Only one of America’s fifty state constitutions makes the startling claim that “the people of [this state] have the sole and exclusive right of governing themselves as a free, sovereign, and independent State.” Which state is it? Which state would throw down the gauntlet of state sovereignty in this day and age? If you guessed Mississippi, or South Carolina, or some other former member of the Confederacy, you’d be wrong.
The answer is Massachusetts. In words written by John Adams in 1780 and never repealed, the Massachusetts Declaration of Rights positively forbids the commonwealth from relinquishing any state “right” that has not been “expressly delegated” to the central government.1 It is as bold an assertion of states’ rights as you’ll find in any state constitution. And it has nothing to do with slavery, Jim Crow, or any of the other reactionary movements assumed to be lurking behind states’ rights.
The key to understanding the history of states’ rights is to disregard virtually everything you’ve read on the subject. Textbooks, newspapers, and magazines lazily perpetuate the myth that American history has been one long struggle between reactionary states and an enlightened federal government. According to this narrative, those who sought to expand the power of the central government “were fighting for progress and . . . a freer, stronger national government to cope with the problems of the time,” as one professor put it.2 States’ rights, by contrast, is described as an idea that “took hold in the run-up to the Civil War in order for the South to preserve, among other things, the institution of slavery,” according to a 2009 article in the Christian Science Monitor.3 American history, like all history, “is written by the winners,” as George Orwell famously observed.4 And in its long-running campaign to usurp power from the states and the people, the federal government has—so far—been victorious.
An honest history of states’ rights has to start with an acknowledgment that it is a doctrine dating back to long before the Civil War; in fact, to before the nation’s founding. As we’ll see in this chapter, nobody invented states’ rights; rather, the idea flowed naturally from the distinct character of the original states and their colonial predecessors. When Americans started debating whether to ratify the Constitution, the defining issue was clearly the tension between states’ rights and central power. That was the question that separated the “Federalists,” who favored stronger central government, from the “Anti-Federalists,” who argued for states’ rights. Although the Federalists prevailed in their quest to ratify the Constitution, it was the Anti-Federalists—the states’ rights faction—who insisted on a Bill of Rights, the part of the Constitution that we most revere today.5
The States Came First
The federal government opened its doors for business on March 4, 1789—the first session of the First Congress.6 Eager to establish its reputation, Congress did nothing that first day. It would be another month before Congress could gather enough members for a voting quorum and before George Washington would be inaugurated as the first president.
While the federal government was still trying to establish its existence, the states were a fact of life for all Americans. By the time the new Congress passed its first law, the Virginia House of Burgesses had been meeting for 170 years; the Massachusetts General Court for 160. The Maryland Assembly, created in 1632, had enacted America’s first Bill of Rights in 1639.7 The states also had venerable cultural and religious traditions. New England Puritans had been sending their sons to Harvard since 1636, while the College of William and Mary had been educating High-Church Virginians since 1695. David Hackett Fischer’s groundbreaking history Albion’s Seed argues that the entire foundation of American culture was established by four waves of British immigrants, all of whom arrived before 1776. New England, for example, had a well-defined culture as early as 1641, according to Fischer.8 And Akhil Reed Amar, a law professor at Yale, observes that “in the seventeenth century, British North America began not as a single continent-wide juridical entity but as a series of different and distinct colonies, each founded at a different moment with a distinct charter, a distinct history, a distinct immigration pattern, a distinct set of laws and legal institutions, and so on.”9
The one and only common authority that the colonists had ever known was Great Britain—and that experience did not endear early Americans to the idea of central government. “No taxation without representation” is, after all, a plea for local self-government. If Parliament wanted money from America, it was supposed to ask the colonial legislatures—only the elected representatives of the Americans could legitimately impose taxes upon them. Or so the colonists thought. After nearly a century of relatively benign neglect from London, American leaders had come to believe, by the 1760s, that the British had essentially granted the colonies control over their own finances.10 But after Britain’s costly struggles in the Seven Years’ War, Parliament dramatically escalated its top-down control over the colonies. Infamous measures such as the Stamp Act, the Tea Act, and the so-called Coercive Acts reminded the Americans that their rights—and property—were at the mercy of a distant legislature over which they had little influence.
When the break with England finally came, the Continental Congress did not declare independence on behalf of a single “United States.” Rather, the Declaration of Independence asserts that the former colonies “are and of Right ought to be Free and Independent States”—plural. The Paris Peace Treaty of 1783, which formally ended the Revolutionary War, mirrors the language of the Declaration, recognizing each individual state to be “free, sovereign and independent.” So limited was the power of Congress at that time, the American negotiators at the peace conference could not even commit to paying compensation to British loyalists whose property was confiscated during the war. Rather, the Americans simply agreed that Congress would “earnestly recommend” that the state legislatures provide such compensation.11
Federalists vs. Anti-Federalists
In the meantime, the newly independent states had formed a union under the Articles of Confederation. The Articles, adopted by the Continental Congress in 1777, clearly reflects the determination of the newly independent states to resist central control. After an introductory paragraph specifying that the name of the “confederacy” shall be the United States of America, the document gets down to business:
Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not expressly delegated to the United States, in Congress assembled.
