States Rights

Index to posts in this series

One of the recurrent themes in The Nation That Never Was by Kermit Roosevelt is states rights, the right of the state to make many critical decisions about the rights and privileges of their residents. It seems like a strange way to run a country. How can we think of ourselves as a single nation when there are enormous variations in our rights? It seems contradictory to another recurrent theme of Roosevelt: the desire for unity.

The original English settlements in the US were organized under Charters from the Kings of England. They seem to have been drawn for various political reasons, that is reasons of English politics and money, and without regard to the interests of Indigenous Americans, or of the Colonists. There was no plan. Our original 13 colonies arrived on the scene just like the nations of the Middle East after the Sykes-Picot lines: as an exercise of British colonialism.

The Colonists were subjects of the English Crown, but each colony eventually established its own government. They created courts, legislatures, and administrative bodies usually under a written constitution. One of the big complaints in the Declaration of Independence is that the King is ignoring these institutions. As an example:

He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.

He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

By 1776, these governments were entrenched. After the Revolutionary War their big fear was that any central government would act the tyrant as had the English Kings. That led to the Articles of Confederation, which created a central government so weak it could not be a tyrant. The Articles were a total failure.

But the dominant vision remained. Colonial leaders wanted a federation of independent states, each with a strong government, and a national government barred from interfering with state governments. The Constitution preserves most of the powers of the individual states, and gave the rest to the central government. They got a central government strong enough to insure peace among these independent units, to ward off external attack, and to establish a suitable business environment. People’s rights as citizens of the United States were limited. Substantially all individual rights sprang from state citizenship.

Even within this context slavery was a paramount issue. The northern states were moving away from it, as was Europe. This was obviously a concern to the Southern states, and the Constitution contains provisions they demanded by the to alleviate those concerns.

Roosevelt says that supporting the demands of the slave states is just the first of many occasions in which unity takes priority over equality in our history. It’s one of the many times the interests and rights of Black people were sacrificed to the demands of unity.

The Constitution was an agreement among the Thirteen Colonies, not an agreement of “We the people of the United States” as the Preamble states. Theoretically the people agreed through their representatives in the state governments, but that seems just as unlikely as the assumptions underlying of social contract theory.

The Founders Constitution preserves the powers of the States except for specific matters, and that is confirmed by the Tenth Amendment:

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.

The powers reserved to the states include determining citizenship in the state, the right to vote, the right to serve on juries, almost all other political rights, and the right to establish and regulate slavery. This is the origin of the notion of states rights: that the state has the right to determine your rights.

Theoretically the Reconstruction Amendments changed the relations between the states and the Federal government. Citizenship in a state was conferred on all residents, and the states didn’t get to decide that question. The rights in the Constitution became enforceable against the states, although that took decades and has a twisted legal history. Voting was a right guaranteed by the federal government. States were prohibited from treating people differently on account of race. Congress was explicitly empowered to legislate these changes. But the Supreme Court refused to allow this to happen. In the Slaughter-House Cases and later cases, the Supreme Court narrowed and nearly neutered the Reconstructions Amendments and restored state power, enabling states to neutralize the supposed gains of Black citizens.

The pre-Civil War arrangement of power continues to the present. In a 2010 case, McDonald v. City Of Chicago, the revanchist Alito said that SCOTUS wouldn’t reexamine the Slaughter-House Cases.


Reading these cases makes me wonder what it means to be a US citizen, a point I have raised before, as here. If it’s true that your rights mostly come from the state where you live, the differences among the rights available to citizens can be enormous.

Two of the obvious examples currently are abortion and trans rights. Right-wing state legislators are passing laws to police these bodies directly and by terrifying medical professionals. Another obvious example is the right-wing assaults on education, including the ridiculous Florida laws against teaching subjects the right wing can’t face, like Black history and racism, LGBTQ rights, and critical thinking. This includes books like the two in this series and probably my posts on them.

I think the problem is much wider. The plain fact is that some states take better care of their citizens than others. The clearest example of this is life expectancy. Here’s a list of the states by life expectancy at birth using data from the years 2018-20. The top 5 states, all Blue (New Hampshire at 4 is purple), have a life expectancy of 79.4 years while the bottom 5, all bright Red, are at 72.9. If, as the Declaration claims, you have a right to life, you get nearly 9 more years of it in Hawaii than in Mississippi.

The same is true for education, public safety, and all other aspects of government that are primarily the responsibility of states. That inequality is the direct result of the notion of dual sovereignty that underlies cases like McDonald.

This problem was created by the Supreme Court. SCOTUS decisions about our rights as US citizens start with the Slaughter-House Cases and related cases that tightly narrow the Reconstruction Amendments. At about the same time SCOTUS decided to give rights to corporations just like people. SCOTUS dismantled the Voting Rights Act in direct violation of the Fourteenth and Fifteenth Amendments which give Congress the power to legislate. SCOTUS allows gerrymandering on the flimsiest pretexts and on the shadow docket.

Because whatever rights we have as citizens of the US are in the Constitution and federal laws, SCOTUS has the final say. SCOTUS has proven itself to be a screaming disaster for democracy, and for the supposed principles of the Founders of equality of life, liberty, and the pursuit of happiness.

