In American political discourse, states' rights are political powers held by the state governments rather than the federal government according to the United States Constitution, reflecting especially the enumerated powers of Congress and the Tenth Amendment. The enumerated powers that are listed in the Constitution include exclusive federal powers, as well as concurrent powers that are shared with the states, and all of those powers are contrasted with the reserved powers—also called states' rights—that only the states possess.Gardbaum, Stephen. "Congress's Power to Pre-Empt the States", Pepperdine Law Review, Vol. 33, p. 39 (2005).Bardes, Barbara et al. American Government and Politics Today: The Essentials (Cengage Learning, 2008).
The doctrine of reserved powers was central to the Anti-Federalist critique of the proposed Constitution. They criticized the lack of a bill of rights, articulated the fears of that the new government would be too large and prone to mainintaining a standing army; in spite of the writings being intended for a small audience, these ideas were disseminated in pamphlets, papers, or manuscripts through various channels and found their way into broader American discourse of the time. In response to these and other objections, the Federalists agreed to recommend a bill of rights—including the Tenth Amendment—as conditions for ratification. The debates created the historical grounding wherein the Kentucky and Virginia Resolutions of 1798-99 first formally stated the compact theory of Union, arguing that the federal government is a creature of the states, that the states are parties to the Constitution, that the federal government has only delegated powers and the states are arbiters when judging federal infractions. The Resolutions, authored by Thomas Jefferson and James Madison in clandestine collaboration, were written in response to the Alien and Sedition Acts (1798) which were passed by the Federalists; in the Kentucky Resolution Jefferson argued that nullification (though he used interpose, his stance would evolve into Calhoun's nullification) was the remedy and that any federal law exceeding powers not delegated was void ab initio and of no force. However, in the Virginia Resolution, Madison's stance was more moderate and he did not call for a single state to unilaterally void federal law. He instead argued in favor of interposition—that the states had a moral duty to arrest the progress of evil, but they should do so by appealing to other states and moral suasion.
Constitutional origins The compact theory of the Union, was articulated by John Taylor of Caroline in New Views of the Constitution (1823), in which he argued that the states are parties to the Constitution with discretion concerning the federal government's infractions and retain sovereignty over powers not delegated to the federal government. Taylor traced the roots of this theory to the drafting of the Articles of Confederation and the Constitution, pointing to the ratification process—in which the states, not the people of the United States as a whole, approved the document—and the rejection of a proposed federal veto over state laws, as evidence of this theory. This view was contested by nationalists who argued for a broad interpretation of federal power. The Supreme Court addressed this debate in McCulloch v. Maryland (1819), where Chief Justice John Marshall asserted that the federal government, when acting in its constitutional powers, was supreme over any conflicting state laws. After McCulloch, rulings concerned the scope of Congress's enumerated powers and whether the states retained any reserved powers to the exclusion of the federal government.
The Supremacy Clause The Supremacy Clause of the U.S. Constitution states:
In The Federalist Papers, ratification proponent Alexander Hamilton explained the limitations this clause placed on the proposed federal government, describing that acts of the federal government were binding on the states and the people therein only if the act was in pursuance of constitutionally granted powers, and juxtaposing acts which exceeded those bounds as "void and of no force":
Controversy to 1865 In the period between the American Revolution and the ratification of the United States Constitution, the states had united under a much weaker federal government and a much stronger state and local government, pursuant to the Articles of Confederation. The Articles gave the central government very little, if any, authority to overrule individual state actions. The Constitution subsequently strengthened the central government, authorizing it to exercise powers deemed necessary to exercise its authority, with an ambiguous boundary between the two co-existing levels of government. In the event of any conflict between state and federal law, the Constitution resolved the conflict via the Supremacy Clause of Article VI in favor of the federal government, which declares federal law the "supreme Law of the Land" and provides that "the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." However, the Supremacy Clause only applies if the federal government is acting in pursuit of its constitutionally authorized powers, as noted by the phrase "in pursuance thereof" in the actual text of the Supremacy Clause itself (see above).
