What Is States’ Rights All About?

What about states’ rights?!

Southern Chivalry
By John L. Magee (c.1820–c.1870) (Lithograph reproduced here) [Public domain], via Wikimedia Commons
Note: This post is a lead-up to an upcoming post about states’ rights for my Arguments That Give Me Pause series. In doing the research, I realized a separate post would be needed to fully explain how the debate arose in the United States and to decide which areas I should be focusing on.

Consider this a fact sheet.

Table of Contents

The Basic Idea Behind States’ Rights

The Framing of the U.S. Constitution

Early Challenges to the Constitution

Slavery and the Lead-Up to the Civil War

Reconstruction and The New Deal

The Civil Rights Movement

From Reagan Onward

The Role of the Supreme Court

Works Cited

The Basic Idea Behind States’ Rights

According to West’s Encyclopedia of American Law, the states’ rights position is “a doctrine and strategy in which the rights of the individual states are protected by the U.S. Constitution from interference by the federal government.”

According to an article on HistoryNet, states’ rights is:

States’ rights is a term used to describe the ongoing struggle over political power in the United States between the federal government and individual states as broadly outlined in the Tenth Amendment and whether the USA is a single entity or an amalgamation of independent nations. In modern times the term States Rights has also come to symbolize the opposition of some states to federal mandated laws against racial segregation and discrimination.

In short, proponents of states’ right say they want to assure the autonomy of states and want to limit the powers of the federal government.

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The Framing of the U.S. Constitution

Although the United States was formed with the Declaration of Independence, the 13 original colonies were, for the most part, a loose collection of states with their own governments.

Ultimately, the states recognized they would need a centralized government should they win the Revolutionary War (HistoryNet). To that end, the Articles of Confederation were drafted.

The Articles of Confederation

The articles served as the first Constitution of the United States. It was adopted by the Continental Congress on November 15, 1777; all 13 states ratified it on March 1, 1781.

What resulted was a loose, week union. At a time, the young nation was seen as weak, especially after the response to Shay’s Rebellion in Massachusetts.

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Constitutional Convention

There was a need for stronger Constitution, which sought to create “a more perfect Union.” With it came a more powerful centralized government with broad powers to collect taxes, call up military forces, make international treaties, regulate interstate trade, and to affect international trade, among other things.

During the Constitutional Convention in 1787, the states’ rights proponents among the Framers were concerned that “a powerful, consolidated national government would run roughshod over the states.” Ultimately, the Tenth Amendment to the Constitution was added in order to give states autonomy where powers were not exclusively designated to the federal government.

The U.S. Constitution recognized both state and federal powers. Both levels of government have mutually exclusive and concurrent powers (Encyclopedia.com).

Pertinent Amendments

In total, there are about 5 Amendments to the Constitution that pertain to the issue of states’ right.

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The Ninth Amendment

Here is the original text:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

This amendment was put in the Bill of Rights in order to protect the rights of Americans not expressly named in the Constitution. However, there are a number of rights left out of the Constitution, like: the right to vote, the right to privacy, the right to marry, etc. Although the right to vote has been addressed in subsequent amendments and laws, the other rights have often played a role in the debate over states’ rights.

I should note here that among the framers came two groups: The Federalists and Anti-Federalists. Their disagreements lead to the creation the Bill of Rights; a number of states refused to ratify the Constitution without them. In particular, the Anti-Federalist concern about human rights could clearly be seen in this amendment (“9th Amendment”).

From these ideological groups, the nation’s first political parties emerged. Our first Secretary of the Treasury, Alexander Hamilton (the guy on the $10 bill), was a prominent Federalist. Thomas Jefferson, our eventual 3rd president and 2nd vice president (due to the election rules originally established by the Constitution), was a Democratic-Republican.

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The Tenth Amendment

The Bill of Rights was ratified on December 15, 1791 when the 10th was accepted by the States.

Here is the text:

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 Tenth Amendment is so important because this is where the rights of the states are assured. At the same time, it reinforces the powers of the federal government (“10th Amendment”).

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The Thirteenth Amendment

This Amendment, as well as the next two, are known as the Reconstruction Amendments. Ratified on December 6, 1965, the Thirteenth Amendment officially outlawed slavery within the United States.

