NARAL Pro-Choice Missouri : Issues : Fact Sheets

The antiquated constitutional philosophy that animates H.J.R. 88 may only be described as Calhounian. To read the Resolution is to be forced to wonder when a Declaration of Secession might be entertained.

John C. Calhoun's philosophy was rejected at the Constitutional Convention in the late 18^th century, was rebuffed in the American Civil War, and was resoundingly rejected with George Wallace's segregationist death rattle echoing in the marchers' steps over the Edmund Pettus Bridge in Selma. Yet States' Rights continues to rear its ugly head wherever defiance of civil rights and equality for all citizens regardless of the color or shape of their skin thrive (even, occasionally, in the musings of the Supreme Court related to age, wage and hour laws, and disability—but never in the post-World War II era to race or gender).[1]

I. THE RESOLUTION MISUNDERSTANDS THE SCOPE OF THE TENTH AMENDMENT, WHICH DOES NOT PERMIT STATES TO NULLIFY FEDERAL LAWS THEY DON'T LIKE.

The federal government most certainly was not created by the states specifically to be an agent of the states as the Resolution assumes. Rather, the framers of the Constitution deliberately engineered an energetic national government to replace the loosely agglomerated knot of states governed by the enervating Articles of Confederation that had adopted the state-centric model advocated by the sponsors of the Resolution. The Constitutional Convention would have been unnecessary had the Articles proven to be a sufficient governing instrument. See A. McLaughlin, A Constitutional History of the United States 137-47 (1936).

The Resolution places much stress on the Tenth Amendment, which has been ruled on in the Supreme Court only about a dozen times since the founding of the republic—in sharp contrast to the first, fourth, fifth, seventh, eighth, eleventh, and fourteenth amendments. The reasons for the dearth of case law are twofold.

First, the Tenth Amendment does nothing more than articulate the delineation of powers between the federal government and the states (it does not confer any affirmative powers on the states), and it grew out of the Framers' desire to forge a compromise with fearful anti-Federalists who wanted the states to have an express brake on the powerful new federal government that was being created to replace the odd confection hobbled by the Articles of Confederation.[2] Significantly, in debates about the ratification of the Constitution and its amendments, some anti-Federalists argued that the Tenth Amendment should limit federal authority to those powers “expressly” granted, which would have the effect of denying the federal government any implied powers, but the argument was rejected.[3] As the Supreme Court has stated of the Tenth Amendment:

The amendment states but a truism that all is retained which has not been surrendered. There is nothing in its history or its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.

United Statesv. Darby, 312 U.S. 100, 124 (1941). See also United States v. Sprague, 282 U.S. 716, 733 (Tenth Amendment “added nothing to the instrument as originally ratified”).

Second, the Tenth Amendment has something of a reputation as a refuge of scoundrels. From time to time state and local governments have tried to justify discriminatory laws—especially in the areas of race, labor, and environmental regulation—with resort to the Tenth Amendment. Thus, in The Civil Rights Cases, 109 U.S. 3 (1883), Missouri among other states challenged Congress' authority to pass the Civil Rights Act of 1875, which made racial and religious discrimination in public accommodations illegal. With only Justice Harlan dissenting, the Court held that Congress had no power under the Thirteenth and Fourteenth amendments to pass such a law and that it had transgressed the powers reserved to the states through the Tenth Amendment.[4] Thirteen years later, again with only Justice Harlan dissenting in some of the most inspiring words in all of constitutional law, the Supreme Court affirmed the State of Louisiana's argument that the Tenth Amendment allowed it to racially segregate public transportation, giving rise to the notorious “separate but equal” doctrine that legitimated all forms of social and school segregation[5] until Brown v. Board[6] was decided in 1954. A few scattered cases bear witness to the Lochner-era distaste for the New Deal programs of Franklin Roosevelt (such as child labor prohibitions and some tax and commerce regulations),[7] but these cases, too, were later overturned by a more enlightened Court.

Besides these shocking holdings giving judicial imprimatur to Victorian-era racial prejudice and abhorrent attitudes toward children, however, the modern Supreme Court almost never invalidates a federal law as an infringement on the states' Tenth Amendment reserved powers. In 1992, for only the second time in almost 60 years, the Court invalidated a radioactive-waste law Congress had passed as a violation of the Tenth Amendment because it forced the states to enforce and actually administer federal regulations, and in 1997, it struck the federal Brady Handgun Violence Prevention Act for the same reasons. See New Yorkv. United States, 505 U.S. 144 (1992); Printz v. United States, 521 U.S. 898 (1997). The rarity of such holdings is telling.

There is yet another reason that H.J.R. 88's reliance on the Tenth Amendment as justification for defiance of federal law would be misplaced. Even if there were any merit to the Tenth Amendment view advanced by H.J.R. 88, Congress would still have the power to pass all of the federal laws or regulations recited in Section 35.1 by virtue of its powers under the Constitution's “necessary and proper” clause. That the necessary and proper clause can be a complete rebuttal to extravagant claims for the Tenth Amendment's scope is an insight that may be traced back to 1819, in one of the first Justice Marshall's most legendary opinions, McCulloch v. Maryland, 17 U.S. (Wheat.) 316, 372 (1819).

