How did the framers of the Constitution define “States’ Rights”?

Posted on August 7, 2011


The Myth

This whole notion of States’ Rights is nothing more than code words for slavery and segregation. If you are talking about State rights you are a racist.

The Truth

Southern States did in fact use the phrase States’ Rights as an excuse to justify slavery and segregation. However this was only the excuse used to justify these hateful and destructive practices not the root cause of them.  The deep seated racism and hatred that brought about these practices existed long before the Constitution and the Tenth Amendment were ratified. Blaming slavery and segregation on States’ Rights is similar to blaming a religion for all of the evils committed in the name of that religion. In both cases it is unfair to blame an ideal for evils committed in the name of that ideal by imperfect people

The Facts

When the States ratified the Constitution they only transferred a small portion of their sovereignty to the federal government, retaining the majority themselves. The Tenth Amendment was added to the Constitution to make it abundantly clear to future generations that the States only transferred to the federal government those powers that are clearly spelled out in the Constitution while retaining all of the remaining powers.

The framers of the Constitution did not use the phrase “States’ Rights” during the convention debates. Instead they used phrases such as “state sovereignty” and “powers retained by the States”. Both phrases and the phrase “States’ Rights” convey a very similar meaning. It was not until many decades after the Constitution was ratified that the phrase “States’ Rights” became popular.

England had a consolidated national government that proved to be so tyrannical our founding fathers risked revolution to separate from it. They so disliked strong, centralized, consolidated national government so much the government created by Articles of Confederation, our first attempt at a constitution after we broke from England, was far too weak. Under the Articles the States were sovereign countries which were tied together by a nearly powerless central government. This type of country that consists of independent countries tied together by a weak central government is called a confederation and the central government is called a federal government. Because they were sovereign countries the States could wield the complete set of government powers available to any independent nation. In other words, under the Articles of Confederation, the States had the right to wield all government powers available to any independent nation. The phrase “the States had the right to wield government powers” was later shortened to “States’ Rights”.

There were two fundamental flaws in the Articles of Confederation. The States were granted certain government powers that should have been left in the hands of the federal government and the federal government was not granted enough government powers to restrain the States when they misbehaved while exercising these powers.

The States were not denied the power to impose tariffs on goods that entered their ports and taxes on goods that were merely passing their borders. The federal government lacked the power to prevent the States from wielding these powers and the States abused them. Trade nearly ground to a halt because the States with ports would slap very high duties on goods that were meant for States that did not have ports and other States would slap very high taxes on goods passing through their borders to other States. Not only did this lead to a near halt in trade it also lead to such great animosity between the States there was almost open hostility between them on many occasions.

The Articles of Confederation also lacked an executive department which meant the federal government did not have exclusive authority to make treaties with foreign nations. That power was left with the States which they abused. States would constantly violate treaties other States made with foreign nations which led to a great deal of tension with these countries. Because the federal government lacked exclusive treaty making power it was nearly impossible for the United States to enter into commercial treaties with other nations.  Under the Articles of Confederation foreign trade was almost non existent.

Under the Articles of Confederation the federal government never had enough money. This was especially true during the Revolutionary War. The incredible amounts of suffering that occurred atValley Forge and Morristown were a direct result of this lack of funds. After the war this lack of funds continued to cause a good deal of hardship for the federal government. Under the Articles of Confederation the federal government could only request taxes from the States. It lacked the power to make the States comply with these requests so the States very often ignored them.

Because the federal government lacked sufficient funds to pay normal expenses along with a very large amount of debt from the Revolutionary War the federal government resorted to issuing large amounts of paper money. This led to inflation. The States also issued large amounts of paper money because they lacked tax revenue from trade. With the federal government and the States all issuing large amounts of paper money, run away inflation resulted.

Over time all of these defects in the Articles of Confederation became clear. It also became clear that the Articles of Confederation needed to be revised. The first attempt at revising the Articles took place in 1786 at Annapolis, Maryland. Not enough delegates attended the meeting so no revisions took place. The delegates were eventually able to convince Congress to send out invitations for a convention the following year.  

At the very beginning of the Constitutional Convention, which opened on May 25 of 1787, Edmund Randolph proposed what became known as the Virginia Plan. This plan created a consolidated national government where the central government would have almost complete control of the States. If the national legislature did not like laws passed by the States it could veto those State laws and even use the military to force States to comply with its wishes. The Virginia Plan would have almost completely stripped the States of all of their sovereignty and transferred the majority of all government powers to this national government. This was nearly the exact opposite of the government created by the Articles of Confederation.