20 replies
  1. Attygmgm says:

    Thanks to Ed for the post. To Ed’s states rights point, a biography of John Marshall related that when Virginia debated whether to ratify the Constitution they agreed to work though and debate it line by line, start to finish. Patrick Henry, who opposed the Constitution, began the debate by objecting to the first three words: “We the people.” He thought it should begin, “We the states.”

  2. gnight1 says:

    What a mess. I just read Shelby Foote’s Civil War. The South, as the Confederate States of America, had multiple problems. One was that certain states in the confederation were so adamantly against the central government of the CSA, that they would rather die or lose than comply with an edict from Jefferson Davis, their President.

    The only way for us to come together as the USA was to give states equal representation in the U. S. Senate. Not only that, but it seems that the constitution specified the sovereignty of states by expressly delineating few explicit powers to the feds while those rights to the states were numerous and open ended. Over time, the feds have gained more power. And states and people continue to push back.

    In that vein, some would rather destroy or protect their surf (ie grift) than do good for other people. There must be some way out of here…

    [Welcome back to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Thanks. /~Rayne]

  3. earlofhuntingdon says:

    Thanks, Ed. Great reading. I was struck by the rare direct statement about the Supreme Court’s radical majority’s abuse of power, in direct contravention of the Constitution: it is a “screaming disaster” for individual rights – and the law. Understated, as usual.

  4. Datnotdat says:

    You say “It’s one of the many times the interests of Black people were sacrificed to the demands of unity.” I think you can make your point clearer by changing it to “It’s one of the many times the interests of Black people were sacrificed to the demands of unity for everyone else,” with “for everyone else” added. I think the “everyone else” is important. It offers a suggestion of how someone (e.g. OJ Simpson?) can enroll in the white supremacy project once they no longer conceive of themselves as “Black.” I also think this underscores the point that Erik Loomis (Lawyers, Guns & Money) has made repeatedly, that the coming demographic change is not “majority minority,” but rather a shifting definition of “White.”

  5. Chetnolian says:

    Ed’s discussion demonstrates that not all wrongs end badly. Whatever may be wrong with the UK, and goodness me there is lots, the fact that “judges [are] dependent on his Will alone” has worked out quite well for us.

    As the monarch’s position has become increasingly ceremonial, the concept that judges are answerable solely to the monarch has survived, and is real. Our judges may not be perfect, whose are?. But they are very independent of the passing fads of democracy. Study the unanimous decision of the Supreme Court that then Prime Minister Boris Johnson had illegally prorogued Parliament to force his form of Brexit through. Our judges cannot ever make law, they can only interpret it. And it is unimaginable that they would ever overturn precedent as the US Supreme Court has over Roe vs Wade. Having said that I cannot suggest they would have created the decision in Roe vs Wade in the first place. That was, and probably should be, down to lawmakers.

  6. jsrtheta says:

    Part of the problem is the framing, because states don’t have rights, and never did. States, like the federal government, have powers and prerogatives, not rights.

    This is not a trivial point, nor a mere matter of semantics. “Rights talk” has been at best a nuisance and at worst a tool to defeat enforcement of the rights we have decided people should have. Perhaps we’re skittish of recognizing powers and prerogatives. Whether that is a laudable trait or not, is open to debate. But to labor under a delusion is never a good choice.

    • earlofhuntingdon says:

      Semantics, especially given the ignorance-inducing politics of the right, are always worth talking about. Nor is this a site, given its creator, that takes semantics lightly.

      Your proposed distinction between “powers and prerogatives” and “rights” is simplistic, starting with your desired distinction between prerogative and right. It distracts from whatever point you are trying to make.

      • cruxdaemon says:

        I get what you are saying here, but jsrtheta is on to something worth exploring. The right is very very good at language and message discipline. Of course that’s helped by an agenda-setting propaganda network that gets everyone on message for any controversy.

        I’m a strong believer that words matter. Rights feel inherent and powers feel delegated/malleable. It’s worth engaging whether or not saying “states rights” implies something inherent and immutable. After all, it’s an phrase that was used to backfill a justification for civil war. Yet we accept the phrase and argue about the boundaries. The phrase itself moves the Overton window!

        [Thanks for updating your username to meet the 8 letter minimum. /~Rayne]

        • earlofhuntingdon says:

          As I said, the attempted distinction here is sideshow.

          The 10th Amendment’s use of powers is not consistent with yours: “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.”

          The rights of the states – and the people (an aspiration) – are both inherent and mutable. That is, they originate with the States, and can be reserved by them or delegated to the federal government via the Constitution to which they have agreed. They can also be taken from the States, or their use prohibited, by that same Constitution.

  7. wasD4v1d says:

    When asked what ‘originalism’ means, my shorthand answer is that the last amendment the supreme court radicals will recognize is the 10th. (No two term Republican president has challenged the 22d, the anti-FDR amendment.)

