States’ Rights and the Scope of Government

There’s a constant debate in this country about the appropriate size, scope and strength of government. This debate has raged since all the country was founded and shows no signs of letting up.

Conservatives think all forms of government should be smaller in scope. And while Liberals don’t necessarily want government to be larger just for the sake of being larger (few people will get elected by campaigning for more government), they think that in many cases it needs to be larger in order to adequately enforce justice and fairness.

By size and scope, we mean the “level” at which we are governed. Considering yourself as a resident of Sioux Falls, South Dakota, you’re subject to multiple levels of government, from smaller to larger:

1. The City of Sioux Falls
2. The County of Lincoln or Minnehaha
3. The State of South Dakota
4. The Federal Government of the United States

Each “level” has its own laws and rules. Sometimes they contradict each other, and there are rules for how those conflicts are resolved. In general, the larger government entity wins – county governments can overrule city governments, states can overrule counties, and the federal government of the United States can overrule everyone.

(You need to understand that word: federal. That means the government of the country. Federal means, roughly, “a group of things together,” or a federation. Whenever someone refers to “federal [anything],” they’re referring to that thing at the level of the country government, as opposed to state, county, or city.)

In the Constitution is something called the Supremacy Clause, which reads like this:

This Constitution […] shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

Essentially, the federal government wins all conflicts over laws. The federal government is “the supreme law of the land,” and if it has a law about something, that law supersedes anything at a lower level of government.

In complete opposition to this is the idea of “states’ rights.” States’ rights means that the states have powers that the federal government shouldn’t be allowed to interfere with. To this end, the Supremacy Clause is held in check by the Tenth Amendment to the Constitution, which says this:

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.

This says, essentially, that the federal government can only take powers specifically granted to it by the Constitution. Any powers outside of that belong to the states. This amendment was put in place to placate people who were afraid that a large federal government was just going to suck up all the power it could.

That this was included in the Bill of Rights (the first ten amendments to the Constitution) speaks volumes about how much the founding fathers of this country wrestled with the scope of government. When this country was being formed, one of the biggest debates was how strong the federal government should be, in opposition to the state governments. The two sides of the debate were the “federalists,” who wanted a strong central government, and the (awkwardly-named) “anti-federalists” that wanted a weaker central government.

(The Federalists wrote a series of articles in the late 1780s, while the current Constitution was under debate. These articles laid out the case for our current government in an attempt to persuade people to ratify it. Collectively, they are called The Federalist Papers and they likely constitute the greatest argument in favor of the current government of the United States. As a sidenote, there was an unorganized counter-effort called The Anti-Federalist Papers, which isn’t nearly as well-known.)

Hundreds of years later, we’re still wrestling with this question. We have never-ending arguments about whether or not the federal government possesses the power to do many of the things it does.

The Civil War was certainly about slavery, but it was also about states who claimed that the federal government had no right to tell them how to deal with slavery. More recently, a lot of the argument about Obamacare has centered largely on whether or not the federal government is allowed to enforce many of the laws and rules that program requires to operate. (States have implemented things very close to Obamacare, and no one complained. It became a big issue only when the federal government tried to do it.)

In fact, a lot of cases in front of the Supreme Court aren’t even about the merits of whether or not some law should or should not be enacted. Rather, they’re arguing about whether or not the federal government tried to take power away from the states in violation of the Tenth Amendment.

Why do we care about this? A Conservative would cite three reasons against larger government:

1. Larger government doesn’t always represent the governed
2. Larger government runs the risk of over-reaching and becoming oppressive
3. Larger government is inefficient

First, many people, especially conservatives, feel that government needs to be as “close” to the governed as possible, and larger government shouldn’t be allowed to indiscriminately rule over smaller government. The argument is that The City of Sioux Falls knows what a resident of Sioux Falls wants and needs more than the county, state, or country, so the city would be more effective in addressing those needs.

