What States' Rights?

Fri Mar 13 14:14:58 PDT 2009

        My recollection from looking into this a while back is that the
notion of the "rights" of "States" is quite old.  See, e.g., Federalist
No. 81:  "It is evident, it could not be done without waging war against
the contracting State; and to ascribe to the federal courts, by mere
implication, and in destruction of a pre-existing right of the State
governments, a power which would involve such a consequence, would be
altogether forced and unwarrantable."


________________________________

	From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Christopher
Green
	Sent: Friday, March 13, 2009 2:00 PM
	To: conlawprof at lists.ucla.edu
	Subject: RE: What States' Rights?
	
	
	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

________________________________

	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> 


________________________________

	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> 

	 
________________________________


	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-state
s-rights.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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