Supreme Court
January 6, 1936
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"If the novel view of the General Welfare Clause now advanced in support of the tax were accepted, that clause would not only enable Congress to supplant the States in the regulation of agriculture and of all other industries as well, but would furnish the means whereby all of the other provisions of the Constitution, sedulously framed to define and limit the power of the United States and preserve the powers of the States, could be broken down, the independence of the individual States obliterated, and the United States converted into a central government exercising uncontrolled police power throughout the Union superseding all local control over local concerns."

U.S. Supreme Court
January 6, 1936
Library Topic
Library Topic: Constitutional Limits
Library Topic: What is Government?

"The basis of creative federalism is cooperation.

If Federal assistance programs to State and local governments are to achieve their goals, more is needed than money alone. Effective organization, management and administration are required at each level of government. These programs must be carried out jointly; therefore, they should be worked out and planned in a cooperative spirit with those chief officials of State, county and local governments who are answerable to their citizens.

To the fullest practical extent I want you to take steps to afford representatives of the chief executives of State and local government the opportunity to advise and consult in the development and execution of programs which directly affect the conduct of State and local affairs.

I believe these arrangements will greatly strengthen the Federal system at all levels. Our objective is to make certain that vital new Federal assistance programs are made workable at the point of impact."

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"(f) The nature of our constitutional system encourages a healthy diversity in the public policies adopted by the people of the several States according to their own conditions, needs, and desires. In the search for enlightened public policy, individual States and communities are free to experiment with a variety of approaches to public issues.

(g) Acts of the national government-whether legislative, executive, or judicial in nature—that exceed the enumerated powers of that government under the Constitution violate the principle of federalism established by the Framers.

(h) Policies of the national government should recognize the responsibility of—and should encourage opportunities for—individuals, families, neighborhoods, local governments, and private associations to achieve their personal, social, and economic objectives through cooperative effort.

(i) In the absence of clear constitutional or statutory authority, the presumption of sovereignty should rest with the individual States. Uncertainties regarding the legitimate authority of the national government should be resolved against regulation at the national level."

President Ronald Reagan
The American Presidency Project
April 8, 1981
Library Topic
Library Topic: Constitutional Limits

"In my view, establishment of a minimum drinking age of 21 is not sufficiently related to interstate highway construction to justify so conditioning funds appropriated for that purpose. ...

When Congress appropriates money to build a highway, it is entitled to insist that the highway be a safe one. But it is not entitled to insist as a condition of the use of highway funds that the State impose or change regulations in other areas of the State's social and economic life because of an attenuated or tangential relationship to highway use or safety. Indeed, if the rule were otherwise, the Congress could effectively regulate almost any area of a State's social, political, or economic life on the theory that use of the interstate transportation system is somehow enhanced. ...

The immense size and power of the Government of the United States ought not obscure its fundamental character. It remains a Government of enumerated powers."

Justice Sandra Day O'Connor
U.S. Supreme Court
1987
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"Instead, we think that the language in our earlier opinions stands for the unexceptionable proposition that the power may not be used to induce the States to engage in activities that would themselves be unconstitutional. ...But no such claim can be or is made here. Were South Dakota to succumb to the blandishments offered by Congress and raise its drinking age to 21, the State's action in so doing would not violate the constitutional rights of anyone."

Chief Justice William Rehnquist
U.S. Supreme Court
April 23, 1987
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"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."

Daniel J. Elazar
Jerusalem Center for Public Affairs
January 16, 1991
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"The Government admits, under its 'costs of crime' reasoning, that Congress could regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce. ...Similarly, under the Government's 'national productivity' reasoning, Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the theories that the Government presents in support of [the Gun Free School Zones Act], it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate."

Chief Justice William Rehnquist
U.S. Supreme Court
April 26, 1995
Library Topic

"The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce.

To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. ...The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, ...and that there never will be a distinction between what is truly national and what is truly local... . This we are unwilling to do."

Chief Justice William Rehnquist
U.S. Supreme Court
April 26, 1995
Library Topic
Library Topic: Constitutional Limits

"By its terms the [10th] amendment tells us nothing about which powers are delegated to the federal government, which are prohibited to the states, or which are reserved to the states or to the people. To determine that, we have to look to the centerpiece of the Constitution, the doctrine of enumerated powers.

That doctrine is discussed at length in the Federalist Papers. But it is explicit as well in the very first sentence of Article 1, section 1, of the Constitution ('All legislative Powers herein granted . . .') and in the Tenth Amendment's reference to powers 'not delegated,' 'prohibited', and 'reserved.'

Plainly, power resides in the first instance in the people, who then grant or delegate their power, reserve it, or prohibit its exercise, not immediately through periodic elections but rather institutionally--through the Constitution. The importance of that starting point cannot be overstated, for it is the foundation of whatever legitimacy our system of government can claim. What the Tenth Amendment says, in a nutshell, is this: if a power has not been delegated to the federal government, that government simply does not have it. In that case it becomes a question of state law whether the power is held by a state or, failing that, by the people, having never been granted to either government.

At bottom, then, the Tenth Amendment is not about federal vs. state, much less about federal-state 'partnerships,' block grants, 'swapping,' 'turnbacks,' or any of the other modern concepts of intergovernmental governance. It is about legitimacy. As the final member of the Bill of Rights, and the culmination of the founding period, the Tenth Amendment recapitulates the philosophy of government first set forth in the Declaration of Independence, that governments are instituted to secure our rights, 'deriving their just powers from the consent of the governed.' Without that consent, as manifest in the Constitution, power is simply not there.

It is the doctrine of enumerated powers, then, that gives content to the Tenth Amendment, informs its theory of legitimacy, and limits the federal government. Power is granted or delegated by the people, enumerated in the Constitution, and thus limited by virtue of that delegation and enumeration. The Framers could hardly have enumerated all of our rights--a problem the Ninth Amendment was meant to address. They could enumerate the federal government's powers, which they did to restrain that government. The doctrine of enumerated powers was meant to be the principal line of defense against overweening government. The Bill of Rights, added two years after the Constitution was ratified, was meant as a secondary defense."

Roger Pilon Ph.D., J.D.
Subcommittee on Human Resources and Intergovernmental Relations Committee on the Government Reform and Oversight, U.S. House of Representatives
July 20, 1995
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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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