This is known as “subsidiarity”:

[…] a principle of social organization that holds that social and political issues should be dealt with at the most immediate (or local) level that is consistent with their resolution. […] a central authority should have a subsidiary function, performing only those tasks which cannot be performed at a more local level

Put another way, trying to enforce the same laws in Texas (very conservative) and Massachusetts (very liberal) leads to problems. You can’t blanket a hugely diverse country like ours with laws that will violate the conscience and ideals of large groups of people. Therefore, laws should take into account the beliefs and desires of the governed, and we are so different across this country that the only way to make sure this happens is to try to “drive down” government to the level closest to those subjected to its laws.

Second, the United States has a bad history with government. Remember that we broke away from England in the late 1700s, which was the very definition of an oppressive government. It ruled us from across the Atlantic (at a time when communication took months), extracted a lot of taxes, and didn’t do much in return. Therefore, fear and loathing of a large, detached government runs deep in this country. We’re quite different from the countries of Europe in this respect. They have a more trusting and welcoming opinion of government, where many people in this country are still influenced by the memory of our original relationship with the British.

This feeling is strong with conservatives. In his first inaugural address, Ronald Reagan famously said:

Government isn’t the solution to our problem; it is the problem.

These memories also play apart in America’s love affair with personal firearms. Many gun owners just don’t think the government should interfere, but a segment of this group also believes citizens have a responsibility to arm themselves in the event the federal government tries to seize too much power. Armed insurrection is a very real option for these people, and any attempt of the federal government to regulate their gun ownership is part of a sinister program to de-arm them in order to control them. This might seem far-fetched, but it’s just a small – and perhaps extreme – example of the underlying suspicion Americans generally have of their own government.

Also remember that the current Constitution wasn’t our first form of government. Originally, we created the Articles of Confederation, which effectively made states like little countries – they could print their own money, have treaties with other states, etc. The federal government had very little power over the states. This situation lasted for about a decade before we decided it was unworkable and moved to more tightly unify the country under the current Constitution. So, understand that the current configuration of the United Statesis an even larger government than some of the original founding fathers wanted.

Third, the United States is a big country, and scaling government laws and policies to 350 million people can be tough to do. This argument against larger government says that states can do things more efficiently than the federal government, and the federal government has a long history of screwing things up because it’s just too big.

Additionally, there is repetition and overlap are different levels. When Texas governor Rick Perry ran for president in 2012, one of his promised initiatives was to eliminate the federal Department of Education. Many people were horrified: “He doesn’t want to educate children?!” These people forgot that every state also has a Department of Education, and most every city has a school district. What Perry was trying to say is that education is something we can leave to the states, and not spend money at the federal level to manage it.

So, in the face of all that, why would we want larger government? Why would be want the federal government to step in and rule over states? A couple reasons:

1. Laws from one level of government to another are so different and “patchworked” that it causes inefficiency in commerce
2. Laws from one level of government violate some national/federal principle of human rights

An example of the former is dealing with rules that interfere with “interstate commerce,” which is when someone tries to conduct business across state lines. In 1959, for example, the Supreme Court ruled that Illinois couldn’t require a certain type of mudflap on trucks, since no other state did, and in doing this, it made it harder to do business since regular mudflaps were now illegal in Illinois and trucks often had to cross Illinois on their way to somewhere else. The Court said this was a hindrance of interstate commerce and the federal government could nullify this law, which is considered a landmark ruling against states rights and in favor of the federal government.

For the latter, consider gay rights. The Constitution (the federal law) prohibits discrimination on the basis of things like sex, religion, etc., but not on sexual orientation. This means it’s still within the states’ rights to allow employers to fire a gay employee just because they’re gay. Gay rights activists say this isn’t fair, and that this violates a national principle of fairness, and that all states should be simply required to protect gay employees. Therefore, many believe the federal government needs to exercise the Supremacy Clause and require all states to prohibit discrimination based on sexual orientation.

Issues of states’ rights and the size and scope of government are a never-ending tug-of-war in this country. Every year, dozens of cases make it to the appellate courts that ask for a ruling on whether or not a state or the federal government has the right to do something.

Should each state have broad powers to govern itself without interference? Or are we better served as a country by a strong central government which prevents states from deviating too far from a national standard of legislation? Are we fifty strong, individual states which happen to form a nation together? Or are we more of a single, unified nation which just happens to be divided into fifty states?

A defining principle of a political perspective is where you think the balance of power should lie between the different levels of government, and how strong you think our federal government should be.