For almost three weeks convention debated focused around this one plan with a great many prominent delegates favoring it. James Madison was the primary author of the Virginia Plan and an ardent supporter of it early on during the convention. The delegates leaned toward this plan early on during the convention because the abuses of the States under the Articles and the chaos these abuses caused were fresh in everyone’s mind

On June 16 the delegation from New Jersey proposed a plan for making only modest changes to the Articles of Confederation in order to fix the main defects. This became known as the New Jersey Plan and it preserved State sovereignty for the most part only transferring a small number of government powers to the federal government. Debate raged back and forth between both plans. The Constitution that resulted from the convention was a compromise between the two plans.

The government created by the Constitution is a unique creation. This government is part national and part federal in nature but is at its core more federal in nature. The States retained the majority of their sovereignty and the government powers associated with it. When the States ratified the Constitution they transferred a limited amount of their sovereignty and government powers to the federal government.  

The powers the States transferred to the federal government are limited in number and are clearly spelled out in the Constitution in Article 1 Section 8 of the Constitution.  These powers include the power to: collect various taxes, the power to borrow money, the exclusive power to regulate trade between the States and with foreign nations, the power to declare war, the power to raise and train armies, the power to coin money. There are 18 powers listed in this section.

Article 1 Section 10 of the Constitution denies a limited number of powers to the States. The powers denied to the States are the powers they abused under the Articles of Confederation and include: the power to enter into treaties, the power to impose any form of tariffs on imports, the power to coin money.

All of the government powers that are not transferred to the Federal Government by Article 1 Section 8 and are not denied to the States by Article 1 Section 10 remain with the States. A very large majority of government powers are not transferred by Section 8 and are not denied by Section 10 so a very large majority of government powers remain with the States. It was made very clear during the constitutional convention debates that the States would retain a very large majority of possible government powers. Another way to say this is the States retained the right to use a very large majority of possible government powers.

An executive department was created by the Constitution so the federal government could make treaties with foreign nations and coordinate the military which was necessary during times of crisis. The federal government alone could make treaties and all the States were bound by these treaties.

The framers of the Constitution created four new fundamental concepts when they hammered out the Constitution during four long grueling months of often heated debates. These four concepts are enumerated powers, limited government, federalism, and constitutional supremacy.

The powers granted to the federal government and the powers denied to the States are clearly spelled out or enumerated in the Constitution. If a power is not enumerated in the Constitution the federal government is not granted that power.

The Constitution created a limited government because the federal government is limited to only those powers enumerated in the Constitution. It is wrong to say the government of the entire United States is a limited government because local governments, State governments, and the federal government work together in a partnership, performing all necessary government functions.

According to Article 6 Section 2 the US Constitution is the supreme law of the land.  For federal laws to be considered valid they must not violate the Constitution. State Constitutions and State laws cannot violate the Constitution.

The Constitution transferred to the federal government those powers necessary for the federal government to provide for the common defense of the entire nation and perform all diplomatic functions. The powers necessary for the federal government to keep the peace between the States were also transferred to the federal government. The States retained all powers that affected the lives of the people living inside their borders and the business operating there. This unique partnership between the federal the State governments is called federalism. Because of federalism the federal government was supposed to stay small compared to the size and power of the States governments. Federalism was meant to be one of the most important constitution protections which were supposed to prevent the federal government from becoming out of control. The framers of the Constitution knew an out of control federal government would be a direct threat to the individual liberty of the citizens of this country and a direct threat to the prosperity of individuals and the nation as a whole.

During the ratification debates for the Constitution it become clear many believed the principle of federalism was not spelled out strong enough. Five States called for an amendment to the Constitution that would make the principle of federalism clear to future generations. That was the purpose of the Tenth Amendment, to spell out the principle of federalism very clearly for future generations.

The Tenth Amendment states:

The powers not delegated to theUnited Statesby the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The powers delegated to the federal government are those 18 listed in Article 1 Section 8 and the powers prohibited to the States are Article 1 Section 10.  If you substitute both of these constitution locations into the Tenth Amendment this amendment now reads:  the powers not delegated to the federal government in Article 1 Section 8 and those not denied to the States in Article 1 Section 10 are reserved to the States or the people. It is up to the people of each State to decide if the State government is granted certain government powers or they remain with the people. The federal government plays no role in these decisions so from the perspective of the federal government all government powers not granted to the federal government or denied to the States reside with the States.

Since there are only 18 government powers granted to the federal government, ten or so denied to the States, and the list of possible government powers is exhaustive, the list of government powers left in the hands of the States is exhaustive. The States have the right to use an exhaustive list of government powers and the federal government has a right to use only a limited number of government powers.

