Ben Shapiro / April 15, 2009

Whatever Happened to States’ Rights?

On Tuesday, Texas Gov. Rick Perry issued a statement in support of a state resolution supporting states’ rights under the 10th Amendment to the U.S. Constitution. “I believe that our federal government has become oppressive in its size, its intrusion into the lives of our citizens, and its interference with the affairs of our state,” Perry stated. “I believe that returning to the letter and spirit of the U.S. Constitution and its essential 10th Amendment will free our state from undue regulations, and ultimately strengthen our union.”

Perry’s statement is a clarion call for more local sovereignty, for less command-and-control from above. But is it too late for states to regain their status in the great struggle for policymaking power implemented by the Constitution?

The US Constitution contemplates constant friction between the states and the federal government. The states had to ratify the creation of the federal government, so it is no wonder that they chose to restrict the power of the federal government and to maintain their own. In 1798, Thomas Jefferson and James Madison joined to write the Kentucky and Virginia Resolutions, which declared that “the powers of the federal government … (result) from the compact, to which the states are parties … 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.”

In simpler terms, the states, according to the framers, were duty-bound to resist action by the federal government superseding its allotted authority under the Constitution. To that end, the states reserved to themselves the chief authority to tax, to raise militias, and to carry out the day-to-day activities required by government.

It was a brilliant structure. The federal government could not redistribute money and resources from taxpayers of one state to taxpayers of another without running up against resistance from the states, seeking to safeguard their own sovereignty. The federal government could not take over the states’ interest in the education, welfare and protection of their own citizens – and so the federal government remained small. The states’ role was simple: they were to be “laboratories of democracy” run by local citizens, in the words of U.S. Supreme Court Justice Louis Brandeis.

Sadly, states misused their authority. Certain states claimed that it was within their power to sanction slavery. And so the laboratories of democracy became torture chambers of democracy, with majorities oppressing minorities.

The federal response to the slavery question was quick and right – President Abraham Lincoln’s Civil War restored for all time the founding promises of the Declaration of Independence. Despite the Civil War, however, the legacy of Jim Crow further eroded the moral authority of states’ rights. And the federal government, wielding the ethical imperatives of both racial equality, stepped in. States’ rights advocates were forever branded as bigoted Orval Faubus types, standing in the doorways of segregated schoolhouses.

And so the federal government took control of abortion policy. It took control of tax policy, blaming the states for “regressive” laissez-faire doctrine. It took control of education and health care. And states, eager for federal cash, largely acceded in the shift toward federal power.

Now states are surprised to find that their ability to resist federal directives has been all but extinguished. They are surprised that they are no longer able to set their own standards regarding social, economic, or criminal policy. They are surprised that through a combination of moral blindness and drooling greed, they surrendered their role in the constitutional system.

It is not too late. The first step toward the reinstitution of local government as a force in American life must begin with resistance to the total federalization of the economy. States can start by taking the moral high ground and refusing federal “stimulus” dollars.

If they do not, federal government will, once and for all, become a government of unlimited powers. And the laboratories of democracy will be closed down once and for all in the name of nationalized leftism.


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