And those powers “expressly delegated” to Congress were few and far between. Congress had power over foreign affairs and defense—provided that the states supplied the money and the troops—and not much else. Referred to as a “firm league of friendship,” the United States operated like an international organization, with each state having a single vote in Congress, and with any structural changes requiring unanimous consent by the states.
The Articles, like the later Constitution, assumes that the essential unit of American politics is the state, not the central government. The “United States” existed only at the pleasure of the states, not the other way around. To the extent that America’s central government possessed any authority, it would have to be carved out of powers that would otherwise belong to the individual states. In 1883, Henry Adams—a Harvard historian and a descendant of presidents John Adams and John Quincy Adams—would declare states’ rights to be the “starting point of American history and constitutional law.”12
That’s not to say that the Articles of Confederation struck the right balance between the states and the Union. As Americans learned in the years after 1777, certain hoped-for features of the Union—like a functioning internal market, and a strong defense—required a more robust central government. The Philadelphia convention of 1787 sought to address that problem. The convention itself, however, was a gathering of states—each state had one vote regardless of population—because only the states could grant additional powers to the central government.
While a few nationalists like Alexander Hamilton may have dreamed of a single, consolidated government on the European model, the Philadelphia delegates never seriously considered such an alternative. Instead, the convention would endorse James Madison’s “Virginia Plan,” which created the framework of the new constitution. But even parts of that plan went too far. Madison’s initial proposal would have given the United States Congress a veto over state legislation. In attempting to sell this idea to skeptical delegates, Madison explained that the congressional “negative” would give Congress the same power over the states that the British Parliament had enjoyed “in Royal Colonies before the Revolution.”13
The delegates were not comforted. Elbridge Gerry of Massachusetts warned that such a veto power “may enslave the states.” Gerry and other delegates firmly held that the central government must not be allowed to usurp “powers the states had claimed ever since they were colonies chafing against parliamentary oversight,” according to legal historian Alison LaCroix.14 Maryland’s Luther Martin put it a little more bluntly: the congressional negative would lead to “the destruction of the State governments, and the introduction of monarchy.” The convention overwhelmingly rejected this part of Madison’s plan.
Likewise, Madison’s proposal to give Congress authority to legislate “in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation” was greeted with outright skepticism and would ultimately fail to win over the delegates.
The Constitution that was adopted by the convention on September 17, 1787, was an elegant document that was “conspicuously hostile to centralized power,” as the scholars Glenn Hubbard and Tim Kane observe.15 The framers entrusted the central government with limited powers, mainly those concerning questions of defense, foreign affairs, and interstate and international commerce. The states, by contrast, retained power over “all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people,” as Madison observed in the Federalist no. 45.
The framers deliberately designed the Constitution to keep the federal government from overpowering the states. First, the federal government was granted only limited powers. Second, the Senate was originally elected by the legislatures of the states, and senators were considered “ambassadors” of their state governments.16 Third, the national government itself was divided into three branches with checks and balances among them. Both federalism and separation of powers have the virtue of preventing too much power from being concentrated in too few hands. The combination of the two doctrines, as Madison wrote in the Federalist no. 51, creates “a double security . . . to the rights of the people.”
The Bill of Rights
Nothing against Madison’s “double security”—he was absolutely right about that. But since we’re playing for high stakes, how about a triple security: a Bill of Rights? Unlike the state constitutions in existence in 1787, the proposed federal constitution contained no general declaration of rights, and almost no specific safeguards of rights apart from a few scattered provisions like those concerning habeas corpus and ex post facto laws. Nor did the Constitution have any affirmative guarantees of the retained rights of the states. The need to protect individual and states’ rights against the new federal government was the major concern of those who initially opposed the ratification of the Constitution—individuals who were loosely grouped together as “Anti-Federalists.”
Despite their label, the Anti-Federalists were not against federalism—that is, a system of decentralized government. To the contrary, that is precisely what they favored. The government under the Articles of Confederation was referred to at the time as a “federal” system, and both Federalists and Anti-Federalists wanted the United States to remain a federation. Most Anti-Federalists were willing to support some form of “national” (i.e., centralized) government overlaying the federal system—but they believed that the Philadelphia convention had gone too far.17
Given that most Americans favored a federal system, Madison, Hamilton, and their allies won a major rhetorical victory when they appropriated the title of “Federalists”—even though they were promoting a stronger national government—and to label the opposition as “Anti-Federalists.”18 The Anti-Federalists never accepted the designation; to them, they were the federalists and the other guys were “nationalists” or, worse, proponents of “consolidated” government, a radically unpopular concept during the founding era.