Slavery was the principal reason for the Civil War. Most of the Southern states’ economies were built around slavery (“13th Amendment”).

Here is the text:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

It should be noted how there is an exception for prisoners.

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The Fourteenth Amendment

The Fourteenth Amendment, which was ratified on July 9, 1868, has four main sections to it (with the fifth governing Congress’ role in enforcing the Amendment. The first section expands basic rights to minorities by granting all persons born in the United States citizenship. The second gives all American men (who have reached the age of 21) the right to vote.

Here is the text:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article

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The Fifteenth Amendment

This amendment (ratified on February 26, 1869) barred any government entity within the United States from infringing upon a person’s right to vote based on race, color, or former position of servitude (i.e., slavery).

Here’s the text:

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

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Early Challenges to the Constitution

In 1798, Thomas Jefferson and James Madison proposed the Virginia and Kentucky resolves in the hopes of clarifying how and when states could check federal power. Earlier that year, the Alien Enemies and Sedition Acts (1 Stat. 570 and 1 Stat. 596) both limited a number of civil liberties. Jefferson wanted states to be able to nullify federal laws passed by Congress that the states found to be unconstitutional (Encyclopedia.com).

The Alien and Sedition Acts were passed by the Federalists in 1798 in order to deal with the French foreign threat at the time. The Federalists under President John Adams also wanted to undercut the Anti-Federalists’ support of France during its war with Great Britain (“Thomas Jefferson”).

Under the Alien Act, immigrants had fewer rights. Hostile foreigners could be deported. Immigrants had to be U.S. residents for 14 years before they could vote; previously, they only had to wait 5 years.

Under the Sedition act, no one was allowed to “write, print, utter, or publish . . . any false, scandalous and malicious writing” against the government. Anyone who defied the law could be fined or imprisoned. Due to this law, 20 Republican editors were arrested.

Southern States weren’t the only ones that wanted to secede from the Union. During the War of 1812, Massachusetts was concerned that the war threatened its trade with Great Britain.

Southern states had economic reasons to oppose the Union outside of slavery. For instance, there were tariffs which benefited Northern States while hurting Southern States. By 1832, South Carolina passed the Nullification ordinances in response to the tariffs. It first threatened to secede before a deal was worked out.

But it was ultimately slavery became the main driving force behind the states’ right doctrine.

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Slavery and the Lead-Up to the Civil War

The issue of states’ rights arose during the first half of the nineteenth century due to slavery. Additionally, as the United States expanded toward the Pacific Ocean, the question of whether or not to permit slavery in the newer territories arose.

Before, slavery had been permitted in all states (HistoryNet). By the early 1820’s Northern leaders also participated in the debate over states’ rights, and it often involved the topic of slavery (Encyclopedia.com). Northern states became the first to reject the institution. As Northern abolitionists gained influence, they used their pulpit to question the ethical legitimacy and general efficacy of slavery.

Northern states violated slave fugitive acts by harboring escaped slaves. And Northern mobs attacked slave owners who tried to retrieve their slaves (HistoryNet).

A number of states passed personal liberty laws in defiance of the federal fugitive slave law, but those were stuck down by the Supreme Court. Northern states would pass similar personal liberty laws after the Fugitive Slave Act of 1850 was passed.

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Calhoun and Simmering Tensions

In the nineteenth century, John C. Calhoun became a prominent figure in the debate about states’ rights. Through his writings on the matter, he also argued that states should be able to nullify federal laws, but under the condition those laws interfered with state and local interests. Calhoun went even further and argued that states could secede from the Union if it continually established laws and policies that threatened the long-term interests of the states and local jurisdictions.

Calhoun’s followers eventually tied his arguments to slavery, which made up most of the economy in the Southern states (Encyclopedia.com).

Eventually, the new Republican Party swept elections in 1859. It was founded on principles that included the abolition of slavery. Many in the South saw that as a sign of war.

Among the Republicans was Charles Sumner (the man depicted in the lithograph, being beaten by Preston Brooks). He was a staunch abolitionist who also wanted to grant blacks full civil rights (“Charles Sumner”).

By 1860, Southern states seceded from the Union in order to form the Confederate States of America. Even if a loose partnership, the Confederate States served to protect those states main interests.

After the North won the Civil War, Congress passed the fourteenth and fifteenth amendments in order to protect the basic rights of all U.S. citizens (Encyclopedia.com).

