Federalism versus state sovereignty

In our post on sovereignty, we took the position that, under the Constitutional order, there is no American sovereign. Voters have inalienable rights,  which may be broadly described as spheres of life into which intrusion by government is severely circumscribed. Rights are not quite absolute; your right to free exercise of religion, for example, does not include a right to sacrifice virgins or behead infidels. Likewise, freedom of speech has not been held to protect demonstrably fraudulent or defamatory speech. But rights are to be interpreted broadly and the few exceptions to rights are to be kept extremely narrow.

It was in this spirit that the Supreme Court weakened the strict liability for defamatory speech of the traditional common law, which held that damages could be recovered for false statements that materially harmed a person’s reputation regardless of whether the person making the statements believed them to be true. That is still the standard for private individuals; but for public figures, the Court ruled in Sullivan vs. New York Times in 1964 that the plaintiff had to show actual malice, defined as either the publication of falsehoods in the knowledge that they were false or with reckless disregard for whether they were true. There are reasons to criticize this precedent, including that it created artificial categories of persons (private versus public figures) enjoying a different level of protection under the law, and that it created something of a free-for-all for newspapers to publish allegations that had not been thoroughly confirmed. There is much to be said for the ethic that you do not say nasty things about people unless you are very sure you have your facts straight. But the precedent does illustrate how sacrosanct rights are under the Constitutional system.

Generally speaking, facial government infringements on fundamental rights are subject to strict scrutiny. The government must show that the law creating the infringement addresses a compelling government interest; that it is narrowly tailored to achieve its compelling purpose; and that it does so in the least restrictive manner.  Thus, a law against painting graffiti on public property is Constitutional, even though it facially restricts a form of speech, because the government has a compelling interest in protecting public property from being defaced; the ban is narrowly tailored to its purpose of preventing defacement of public property; and it does so in the least restrictive manner one can reasonably imagine. Likewise, a law banning setting fires near a fuel storage tank farm for reasons of public safety is Constitutional, even if it is enforced against someone burning a U.S. flag as a political statement, so long as the law is also enforced against someone burning a Nazi flag or simply lighting a cigarette. Strict scrutiny has been  the standard for evaluating infringements on most rights mentioned in the Bill of Rights for a long time. It is becoming the standard for cases involving the Second Amendment right to bear arms, which long lagged under the view, rejected in District of Columbia vs. Heller, this did not refer to an individual right. It may yet come to be applied to the free exercise of religion.

We argued both in the sovereignty post and in our post on the Preamble that states surrendered their sovereignty under the new Constitution. However, just as individual Americans are not sovereign but nonetheless have certain inalienable rights, so the States are not sovereign but have certain states’ rights — spheres of public life which cannot normally be infringed by the federal government. “States’ rights” has become a pejorative because of its abuse by slaveholders and their descendants prior to the Civil War and in the era of Jim Crow. But we are reminded of how William F. Buckley criticized those who focused on means rather than ends:

… saying that the man who pushes an old lady into the path of a hurtling bus is not to be distinguished from the man who pushes an old lady out of the path of a hurtling bus: on the grounds that, after all, in both cases someone is pushing old ladies around.

Context matters. The states of the slaveholding South were asserting a right of secession that nowhere exists in the Constitution and is contradicted by the history and wording both of that document and of the Articles of Confederation that preceded it. The states of the Jim Crowe South were asserting a right to segregate their citizens by race that was incompatible with the Reconstruction Amendments to the Constitution. It was not even that the states were asserting states’ rights in defense of awful practices; what they were asserting were not actually among the rights held by states. In making that assertion, as is so often the case in politics, they damaged the real rights that states actually hold.

The most important protection of states’ rights is the 10th Amendment, which declares that Congress acts unconstitutionally any time it tries to exercise a power not explicitly granted it elsewhere in the Constitution. Laws have been struck down by the courts on this basis (though, in our opinion, not nearly as often as they should be.) We have objections to some portions of the Civil Rights Act; but the prohibitions on legal segregation were necessary, good, laudable, and clearly within Congress’ authority under the Reconstruction amendments. No rights of any state were violated.

But it is worth revisiting the explicit guarantees given the states in the Constitution:

• Every state has a right to equal representation in the Senate. This right is so fundamental that it cannot be altered even by the ordinary amendment process.
• Each state has the right to decide how it will choose its electors for the Presidency.
• Each state is entitled to at least one Representative in the House, and otherwise to proportional representation in the House.
• Each state governor has the right to call elections to fill vacancies in the House.
• Each state has the right to export articles free of duties or taxes.
• Each state has the right to nonpreferential treatment of its ports.
• Each state has the right to hear its have its suit against another State heard by the Supreme Court. (This has been called into question in some of the rulings on Trump’s suits contesting the recent election, but given the extraordinary circumstances, we doubt this has much power as a precedent.)
•  Each state has the right to expect full faith and credit to be given to its public records.
• Each state has the right to demand extradition of criminal suspects who have fled to another state.
• Each state has the right to its territorial integrity; Congress cannot carve new states out of existing states without their consent.
• Each state has the right to a republican form of government, which right is enforceable by the federal government. Each state has the right to protection by the federal government from invasion or insurrection.
• Each state has immunity to being sued by citizens of another state or a foreign country except under narrow circumstances.
• Each state may prohibit importation of intoxicating liquors.

No doubt some readers find some of these provisions quaint. As we have already asserted, the chief protection of the rights of the states is the Tenth Amendment, and the chief threat to their rights the disregard Congress and the judiciary have shown for the spirit and letter of the Tenth Amendment.