Dual sovereignty, States' Rights
and the Constitution
12/8/99
By Bryan Zepp Jamieson
The neo-Confederates in the Republican party like to prattle on about States' Rights a lot. Under this doctrine, the powers of the Federal Government are severely limited. Federal government, they claim, is limited in its powers only to those prerogatives explicitly permitted by the Constitution, and those aren't much. Some of the more extreme elements claim that the 1st amendment, for example, applies to Congress only, and that any other legislative body at the state level is free to legislate in any way they see fit on such matters as freedom of speech and religion and association. This would include outlawing those rights.
The neo-Cons like to mention the 9th and 10th amendments quite a bit in support of this viewpoint. They state, in a nutshell, that rights not enumerated in the constitution shall not be abridged (except the right of privacy, apparently - that's different) and that powers not granted to the federal government default to the people and the states, respectively.
States' Rights is an old debate, one that goes back to 1774. The original charter for the new-born country, the Articles of Confederation, set up a loose confederacy of states that, among other things, permitted states to erect trade barriers against one another and to withdraw from the Union at will. Within five years, it became clear that this arrangement was not working, and a convention to devise a constitution that centralized power was convened. Our present Constitution was the result of this. There was strong sentiment against a strong central government, particularly in the South, and it has been a recurring issue, through the great Nullification debates of the 1830s, and the Civil War, and the evocation of States' Rights during the Civil Rights era.
There's an even more bizarre doctrine circulating among the far right known as "dual sovereignty" This notion takes the fact that both the Feds and States have laws, and propose that any entity that has laws is sovereign, and thus the Feds and States have "dual sovereignty" and are, in some sense, equals.
The best way to show how States stand in relation to the Feds is to look at the relationship of the laws. That both can have separate laws governing the same crimes is indisputable. Going back to the days of Taft, the courts have ruled that persecution under state and federal laws separately does not constitute double jeopardy. This would seem to support the notion that there is dual sovereignty. (But it didn't stop them from yowling about the unfairness of it all when the Feds filed charges against those LA cops for violation of Rodney King's civil rights. That's different).
Do state laws have authority over federal laws? The answer is no. One of the better known examples that states may not negate, nullify, or subordinate federal laws came in "US Term Limits vs. Thornton", in 1995, when the Supreme Court ruled that states may not impose term limits on Federal offices.
Does the Federal government have authority over state laws? The answer is, unequivocally, yes.
In 1925, in a case ("Gitlow vs. NY"), the Supreme Court ruled that the First Amendment prohibition against abridgment of free speech applied to the states, as well as the Federal government. They based the decision on a phrase in the Fourteenth Amendment which says, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States".
There is similar language in the main body of the Constitution: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States" (Article IV, Section 2). That covers another right-wing shibboleth, the "Original intent". Yes, the Founders WANTED Federal protections of rights to be paramount.
If there is any possible doubt remaining that the Federal Government holds a superior position over those of the several states, the Original Constitution goes on to say, "This Constitution, and the Laws of the United States which shall be made in Persuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land, and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding". [Italics mine]. (Article VI, paragraph 2).
So any state law that doesn't pass constitutional muster with the courts can be annulled.
So what States' Rights really boils down to is that states have the right to pass laws, but the Federal government has the right to determine if they are valid or not.
That leaves "dual sovereignty". States have a limited sovereignty in that the Constitution lets them govern whatever the Constitution doesn't say they can't. But a quick glance through the Constitution shows that this is a pretty short list. States are explicitly forbidden from entering into treaties, coin money, issue bonds save through Federal purview, knighting people, keep troops, wage war, or form confederacy with other states independently of the Federal government. There's an even longer list of things that the Federal government CAN do, and with which the states may not interfere. It's a very unequal partnership. And what the states are allowed to do is subject to Federal court scrutiny.
Finally, there's the little matter that the Federal Government is empowered to overturn a State government under certain conditions. The "conditions" themselves are vague.
Article IV, Section 4, U.S. Constitution
"The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion: and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."
So what happens if some State government goes mad, abolishes elections, and declares the governor to be God's Representative on Earth? There's room for argument about what a "Republican Form of Government" might be, put pretty clearly, a nasty little theocratic dictatorship isn't what the Founders had in mind.
The key word is "guarantee". This means that in a case like this, the Federal Government is OBLIGED to move in and remove the rogue government. In effect, they have limited power to dismiss a state government.
A startling notion, no? It's never happened, quite (the Civil War being a quasi-exception). But it could. The US could dismiss a state government.
If it can be dismissed, it ain't sovereign.
If someone points out that voters can dismiss the government at every election, I'll grin at them and agree heartily. That's absolutely correct. State governments are not sovereign. The Federal government, while having limited authority over State governments, is not sovereign.
The people, and only the people, are sovereign. Which makes a complete hash of the entire sovereignty argument, dual or otherwise.
So: not only can the States not nullify or ignore a federal law, but the Feds can overturn their laws. Further, the Feds have the right to override the State government in a number of ways if the states interfere with the rights, enumerated or otherwise, that are held by the people.
"States' Rights" is right wing hokum. "Dual sovereignty" is pure nonsense.