In the state ratifying conventions, the Anti-Federalists won support for the proposals that would eventually become the first ten amendments to the Constitution—that is, the Bill of Rights. Today, law professors and politicians talk about the Bill of Rights as if it were a gift from the federal government. Cass Sunstein, a Harvard professor and a former Obama administration official, for example, describes our individual rights as “a product of government.”19 Douglas J. Amy, a professor of politics at Mount Holyoke College, argues that “we only have the right of free speech because it is guaranteed in our constitution. If we didn’t have our constitution, or if we didn’t have government, our civil liberties would literally not exist.”20 But that’s not how our Founders saw it. The Bill of Rights was not an assertion of government power; it was a restriction of such power. As Madison told Congress when he proposed the amendments, the Bill of Rights consists of “particular exceptions to the grant of power” to the general government.21
At the heart of the Bill of Rights is the preservation of states’ rights. The Bill of Rights begins with the immortal words “Congress shall make no law”—abridging freedom of speech, and so forth. There are no limits put on the states; the first ten amendments are all about restraining the power of the federal government. It was not until the twentieth century—under the banner of the “Living Constitution”—that courts began to apply the Bill of Rights to state governments. As Professor Amar puts it, “The Bill of Rights protected the ability of local governments to monitor and deter federal abuse.”22
The Anti-Federalists have been slandered by many histoas as backward-looking sentimentalists; “provincial” and “agrarian” in the words of Richard E. Ellis, as distinct from the “cosmopolitan, commercial, and elite-minded” Federalists.23 In reality, the Anti-Federalists included many sophisticated thinkers, including some like George Mason who had attended the Philadelphia convention.24 The Anti-Federalists were correct about the need for a charter of rights, and for the right reasons—first and foremost, the preservation of liberty. Most Anti-Federalists acknowledged the advantages of a stronger central government, particularly in commercial and military matters. But for them, the primary purpose of government was neither commercial nor military; it was to secure the maximum amount of individual liberty.
Patrick Henry—of “Give me liberty or give me death” fame—acknowledged his devotion to the United States, but he felt that his liberty was safer in the hands of his fellow Virginians. In declaring his opposition to the new Constitution, he said, “The first thing I have at heart is American liberty, the second thing is American union.” Surely that is the correct order of things: liberty first. If Americans had wanted nothing more than to be united under a strong central authority, there would have been no reason to break away from Britain. The point of the American federal union was—and should still be—to secure the rights of the people, including the right to local self-government.
The Anti-Federalists also understood that republican democracy works best on a small scale, with decisions being made as close to the people as possible. The larger the unit of government, the greater the risks of polarization and gridlock. Many delegates at the Constitutional Convention acknowledged this truth. A Connecticut delegate and future chief justice of the Supreme Court, Oliver Ellsworth, observed—in words that would not be amiss today—that “the largest states are the worst governed.”25 Think California, Illinois, and New York. The last thing the Anti-Federalists wanted was to have delicate local issues played out on a national stage.
The “cosmopolitan” Federalists, for all their sophistication, mostly opposed a Bill of Rights for reasons that seem strikingly naive today. Many of them argued that the Constitution’s system of checks and balances alone would suffice to protect the people. Hamilton, for example, argued that the Constitution’s mechanisms would render it “next to impossible that an impolitic or wicked measure should pass scrutiny with success.”26 Benjamin Rush denounced any bill of rights as an “idle and superfluous instrument” and rejoiced that the Constitution had not been “disgraced” by one.27
Incredibly, some Federalists insisted that the new government would attract such virtuous men that the people would have nothing to fear. The writer “Cassius” confidently predicted that the Congress would consist of men “of unsullied reputations . . . in whose bosoms the sacred principle of patriotism has, always, glowed in its utmost purity.”28 He must have been referring to a different Congress.
The Ninth and Tenth Amendments
In addition to the particular guarantees of state and individual rights, a majority of Anti-Federalists and state ratifying conventions also insisted on amendments to prevent federal judges and politicians from usurping states’ rights. They settled on a two-track approach: an express reservation of state powers, but also a rule against expansive interpretation of federal powers.29
The first part of the equation became the Tenth Amendment, which provides that “the powers not delegated to the United States [i.e., the federal government] by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.” In other words, the federal government can exercise only those powers granted to it in the Constitution; all other powers belong to the states and the people.
Much has been made of the fact that the Tenth Amendment limits the federal government to those powers “delegated” to it, whereas the Articles of Confederation had limited the central government to those powers “expressly delegated” to it. The framers’ decision not to add the word “expressly” to the text of what became the Tenth Amendment has been interpreted to mean that the Constitution gives Congress “implied powers,” the limits of which are unknown.