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From Reconstruction to The New Deal

From the 1870’s to 1930’s, economic issues shaped the debate over states’ rights. Politically, conservatives took the position of “states’ rights” in the context of limiting the power of the federal government.

The New Deal had increased the size and scope of the federal government. The commerce clause, which granted the federal government the power to regulate interstate commerce, was in regular usage (Encyclopedia.com). And many new government agencies were created in order to direct the use of taxpayer funds in hopes of stimulating the economy.

Even more power was taken by the federal government by the end of World War II. Much of the country’s production was steered toward the war effort.

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The Civil Rights Movement

Racism and segregation (once again) shaped the debate beginning in the 1950’s.

Proponents of states’ rights were opposed to it and the power of the U.S. government to tax for the general welfare of citizens.

During the 1948 election, Democrat Harry S. Truman ran on a platform that included an aggressive civil rights policy (Encyclopedia.com).

The platform Harry S Truman ran on included:

  • Federal anti-lynching legislation.
  • The abolishment of poll taxes (which kept blacks from participating) in federal elections.
  • The desegregation of military services.
  • The creation of a permanent Fair Employment Practices Committee to combat employment discrimination.

In response, Southern voters broke off from the Democratic Party. The “Dixiecrats” formed and joined the States Rights Party that same year. The Dixiecrats bemoaned the ideological shift of the Democratic Party from a conservative party (a la the anti-federalists of Thomas Jefferson) to one that was becoming more liberal.

The Dixiecrats were led by Strom Thurmond from South Carolina, who served as that party’s presidential candidate in 1948. Mississippi Gov. Fielding L. Wright ran as his vice-president (HistoryNet).

Between the 1950’s and 1960’s, Segregationists worked to limit opportunities for non-whites in public education, housing, the access to public facilities, and employment.

In the 1960’s, state’s rights proponents stiffly opposed welfare and subsidy programs, arguing that the increased federal funds would lead to greater federal government control (Encyclopedia.com).

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From Reagan Onward

Ronald Reagan’s Administration advocated for a limited role for the federal government. It granted states more power to direct their social programs and other policy initiatives. Other presidents would continue this policy to some extent.

By the early 2000’s, it was clear that both major political parties pushed for policies that preempted state authority, especially in the banking sector (Encyclopedia.com).

Here are a few examples:


The No Child Left Behind Act of 2001 is seen as an overarching law. Under NCLB, schools who failed to bring up standardized test scores to an acceptable level after 4 years would lose funding and children would be able to go to higher-performing schools.


In 2008, Congress passed the Troubled Asset Relief Program bill, granting failing “Too-Big-to-Fail” banks. Over $700 billion in taxpayer money was given to the banks to cover their shortfalls.

Environmental Regulations

The government has the power to declare lands national monuments for ecological reasons or what is deemed to be in the public interest. It can also claim ownership to lands in public use under the Federal Land Policy Management Act of 1976.

State legislatures have butt heads with the federal government because the states want to be able to profit off the lands and mine resources from them. But those who make use of the federal land as it is (like hikers, and hunters with permits) would prefer those lands stay under federal control (Frazzini).

Health Care

In 2011, Congress barely passed the Affordable Care Act, which expanded Medicare and made it illegal for health-insurance companies to deny coverage to people with pre-existing conditions. Some states argued the law interfered with state powers, although states in need were given funds under the program.

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The Role of the Supreme Court

Until the 1930’s, the Tenth and Fourteenth Amendments were frequently used in Supreme Court decisions to check the powers of the states and federal government. This was likened to a laissez-faire capitalist approach.

The Tenth Amendment was used to strike down federal laws that the Court saw as impeding states’ interests. (These laws included pieces of President Franklin Delano Roosevelt’s New Deal legislation.)

The Fourteenth Amendment was invoked when states tried to regulate the businesses, the economy, and labor laws. In particular, the Court ruled against state efforts to restrict unions and stifle dissent (Encyclopedia.com).

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Important Supreme Court Cases

The following cases pertain to the scope of the federal law with respect to state and local governments.

Chisholm v. Georgia (1790)

This was one of the first challenges to the states’ rights doctrine.