  8. P J Evans says:

    “States’ rights” is conservative doublespeak for being allowed to treat everyone who isn’t obviously a cis/het conservative white male (and probably rich) as second or third class citizens. That’s all it’s ever been.

    • Ed Walker says:

      I think you read the lines I took out of the first paragraph. That’s how I understood it for years, and I still want it to be true.

      • P J Evans says:

        I’ve read a lot of stuff over the years, and I did pay attention in my US history class, oh so many years ago. It’s hard to not notice the pattern, when they do it every time.

  9. HardyWeinberg3 says:

    Where I work, it is clear that state’s rights are the rights of states to control their residents however they want/however they can get away with. I work for a group of Indian Tribes and the lawsuit enforcing their Treaties is US v state; the state said it’s asserting its rights to ignore the Treaties it didn’t even sign, the feds say (and won in court, and upheld at the supreme court) that the state was violating the treaty between sovereigns (so the states are not parties at all) and they are not allowed to do that. The states are always the bad guy pushing for more control over residents than the constitution allows. And then there are some theocrats claiming their religion is infringed by people not being required to abide by its tenets, and somehow they have captured scotus

  10. Kenneth Melvin says:

    Well Done.

    [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. This is your second user name; you have 50 comments published here as “ken melvin.” Thanks. /~Rayne]

  11. Franktoo says:

    Perhaps inspired by Kermit Roosevelt’s book, the National Constitution Center was involved a debate about whether we should “break up with the Founders, the subject on an earlier post by Ed.

    During an evening keynote program, five great constitutional experts were asked an important question: Should we break up with the founders?

    “In other words, should we still look to the drafters of the Declaration and Constitution—from Thomas Jefferson to James Madison to George Washington—despite their moral and philosophical hypocrisies, such as ownership of enslaved people, or do they still have something to teach us? And was the original Constitution a flawed but meaningful attempt to realize the ideals of the Declaration of Independence, one made more perfect by Reconstruction—or is the original Constitution so fatally flawed by the original sin of slavery that it does not deserve respect?”

    You can find the podcast at: The NCC is chartered to educate the public about the Constitution on a non-partisan basis and invariably has well-informed, respectful discussions. My biggest criticism is that our Founders weren’t responsible for introducing slavery into the 13 colonies; they were merely the first “Americans” forced to deal with the problem. In his first draft of the Declaration, Jefferson lambasted the King for the fact that he grew up in a slave-owning household and society. In the case of the Carolinas, Jefferson may be right because the laws governing slavery there were written by John Locke for the Eight “Proprietors” awarded the colony by the King for their services. Land is much more valuable with men to work it and most Europeans who crossed the Atlantic soon bought plentiful land of their own. However, anyone with much more land than he could work alone and the money to purchase slaves had a financial incentive to promote slavery.

  12. Greg Hunter says:

    I did not study the law as I was a science guy, but I have come to realize that I only get to apply my “science” when it comports with the laws that were written by the Feds and then the States. I have read the comments that proceed mine and I see the issues that have arisen when we focus on what we have been told about the Constitution and the Bill of Rights, instead of reviewing it in whole cloth.

    I think one needs to look at how the Bill of Rights was presented and instead of parsing each of the sentences in the documents and then allowing others to tell me what it means. I grew up a Baptist and as such I get to interpret the Bible, just as the Church does for those of the Catholic faith. When I read the Bill of Rights, I see a Judicial Philosophy that is different from what I have been told over my lifetime, just like when I read the Bible.

    When I look at the Post Office, the 3rd Amendment and the 9th Amendment, I see a far more expansive view of what “Rights” should be decided and enforced at the Federal level. For instance, in my view of our documents it seems pretty clear that Roe was wrongly decided but an attempt was made to further the idea of the 9th Amendment as well as support the Commerce Clause.

    It is clear to me that those arguing in Roe that an individual right to decide whether to present a citizen to our Republic all through the natural gestation period, which means 9 months. That was the travesty of the SCOTUS at the time, they let some BS Judicial philosophy interfere with a plain reading of the Founders intent. The Government has the right to invade your home only after a citizen has broken the laws established in the public space or against one of its citizens. Roe allowed the government into an individual’s life after 3 month gestation was the travesty as it is clearly not Constitutional.

    It is pretty clear that using the 10th Amendment argument in the Dobb’s decision to override the clear intent of Amendments 1-9 has had a disastrous negative impact on our labor force and therefore American Commerce.

    We need to have a different conversation about the Constitution instead of the ones “they” want us to have…..

  13. Clare Kelly says:

    Thank you for this substantial essay.

    Through this context, I’ve felt powerless while observing some states adopting versions of The Fugitive Slave Act (of 1850), in regard to the basic human right to Reproductive Autonomy, among others.

    Ed Walker wrote:
    “Two of the obvious examples currently are abortion and trans rights. Right-wing state legislators are passing laws to police these bodies directly and by terrifying medical professionals. Another obvious example is the right-wing assaults on education, including the ridiculous Florida laws against teaching subjects the right wing can’t face, like Black history and racism, LGBTQ rights, and critical thinking“

    I can only find some solace, however aspirational, in:
    “…or to the people”.

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