But there is no evidence that any of the Founders thought that the omission of the word “expressly” was meant to open up new vistas of social engineering for Congress. Rather, “expressly” was left out of the Tenth Amendment to clarify that Congress could exercise narrow powers that were “incidental” to its enumerated powers. That point had to be emphasized because under the Articles of Confederation some had insisted that Congress could not exercise even perfunctory powers, like granting passports, because such functions were not “expressly” delegated. Even Chief Justice John Marshall, one of the most fervent nationalizers of the founding era, noted in McCulloch v. Maryland (1819) that the omission of the word “expressly” was simply meant to avoid the “embarrassments” suffered under the Articles of Confederation.
Anti-Federalists were wary of the power of judges to exploit ambiguities in the Constitution’s text. Pamphleteers like Brutus accurately predicted that the federal judiciary would end up determining “the nature and extent of the general government,” which, in turn, would affect state powers.30 In particular, Anti-Federalists worried about the provisions of Article I that would empower Congress to impose taxes “for the general Welfare,” and to enact all laws that are “necessary and proper” for executing the government’s enumerated powers. (Again, they were right: the general welfare clause and the necessary and proper clause would provide the main justifications for federal growth over the next two centuries.) In light of the broad wording of these provisions, judges could end up deciding that the national government’s power is unlimited except in instances in which the Constitution imposes specific restrictions.
To address these concerns, the state conventions called for a “fixed rule” of interpretation that would restrain judges from creatively amending the Constitution; this “fixed rule” would ultimately become the Ninth Amendment. Typical of these calls was the resolution of the North Carolina convention that “those clauses which declare that Congress shall not exercise certain powers be not interpreted in any manner to extend the powers of Congress.” In other words, just because the Constitution includes some express limits on Congress’s power, that doesn’t mean that everything else is fair game. You can’t say, for example, that the express prohibitions against ex post facto laws and bills of attainder somehow imply that Congress is otherwise unrestricted in enacting criminal laws.31
The initial draft of what became the Ninth Amendment adopted the state conventions’ language about limiting the “powers” of Congress. But in the final version of the amendment, the language of “powers” has turned to “rights.”
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The change in terminology from “powers” to “rights” caused some hesitation. Edmund Randolph, the governor of Virginia, delayed the ratification of the Bill of Rights until he could be confident that it actually contained a proviso against expanded congressional “powers.” Madison and his allies ultimately persuaded the Virginians that the rights of the people and the powers of the central government were two sides of the same coin. Any expansion of the powers of Congress would effectively be a contraction of the people’s collective right to local self-government. That is what the Ninth Amendment protects.32
During the early years of the Republic, courts read the Ninth and Tenth Amendments as complementary provisions standing for the proposition that the federal government must stick to its delegated powers, and that those powers cannot be enlarged by creative interpretation. Although the Tenth Amendment was cited more frequently, courts would often read the Ninth Amendment’s interpretive provisions into the Tenth. Nowadays, however, the idea of equating states’ rights with the rights of the people has “long since fallen out of fashion,” as the law professor Kurt Lash notes, requiring “a degree of intellectual effort to hear the words of the Ninth Amendment as they were heard by James Madison and the Founders.”33
Once the Supreme Court buckled under the New Deal, it simply stopped enforcing the Ninth and Tenth Amendments, because there was no way to reconcile the Constitution’s text with the rapidly expanding role of the central government. The Tenth Amendment would be belittled as a “mere truism,” while the Ninth would disappear completely, only to resurface in the court’s 1965 decision in Griswold v. Connecticut. In Griswold, Justice Arthur Goldberg’s concurring opinion famously revived the Ninth Amendment as a potential reason to strike down Connecticut’s prohibition on contraceptives. The metamorphosis of the Ninth Amendment into a weapon to be used against the states is precisely the sort of interpretive latitude that the amendment’s framers were trying to prevent.
But those developments lay in the future. With the Bill of Rights ratified, the Constitution was generally accepted by the former Anti-Federalists, many of whom coalesced around Thomas Jefferson’s leadership as “strict constructionists”—that is, they sought to keep the federal government within the boundaries laid out by the enumerated powers on the one hand, and the Bill of Rights on the other.34 In this way, they hoped to preserve the United States as a federal system and to prevent any slide toward a consolidated national system. Meanwhile, Hamilton and his cronies appropriated the term “Federalist” for the party favoring a loose construction of federal powers that would allow Congress to take over areas of state jurisdiction. Jefferson openly resented this use of the term “Federalist.” Even as he neared the end of his life, Jefferson would lash out at “those who formerly usurped the name of federalists, which in fact, they never were.”35