Beginning in the1890s progressives have turned slowly turned the relationship between the federal government and the States on its head. They have done this by completely distorting the plain meaning of the Constitution as it was understood by those that wrote and ratified it. We no longer have a government that is mostly federal in nature. We now have a government that is completely national in nature. The federal government has seized almost complete control of the States with disastrous results. One of the biggest culprits in this unconstitutional seizure of power has been the US Supreme Court. Where the federal government does not have power the Supreme Court does not have jurisdiction to rule or even hear the case.

The Constitution left all decisions involving social issues in the hands of the States. Decisions involving abortion, gay marriage, and all other divisive social issues must be left in the hands of the people of each State. The elected representatives of each State must respect the wishes of people when it comes to these social issues. Since the 1960s the Supreme Court has been violating the Constitution by overturning State laws involving all types of Social issues. The Supreme Court doubly violated the Constitution in those instances. The Supreme Court does not have the power to overturn State laws period let alone those involving social issues. The Supreme Court did not have the power to even here Roe vs. Wade let alone overturn a Texas law banning abortion.

There is a rapidly growing number of people who are demanding the federal government follow the Tenth Amendment and return to the fundamental constitutional principle of federalism. The people are united under the slogan States’ Rights. To claim that they are calling for a return slavery and segregation is just another despicable attempt by progressives to silence people whose political views they do not agree with and whose arguments they cannot beat.

The Proof

James Madison Federalist 45

The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negociation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.

James Iredell, Proposed this Amendment,North CarolinaConvention to Ratify the Constitution

Each state in the Union shall respectively retain every power, jurisdiction, and right, which is not by this Constitution delegated to the Congress of the United States, or to the departments of the general government; nor shall the said Congress, nor any department of the said government, exercise any act of authority over any individual in any of the said states, but such as can be justified under some power particularly given in this Constitution; but the said Constitution shall be considered at all times a solemn instrument, defining the extent of their authority, and the limits of which they cannot rightfully in any instance exceed.

 Joseph Story—Commentaries on the Constitution

 This amendment is a mere affirmation of what, upon any just reasoning, is a necessary rule of interpreting the constitution. Being an instrument of limited and enumerated powers, it follows irresistibly, that what is not conferred, is withheld, and belongs to the state authorities, if invested by their constitutions of government respectively in them; and if not so invested, it is retained BY THE PEOPLE, as a part of their residuary sovereignty. When this amendment was before congress, a proposition was moved, to insert the word “expressly” before “delegated,” so as to read “the powers not expressly delegated to theUnited States by the constitution

 Excerpts from TheKentuckyResolutions by Thomas Jefferson

1. Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

3. Resolved, That it is true as a general principle, and is also expressly declared by one of the amendments to the Constitutions, that “the powers not delegated to the United States by the Constitution, our prohibited by it to the States, are reserved to the States respectively, or to the people”; and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated, rather than the use be destroyed. And thus also they guarded against all abridgment by theUnited States of the freedom of religious opinions and exercises, and retained to themselves the right of protecting the same, as this State, by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference. And that in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press”: thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press: insomuch, that whatever violated either, throws down the sanctuary which covers the others, arid that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That, therefore, the act of Congress of the United States, passed on the 14th day of July, 1798, intituled “An Act in addition to the act intituled An Act for the punishment of certain crimes against the United States,” which does abridge the freedom of the press, is not law, but is altogether void, and of no force.

7. Resolved, That the construction applied by the General Government (as is evidenced by sundry of their proceedings) to those parts of the Constitution of the United States which delegate to Congress a power “to lay and collect taxes, duties, imports, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” and “to make all laws which shall be necessary and proper for carrying into execution, the powers vested by the Constitution in the government of the United States, or in any department or officer thereof,” goes to the destruction of all limits prescribed to their powers by the Constitution: that words meant by the instrument to be subsidiary only to the execution of limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part to be so taken as to destroy the whole residue of that instrument: that the proceedings of the General Government under color of these articles, will be a fit and necessary subject of revisal and correction, at a time of greater tranquillity, while those specified in the preceding resolutions call for immediate redress.

