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States' Rights[?]

50 Pages Posted: 14 Oct 2007  

Calvin H. Johnson

University of Texas at Austin - School of Law

Date Written: September 2007


Professor Keith Whittington's review disagreed with my Righteous Anger at the Wicked States: The Meaning of the Founders' Constitution on (I.) constitutional interpretation of state rights and (II.) on explaining the causes of the Constitution.

I. No Significant States' Rights.
Under the overall design, the text, history, and Framers' arguments, there is no supremacy of states nor significant states' rights.

A. Overall design.
Righteous Anger argued that the historical Constitution was a viciously nationalizing vector, written to empower an imbecilic and impotent federal government, and to end the supremacy of the states. If one is going use the grand design of the historical Constitution to generate a rule, the result would favor the federal government in any conflict with the states.

B. Text.
(1) Territory. The most important written states' rights is the requirement (art. IV, §3) that a state must give its permission for Congress to take away of its territory to create a new state. The provision was honored only formally in the formation of West Virginia, and it is not very important.
(2) Express limitations. The Framers of the Constitution deleted the prior requirement that Congress would have only the powers “expressly delegated to it” because the limitation had proved “destructive to the Union” and because they wanted Congress to have the unenumerated power to require passports.

C. Which first?
Professor Whittington argues that the states came first and that the Federalists wrested only a specified quantum of government power from the pre-existing states. Primordial supremacy of the states, however, is not good history. The Union is older than any of the States and formed them, or at least the Federal government and states moved to independence together, egging each other on. Judicial doctrine also says that sovereignty transferred from the British Crown directly to the national government.

D. Constitutional Legitimacy.
On its own terms, the Constitution claims its power directly from the sovereign people, and not by transfer or delegation from the states.

E. The Pivotal Voter.
The Constitution was ultimately endorsed by delegates representing over two-thirds of the population. Once the Constitution reached the public and the country got used to it, it is clear that the pivotal voter would have tolerated a far more radical change than the Constitution effected.

F. Let's Get Rid of “States' Rights” Usage.
“States rights” is misleading term because it is a very different thing from individual rights, limiting government in favor of individuals. “States rights” have often been the enemy of individual rights. Conflating “states rights” with “individual rights” makes it impossible to see the conflict. For the proponents of the Constitution, the federal government was the better protector of individual rights. States, indeed, are not properly understood as rights bearing entities.

II. Historical Causes of the Constitution.
A. The Weight of Anger.
Righteous Anger concluded that righteous anger at the wickedness of the states was a necessary cause of the Constitution. The Framers of the Constitution were angry at the states for betraying the great cause of the Revolutionary War by making it impossible to pay the war debts. Anger at the states allowed the Convention to overcome their limited instructions for amendments to the Articles of Confederation, and to replace the confederation mode with a strong national government.

B. Taxes instead?
Professor Whittington argues that the emotion of anger is not necessary or helpful to explain the adoption of the Constitution. The Framers had to get federal direct or internal taxes for the next war, Whittington argues, and they had to end the one-state veto of federal taxes, but anger is not necessary to those causes nor helpful beyond that. Plausibly, however, neither direct tax nor beating unanimity is necessary to the Constitution.
1. Direct tax.
Most of the country was skeptical about the need for a federal direct tax. The majority of the states recommended that Congress not have the power over internal tax and was turned off by “beating the war drums” implying the need for a strong army. The Framers promised that federal internal tax would be rare, and especially after Jefferson was elected, that became true.
2. Unanimity.
It is quite plausible that the Founders needed anger at the states to reject the single state veto. Had not the Framers been so mad at New York, they might well have reached a reasonable compromise with New York allowing a federal import tax, without replacing the Confederation with a national government. A polity that is built on consensus and “United We Stand” needs to negotiate to work out the differences and needs to compromise to pull in all the states. Anger destroyed the unanimity norm.

C. Does History Matter?
The Constitution is first a historical document written to accomplish programs, the most important of which was to get the war debts paid. The specific problems for which the Constitution was written were solved by the 1791. Solving 21st century problems with eternal verities was in fact not a very important part of what the Founders were trying to do. The Framers knew nothing even about January 1787 or thereafter because it had not happened yet.

Professor Whittington dislikes a history of the Constitution loyal to its times that renders the Constitution irrelevant to modern politics, but the framework of looking for lessons for today ruins the possibility of understanding the past in its own terms. History as a professional discipline properly has a profound distrust for “presentism,” defined as using historical facts to solve current problems.

Good history, however, does have a role in protecting us from bad history. The Supreme Court in finding states' rights in this Constitution is finding fake artifacts, planted by the Court in the archaeological digs shortly before they are unearthed.

Keywords: states' rights, constitution, direct tax

Suggested Citation

Johnson, Calvin H., States' Rights[?] (September 2007). U of Texas Law, Public Law Research Paper No. 130. Available at SSRN: or

Calvin Johnson (Contact Author)

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1306 (Phone)
512-232-2399 (Fax)

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