What States' Rights?

Fri Mar 13 14:00:18 PDT 2009

I'm not sure we should make so much of the term "right" versus "power" or
"immunity." The Twelfth Amendment, for instance, refers to the "right" of
the House of Representatives to choose the President, which in the context
is basically the same thing as a power: "whenever the right of choice shall
devolve upon them."

Christopher R. Green
Assistant Professor of Law
University of Mississippi School of Law
Lamar Law Center
P.O. Box 1848
University, MS 38677
(662) 915-6837

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From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sean Wilson
Sent: Friday, March 13, 2009 3:46 PM
To: conlawprof at lists.ucla.edu
Subject: Fw: What States' Rights?

... one of the interesting things about why the nomenclature changes in the
post-FDR world is that states only have this sort of talk left to them. That
is, once you accept that a general welfare power is given to the federal
government in the post FDR world, and that the Tenth Amendment becomes a
"truism," all there is left to do is talk metaphorically about the "rights"
of  a state. The change is nomenclature is really ideological and reflects
cultural change. States are no longer partners, and we no longer talk about
the federal monster in terms of jurisdictional terms -- "the power is only
conferred here." Instead, we talk with paternal or "rights" language sets.
So you have an occasional decision that gives a "right" to a state against
this or that practice. 

I suppose, however, that it may not be true that only individuals have
"rights." I mean, we also talk of rights for corporations and for animals
(at least we debate it). So perhaps there is nothing grammatically
inappropriate with the change in vocabulary. It is, instead, an ideological
and cultural-change phenomenon.

One only talks of "rights" in this sense for one who is otherwise
subjugated.

Regards.   

Dr. Sean Wilson, Esq. 
Assistant Professor
Wright State University
New Website: http://seanwilson.org/
Daily Visitors: http://seanwilson.org/homepagelucy.html
SSRN papers:  <http://ssrn.com/author=596860> http://ssrn.com/author=596860

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From: Raymond Kessler <rkessler at sulross.edu>
To: Sean Wilson <whoooo26505 at yahoo.com>; conlawprof at lists.ucla.edu
Sent: Friday, March 13, 2009 3:57:23 PM
Subject: RE: What States' Rights?

Thanks Sean!  Let me nit-pick something.  IMHO states do not have "rights."
Individuals, and in some cases corporations and perhaps other business
entities have rights.   States have powers, immunities and perhaps
privileges.   Talking about states' "rights" conjures up in some people's
minds analogies to individual rights which is confusing and misleading.  For
instance, what the states get in the 10th and 11th Amendments are powers
and immunities, respectively.    I cannot recall anything in the
Constitution that specifically give the states any "rights." I think what
you are discussing is not "rights" but powers.

Ray Kessler

Prof. of  Criminal Justice

Sul Ross State Univ.

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sean Wilson
Sent: Thursday, March 12, 2009 7:14 PM
To: conlawprof at lists.ucla.edu
Subject: Re: What States' Rights?

... this sounds convoluted. There are two issues here: (a) was the
government given a general-welfare power; and (b) was it given implied
powers via the necessary and proper clause (and the changing of the Articles
language)? Quite obviously, (a) is false, (b) is true.

The argument against (a) is seriously confused. It's like saying that a team
that sends in a running play didn't actually call the play, because a group
within the coaching network originally meant to coach soccer. But when they
did what they did anyway, out came the sequence of events with other actors
that sent the play in, which means it wasn't called. I mean, it makes
absolutely no sense whatsoever. 

The Virginia Plan had language conducive to a general welfare power. It was
defeated. Hamilton's plan would have essentially carved the states into
districts. It was defeated. The argument against the need for a Bill of
Rights assumed a limited creation. There was precedent for
sovereignty-sharing relations, or at least a rough idea of it (Scotland and
England). The plain text of the document indicates that a general-welfare
power is not conferred to Congress.  The 10th Amendment seals that deal, at
least as a matter of what Simon says.

There's nothing to argue.

Regards. 

Dr. Sean Wilson, Esq. 
Assistant Professor

Wright State University

New Website: http://seanwilson.org/

Daily Visitors: http://seanwilson.org/homepagelucy.html

SSRN papers:  <http://ssrn.com/author=596860> http://ssrn.com/author=596860

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From: Calvin Johnson <CJohnson at law.utexas.edu>
To: conlawprof at lists.ucla.edu
Sent: Thursday, March 12, 2009 7:17:36 PM
Subject: What States' Rights?

