Op-Ed: Federalism v. sectionalism, then and now

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” – Ratified, Dec. 5, 1791

Those who know the U.S. Constitution are aware that the 10th Amendment vastly limits the powers of the federal government. It grants them specific authorities with confined powers. The states hold all powers not vested exclusively with the federal government. Therefore, state politics are critically important because states are charged with protecting the welfare, safety and health of the citizens. But since the dissolution of “dual federalism” in the 1900s, those powers have shifted detrimentally in favor of federal politics. Through the expansion of federal agencies and programs, federalism has encroached on state sovereignty; often with little or no resistance from the states: until it is too late.

The Constitution assigns 17 specific powers to the federal government. However, if they overreach these constraints, the Constitution does not have a mechanism for the states to stop this other than the courts. In 1798, Jefferson and Madison refused to uphold the Alien and Sedition Acts and jointly authored the Kentucky and Virginia Resolutions that established the “state compact theory.” They believed these federal laws violated the First and the Tenth Amendments. This was the first time it was recognized states had the power to nullify federal laws if they were thought unconstitutional. Unfortunately the doctrine of nullification was a flash in the pan and eventually fell on deft ears.

These resolutions have been controversial since their passage. Ten state legislatures immediately disavowed them. Members or Congress claimed they did “theoretical damage to the Constitution” and it would be “a recipe for disunion.” George Washington was so appalled he told Patrick Henry that if they were “systematically and pertinaciously pursued,” they would “produce coercion.” As their influence reverberated throughout the nation, we learned it was not that easy to enforce the 10th Amendment. These resolutions divided Jeffersonian Democrats with states rights proponents such as John C. Calhoun, which led up to the “Nullification Crisis.”

“States should not trust federal officials with non-constitutional powers. This will destroy a free government.” – Thomas Jefferson

In 1832, South Carolina blamed an economic downturn on federal tariff policy passed after the War of 1812. They decreed the federal Tariffs of 1828 and 1832 were unconstitutional and null and void within the states. President Andrew Jackson, a southerner who did not support this act of defiance, lobbied Congress to pass the Force Act that authorized the use of military force against any state that resisted the tariff acts. Jackson set a dangerous precedent that has led to endless scrimmages between the southern and the northern states and the federal government. Most all of the disputes end up in the courts.

“When the time for action arrives, stop thinking and go in.” – Andrew Jackson

Since ratification of the Constitution, two questions continue to be debated: What is the nature of the union? What powers, privileges, duties, and responsibilities does the Constitution grant to the federal government and reserve to the states? During the 200 plus year history of the Constitution, issues have been continually debated and have been shaped by the nation’s political, social and economic history. And more times than not these disagreements are sectional conflicts concerning sociopolitical geographics. As our politically divided disunity festers, this will get worse, not better.

The Civil War is the most storied example of a fight to protect states rights in U.S. history. And the feds flexed their muscles to show everyone who was boss. To this day, the north claims it was a war to end slavery while the south argues it was fought to protect states rights. Most historians concur it was a successful attempt by Abraham Lincoln to protect the powers of federalism over sectionalism. Nobody will ever agree to agree on the real cause of the war. But they will agree; it started a feud without geographic objectives, based solely on the issue of state sovereignty.

“The American Civil War proved to be one of the most ferocious wars ever fought.” – John Keegan

After the Civil War the term “states rights” has been considered a pejorative. One common core textbook, describes the term “states rights” as an antebellum euphemism for “the right of the states to maintain slaves as property.” An op-ed in the New York Times in 2013 declared that “since the nation’s founding, states rights has been a rallying cry to disenfranchise large segments of a states population.” A plaque at the Smithsonian describes states rights as a doctrine that “protected the institution of slavery.” In his book “The Civil War Awakening,” author Adam Goodhart asserts “the only significant states rights people were arguing about in 1860 was the right to enslave or not to.”

Blue states have chastised red states for years for claiming federal laws violate their states rights. But they are the fist to squeal when it applies to them. Support for marijuana legalization hit an all-time “high” last year. When Colorado and Washington blazed the “pot trail,” they claimed they could break federal law since it was the will of the people. When Massachusetts became the first state to legalize LBGTQ marriage in 2003, they rallied for states rights. When Illinois joined the list of blue states in 2013 to extend their marriage rights to include gay and lesbian couples, they quoted states rights. “It’s our right to stop planning rallies and start planning weddings.” – Lt. Gov. Sheila Simon

Thomas Jefferson once wrote, “The spirit of resistance to government is so valuable on certain occasions.” States rights is not a foreign concept. It was the keystone of the Great Compromise that established our nation. The Treaty of Paris, signed in Paris by representatives of King George III of Great Britain and the United States in 1783, acknowledges the United States existence as “free, sovereign, and independent states.” There’s nothing dubious about this. Sovereign states do not have an obligation of subservience to an almighty power that chooses to violate its parameters as they wish.

“When injustice becomes law, resistance becomes duty.” – Thomas Jefferson

FDR’s New Deal and LBJ’s Great Society programs emboldened Creative Federalism by further empowering the federal government over the states by expanding federal grants, increased control over the states that reinvigorated contemporary federalism. Through their increased state welfare and social welfare programs, Presidents Barack Obama and Joe Biden both increased support and aid systems, as well as a host of unfunded federal mandates, that will disrupt U.S. state unity for decades. Now, too few of the states know the difference between state and federal rights.

“My reading of history convinces me that most bad government results from too much government.” – Thomas Jefferson

When Andrew Jackson signed the Force Act to end the “Nullification Crisis,” he dealt a fatal blow to states rights. Since our Constitution is devoted to protecting state sovereignty, today the doctrine of states rights is no longer sectional but national. If we consider the latest antics in Congress, there is a growing need to protect states rights on both sides of the aisle. States rights were established by The Treaty of Paris in 1783. They shelter us from federal overreach by taking power away from special interests and federal politicians so we maintain our founders’ vision of libertarian freedom and keep federalism at bay.

“Sometimes it is said that man cannot be trusted with the government of himself. Can he, then, be trusted with the government of others?” – Thomas Jefferson