In that case, a South Carolina businessman sued the state of Georgia in order to be reimbursed for the supplies provided to the state. The state argued it could not be sued because it was a sovereign body, but the Supreme Court ruled that the conduct of the states was subject to judicial review.

The case led to the passage of the Eleventh Amendment (Encyclopedia.com).

Prigg v. Pennsylvania (1842)

The Supreme Court struck down Northern states’ personal liberty laws, which defied federal fugitive slave laws (Encyclopedia.com).

Gitlow v. New York (1925)

The Court ruled that both the states and federal government most adhere to the Bill of Rights. The 14th Amendment was invoked (HistoryNet).

Additionally, in the 7-2 decision, the majority found that a state could restrict a person’s right to free speech due to “dangerous tendency” test. One person’s speech might not present a clear and present danger to the public, but the type of speech might have a tendency to result in dangerous action. On those grounds, legislatures might be free to block some forms of speech (“Gitlow”).

Brown v. Board of Education of Topeka, Kansas (1954)

In a unanimous decision, The Supreme Court ruled that segregated public schools were unconstitutional. In a string of four cases, the Supreme Court opposed the “separate by equal” doctrine set forth in Plessy v. Ferguson decision because the segregated schools were inherently unequal, violation of the equal protection clause of the Fourteenth Amendment (“Brown”).

National League of Cities v. Usery (1976)

The Court ruled that by extending federal minimum wage and overtime rules to state and local governments, the U.S. government overstepped its bounds.

Garcia v. San Antonio Metropolitan Transit Authority (1985)

The Court’s decision overruled the National League of Cities v. Usery case.

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Works Cited

“9th Amendment to the Constitution.” Totally History. Web. Retrieved 10 Jan 2017. <http://totallyhistory.com/9th-amendment-to-the-constitution/>.

“10th Amendment to the Constitution.” Totally History. Web. Retrieved 10 Jan 2017. <http://totallyhistory.com/10th-amendment-to-the-constitution/>.

13th Amendment to the Constitution.” Totally History. Web. Retrieved 10 Jan 2017. <http://totallyhistory.com/13th-amendment-to-the-constitution/>.

“14th Amendment to the Constitution.” Totally History. Web. Retrieved 10 Jan 2017. <http://totallyhistory.com/14th-amendment-to-the-constitution/>.

“15th Amendment to the Constitution.” Totally History. Web. Retrieved 10 Jan 2017. <http://totallyhistory.com/15th-amendment-to-the-constitution/>.

“The Alien and Sedition Acts.” ushistory.org. Web. Retrieved 10 Jan 2017. <http://www.ushistory.org/us/19e.asp>.

“Brown v. Board of Education of Topeka (1).” Oyez. Chicago-Kent College of Law at Illinois Tech, n.d. Web. Retrieved Jan 10, 2017. <https://www.oyez.org/cases/1940-1955/347us483>

History.com Staff. “Charles Sumner.” History.com. A+E Networks. 2009. Web. Retrieved 10 Jan 2017. <http://www.history.com/topics/charles-sumner>.

Frazzini, Kevin. “As Western states renew efforts to take control of federal public lands, a bipartisan path emerges.” National Conference of State Legislatures. 4 Nov 2015. Web. <http://www.ncsl.org/research/environment-and-natural-resources/this-land-is-whose-land.aspx>.

“Gitlow v. New York.” Oyez. Chicago-Kent College of Law at Illinois Tech, n.d. Web. Retrieved Jan 10, 2017. <https://www.oyez.org/cases/1900-1940/268us652>

Researchers. “The Articles of Confederation: Primary Documents in American History.” The Library of Congress. 31 Oct 2016. Web. Retrieved 10 Jan 2017. Web. <http://www.loc.gov/rr/program/bib/ourdocs/articles.html>.

“States’ Rights.” Encyclopedia.com. West’s Encyclopedia of American Law; The Gale Group, Inc. Copyright 2005. Web. Retrieved 9 Jan 2017. <http://www.encyclopedia.com/topic/states_rights.aspx>.

“States’ Rights & The Civil War.” HistoryNet. Web. Retrieved 9 Jan 2017. <http://www.historynet.com/states-rights-civil-war>.

“Thomas Jefferson.” PBS. 2000. Web Retrieved 10 Jan 2017. Web. <http://www.pbs.org/wgbh/amex/duel/peopleevents/pande07.html>.


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