…a common union: that it considers union, for specified national purposes, and particularly to those specified in their late federal compact, to be friendly, to the peace, happiness and prosperity of all the States: that faithful to that compact, according to the plain intent and meaning in which it was understood and acceded to by the several parties, it is sincerely anxious for its preservation: that it does also believe, that to take from the States all the powers of self-government and transfer them to a general and consolidated government, without regard to the special delegations and reservations solemnly agreed to in that compact, is not for the peace, happiness or prosperity of these States; and that therefore this commonwealth is determined, as it doubts not its co-States are, to submit to undelegated, and consequently unlimited powers in no man, or body of men on earth: that in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them: that nevertheless, this commonwealth, from motives of regard and respect for its co States, has wished to communicate with them on the subject: that with them alone it is proper to communicate, they alone being parties to the compact, and solely authorized to judge in the last resort of the powers exercised under it, Congress being not a party, but merely the creature of the compact, and subject as to its assumptions of power to the final judgment of those by whom, and for whose use itself and its powers were all created and modified

…And that the rights and liberties of their co-States will be exposed to no dangers by remaining embarked in a common bottom with their own. That they will concur with this commonwealth in considering the said acts as so palpably against the Constitution as to amount to an undisguised declaration that that compact is not meant to be the measure of the powers of the General Government, but that it will proceed in the exercise over these States, of all powers whatsoever: that they will view this as seizing the rights of the States, and consolidating them in the hands of the General Government, with a power assumed to bind the States (not merely as the cases made federal, casus fœderis but), in all cases whatsoever, by laws made, not with their consent, but by others against their consent: that this would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our authority; and that the co-States, recurring to their natural right in cases not made federal, will concur in declaring these acts void, and of no force, and will each take measures of its own for providing that neither these acts, nor any others of the General Government not plainly and intentionally authorized by the Constitution, shalt be exercised within their respective territories

Excerpts from the Virginia Resolution by James Madison

That this assembly most solemnly declares a warm attachment to the Union of the States, to maintain which it pledges all its powers; and that for this end, it is their duty to watch over and oppose every infraction of those principles which constitute the only basis of thatUnion, because a faithful observance of them, can alone secure it’s existence and the public happiness.

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

That the General Assembly doth also express its deep regret, that a spirit has in sundry instances, been manifested by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them; and that implications have appeared of a design to expound certain general phrases (which having been copied from the very limited grant of power, in the former articles of confederation were the less liable to be misconstrued) so as to destroy the meaning and effect, of the particular enumeration which necessarily explains and limits the general phrases; and so as to consolidate the states by degrees, into one sovereignty, the obvious tendency and inevitable consequence of which would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy.

That the good people of this commonwealth, having ever felt, and continuing to feel, the most sincere affection for their brethren of the other states; the truest anxiety for establishing and perpetuating the union of all; and the most scrupulous fidelity to that constitution, which is the pledge of mutual friendship, and the instrument of mutual happiness; the General Assembly doth solemnly appeal to the like dispositions of the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid, are unconstitutional; and that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining the Authorities, Rights, and Liberties, referred to the States respectively, or to the people.

Letter from Thomas Jefferson to William Johnson, 1823

The capital and leading object of the Constitution was to leave with the States all authorities which respected their own citizens only and to transfer to theUnited Statesthose which respected citizens of foreign or other States; to make us several as to ourselves, but one as to all others. In the latter case, then, constructions should lean to the general jurisdiction if the words will bear it, and in favor of the States in the former if possible to be so construed

 James Madison—speech before CongressJune 8,1789

the state legislatures will jealously and closely watch the operation of this government, and be able to resist with more effect every assumption of power than any other power on earth can do; and the greatest opponents to a federal government admit the state legislatures to be sure guardians of the people’s liberty.

 Thomas Jefferson in a letter to Robert J. Garnett, 1824

 The best general key for the solution of questions of power between our governments is the fact that ‘every foreign and federal power is given to the Federal Government, and to the States every power purely domestic.’ I recollect but one instance of control vested in the Federal over the State authorities in a matter purely domestic, which is that of metallic tenders. The Federal is, in truth, our foreign government, which department alone is taken from the sovereignty of the separate States.

 Thomas Jefferson 1791 discussing the importance of the 10th Amendment

 I consider the foundation of the Constitution as laid on this ground: That “all powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people. (10th Amendment) To take a single step beyond the boundaries thus specifically drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition

 From a letter Thomas Jefferson to Spencer Roane, 1821

 It is a fatal heresy to suppose that either our State governments are superior to the Federal or the Federal to the States. The people, to whom all authority belongs, have divided the powers of government into two distinct departments, the leading characters of which are foreign and domestic; and they have appointed for each a distinct set of functionaries. These they have made coordinate, checking and balancing each other like the three cardinal departments in the individual States; each equally supreme as to the powers delegated to itself, and neither authorized ultimately to decide what belongs to itself or to its coparcener in government. As independent, in fact, as different nations

Posted in: Uncategorized