Alien and Sedition Acts When the Federalists passed the Alien and Sedition Acts in 1798, Thomas Jefferson and James Madison secretly wrote the Kentucky and Virginia Resolutions, which provided a classic statement in support of states' rights and called on state legislatures to nullify unconstitutional federal laws. (The other states, however, did not follow suit and several rejected the notion that states could nullify federal law.) According to this theory, the federal union is a voluntary association of states, and if the central government goes too far each state has the right to nullify that law. As Jefferson said in the Kentucky Resolutions:
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 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 party, its co-States forming, as to itself, the other party....each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
The Kentucky and Virginia Resolutions, which became part of the Principles of '98, along with the supporting Report of 1800 by Madison, became final documents of Jefferson's Democratic-Republican Party. Gutzman explains that Governor Edmund Randolph designed the protest in the name of moderation. Gutzman argues that in 1798, Madison espoused states' rights to defeat national legislation that he maintained was a threat to republicanism. During 1831–33, the South Carolina Nullifiers quoted Madison in their defense of states' rights. But Madison feared that the growing support for this doctrine would undermine the union and argued that by ratifying the Constitution states had transferred their sovereignty to the federal government.
The most vociferous supporters of states' rights, such as John Randolph of Roanoke, were called "Old Republicans" into the 1820s and 1830s.
Tate (2011) undertook a literary criticism of a major book by John Taylor of Caroline, New Views of the Constitution of the United States. Tate argues it is structured as a forensic historiography modeled on the techniques of 18th-century Whig lawyers. Taylor believed that evidence from American history gave proof of state sovereignty within the union, against the arguments of nationalists such as U.S. Chief Justice John Marshall.
Another states' rights dispute occurred over the War of 1812. At the Hartford Convention of 1814–15, New England Federalists voiced opposition to President Madison's war, and discussed secession from the Union. In the end they stopped short of calls for secession, but when their report appeared at the same time as news of the great American victory at the Battle of New Orleans, the Federalists were politically ruined.James M Banner, To the Hartford Convention: the Federalists and the origins of party politics in Massachusetts, 1789–1815 (1970)
Nullification Crisis of 1832
One major and continuous strain on the union, from roughly 1820 through the Civil War, was the issue of trade and tariffs. Heavily dependent upon international trade, the almost entirely agricultural and export-oriented South imported most of its manufactured goods from Europe or obtained them from the North. The North, by contrast, had a growing domestic industrial economy that viewed foreign trade as competition. Trade barriers, especially protective tariffs, were viewed as harmful to the Southern economy, which depended on exports.
In 1828, Congress passed protective tariffs to benefit trade in the northern states, but they were detrimental to the South. Southerners vocally expressed their tariff opposition in documents such as the South Carolina Exposition and Protest in 1828, written in response to the "Tariff of Abominations". The Exposition and Protest was the work of South Carolina senator and former vice president John C. Calhoun, formerly an advocate of protective tariffs and internal improvements at federal expense.
South Carolina's Nullification Ordinance declared that both the tariff of 1828 and the tariff of 1832 were null and void within the state borders of South Carolina. This action initiated the Nullification Crisis. Passed by a state convention on November 24, 1832, it led, on December 10, to President Andrew Jackson's proclamation against South Carolina, which sent a naval flotilla and a threat of sending federal troops to enforce the tariffs; Jackson authorized this under color of national authority, claiming in his 1832 Proclamation Regarding Nullification that "our social compact in express terms declares, that the laws of the United States, its Constitution, and treaties made under it, are the supreme law of the land" and for greater caution adds, "that the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."
Civil War
Over the following decades, another central dispute over states' rights moved to the forefront. The issue of slavery polarized the union, with the Jeffersonian principles often being used by both sides—anti-slavery Northerners, and Southern slaveholders and secessionists—in debates that ultimately led to the American Civil War. Supporters of slavery often argued that one of the rights of the states was the protection of slave property wherever it went, a position endorsed by the U.S. Supreme Court in the1857 Dred Scott decision. In contrast, opponents of slavery argued that the non-slave states' rights were violated both by that decision and by the Fugitive Slave Law of 1850. While historians in the 21st century agree on the centrality of the conflict over slavery, they disagree sharply on which aspects of this conflict (ideological, economic, political, or social) were most important.Aaron Sheehan-Dean, "A Book for Every Perspective: Current Civil War and Reconstruction Textbooks," Civil War History (2005) 51#3 pp. 317–24
Southern arguments