            States Rights? What States' Rights?: Implying Limitations on the
Federal Government from the Overall Design,  57 Buffalo L. Rev. 225 (2009)
http://www.utexas.edu/law/faculty/calvinjohnson/states-rights-what-states-ri
ghts.pdf  defends my book, Righteous Anger at the Wicked States: The Meaning
of the Founders' Constitution (Cambridge), which is just coming out in paper
back.  I write this message to stir up the waters 

            States Rights? first argues that it is inappropriate for the
Supreme Court to imply limitations on the federal government from its
overall design.  The historical Constitution was a weapon directed against
the states.  The most pressing need was to give the federal government a
source of tax revenue to restore the ability to borrow, but the Framers went
beyond the immediate fiscal need because of their anger at the states and
took away the sovereignty (supremacy) of the states.  A better understanding
of the history was be unfriendly to Anti-Federalism, even today's variety. 

            The most important limitation on the federal government is the
enumerated power doctrine, which says the powers listed in Art. I, section 8
are exhaustive.  That is probably not the intended meaning of the text
because the framers took out the words in the Articles of Confederation that
Congress would have only the powers "expressly delegated" to it, because the
limitation had proved "destructive to the Union" and because the Framers
wanted the unenumerated federal power over passports.  The Federalists
defended the omission against attack to the end.  The most important written
limitation on the federal government in favor of the states is the
requirement has Congress may not contract state borders without state
permission and that rule has been honored mostly in the breaching of it.

            Professor Keith Whittington argues that the states were founded
first and that the federal government has powers only by delegation from the
states.  The better case, however, is that the Congress was formed first and
created independent states or at least that the states and Congress moved
toward independence in tandem.   The Constitution itself claims it gets its
authority directly from the People.  The power had to come from the People
to be binding upon the states.  No state in its corporate capacity was asked
to ratify the Constitution.   

            Professor Whittington argues that we must interpret the
Constitution by looking to its pivotal voter, not to its most extreme
nationalist proponents.  The Constitution was ratified, however, by
delegates representing two thirds of the voters and, once ratified,
opposition collapsed.  The pivotal voter is deeply within the nationalist
coalition and includes no Anti-Federalists, nor Anti-Federalist arguments.

            "State's Rights" is also commonly antithetical to individual
rights.  States are not rights bearing entities.  The term "state's rights"
is a misleading and should be dropped.

            States Rights? argues, secondly, as a matter of history that
righteous anger at the wickedness of the states was a necessary cause of the
Constitution.  The Framers refused to ask the states for unanimous
confirmation of the Constitution, as required by the Articles of
Confederation and their instructions from Congress and the states, because
they did not think they get unanimity and were too angry to care.   Had they
not been so angry, they might well have accommodated New York's last offer
to allow the federal government to have the impost or import taxes, but with
New York paper used in payment.  Had they not been so angry they would have
preserved state sovereignty and the confederation mode. 

            Professor Whittington argues that "direct tax" is more important
than "anger" as an explanation for the Constitution.  It is difficult to
take the "direct tax" issue seriously, however, because the majority opposed
direct taxes, even while ratifying the Constitution as a whole, because
direct taxes were ineffectually used over the next seventy five years,
because Congress could have been given the direct tax even under the
Confederation mode and because as the Federalists and Anti-Federalists
competed for votes, their positions were not very different from each other.

            Finally, States Rights? doubts that history of the Constitution
should be binding on us.  The Founders were trying to get specific programs
adopted and solve specific problems of 1787.  All their important programs
were adopted or abandoned by mid-1790s.  We can make analogies today, but
all the energy of their intent was exhausted in the early years.  We can use
the Founders for inspiration when they are right, but they themselves were
not writing to solve controversies over two hundred years in the future.
What is most important, however, is that bad history - indeed mythology -
should not be made binding on us, given the near-impossibility of amending
our Constitution. 

Calvin H. Johnson 
Andrews & Kurth Centennial Professor of Law 
The University of  Texas  School of Law 
727 E. Dean Keeton (26th) St. 
Austin, TX 78705 
(512) 232-1306 (voice) 
FAX: (512) 232-2399 
Website: http://www.utexas.edu/law/faculty/cvs/chj7107_cv.pdf 
For reviews, chapters, discounts and news on Johnson, Righteous Anger at the
Wicked States: The Meaning of the Founders Constitution (Cambridge
University Press 2005) see
http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/

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