Besides its erroneous understanding and misapplication of the Tenth Amendment, the Resolution demonstrates other defects of understanding; namely, reflexive paranoia about an omniscient and malevolent federal hand wielding a cudgel over the states. In fact, the radioactive-waste and handgun cases cited above—1990s cases—demonstrate not that Congress is overweening but rather, that Congress may not commandeer the states' employees to enforce and administer federally mandated programs such as criminal records checks for purposes of federal gun-control laws. Although it is certainly true that the federal government regulates citizens to a far greater extent than in the mid-1800s, it is the states in which the predominant police powers are reposed. The states, not the federal government, largely regulate crime, marriage and the family, property, and schooling—the areas most intimately connected to the citizens.

Likewise, H.J.R. 88's tacit premice that there is a hierarchy of rights in the Constitution that disfavors implied fundamental rights is simply civically illiterate. The United States Supreme Court has held the implied right of reproductive privacy of the Fourteenth Amendment to be broad enough to encompass a woman's right to choose an abortion, and the Court has expressly held this right to be “fundamental”—as fundamental as the right to direct the course of a child's general upbringing, for example. See Roe v. Wade, 410 U.S. 113 (1973).[8] The fact that a particular constitutional right is not called out by name in the text of the Constitution does not render that right nonexistent. The belief that it does flies in the face of our earliest constitutional cases and any rational understanding of American constitutional history.

The Resolution contains other misstatements and objectionable terms and provisions, as well. To summarize them:

1. By virtue of the Supremacy Clause[9] of the federal Constitution, where federal law regulates a matter rather than leaving that matter principally within the domain of the states, the federal law is supreme, and the state law, to any extent that it is inconsistent with the federal law, cannot be enforced. Marbury v. Madison, 5 U.S. (1 Crach) 137 (1803). Supreme Court precedents, like superseding federal statutes, must be honored by the states. Cooper v. Aaron, 358 U.S. 1 (1958). Nullification of federal laws cannot legally occur in our system.

2. The Resolution evidences an astounding degree of ignorance of the First Amendment's Establishment Clause. It has been clear from the inception of the republic that the separation of religion and government was intentional, and the Supreme Court has been saying so for a very long time. See, e.g., Everson v. Board of Educ., 330 U.S. 1 (1947). It might be noted that H.J.R. 88 disingenuously quotes from a dissenting opinion in Wallace v. Jaffree, which Chief Justice Rehnquist and his allies lost 6-3. A dissenting opinion that is contrary to almost 70 years of legal precedents is not good authority, and pretending that it is is an exercise in intellectual dishonesty.

3. Section 35.1 (3) purports to require judges, legislators, and the organs or Missouri government to adopt interpretations of the federal Constitution “based on its language and the intent of the signers of the Constitution at the time of its passage.” Accordingly, all of the following would have to be true, because they are in the text of the original Constitution as ratified by the Framers:

a. Slavery exists, and for purposes of apportioning representation to white male property owners in the House of Representatives, those slaves are treated as 3/5 of a person. Art. I, sec. 1, cl. 3, U.S. Const.

b. Because slavery was not outlawed by the Founders and because the Constitution as originally adopted allowed importation of slaves until a date certain, the Civil Rights Amendments of 1865-70 (the 13^th, 14^th, and 15^th Amendments) must be repealed as inconsistent with the Framers' intent.

c. The Fourteenth Amendment, assuming it were not void from inception for the reason given above, cannot be applied to any person living today, because it was framed and by its express terms applies only for the benefit of the Freedmen (former slaves). It cannot be used to protect women as it has been since 1973. All of our nation's federal civil rights laws based on protecting women, or any person besides a person who had formerly been a slave, made under Congress' power to pass laws enforcing the provisions of the Fourteenth Amendment must be struck as at odds with a document ratified in 1788, to which the original Bill of Rights was added in 1790.

These results would of course be manifestly absurd. The anti-constitutional manifesto that is embodied in the terms, color language, and Calhounianism of H.J.R. 88 is an absurd document that shows an appalling ignorance of 223 years of constitutional history.

[1] The Supreme Court has employed a states' rights/state sovereign immunity analysis in Age Discrimination in Employment, Fair Labor Standards, and Americans with Disabilities Act cases where the employee who is suing the state works for it. Even in this handful of cases employing an explicit states' rights analysis, the Court has not employed a Tenth Amendment reserved-powers analysis, but rather, an Eleventh Amendment sovereign immunity (“the king can do no wrong”) analysis. The modern Supreme Court has never adopted a states' rights framework for challenges based on race or gender. Race and gender have been accorded constitutional—not merely statutory—protections.

[2] Indeed, the text of the Tenth Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited to it by the states, are reserved to the states respectively, or to the people” is very similar to an earlier provision in the Articles of Confederation:

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

“Articles of Confederation,” Yale Law School Avalon Project, http://www.yale.edu/lawweb/avalon/artconf.htm#art.2.

[3] “House of Representatives, Amendments to the Constitution,” University of Chicago, http://press-pubs.uchicago.edu/founders/amendXs6.html; Annals of Cong. 767-68 (1789) (amendment to insert word “expressly” into Tenth Amendment failed House 32-17); 2 B. Schwartz, The Bill of Rights: A Documentary History 1150-51 (amendment defeated in Senate by unrecorded vote).

[4] Needless to say, a more modern Supreme Court ultimately overruled precedents such as this one, which led to the promulgation of Jim Crow laws in the states, and sustained Congress' power to pass a public accommodations law despite “states' rights” Tenth Amendment objections. See Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964).

[5] See Plessy v. Ferguson, 163 U.S. 537 (1896).

[6] See Brown v. Board of Education, 347 U.S. 483 (1954).

[7] See,e.g., Carter v. Carter Coal Co., 298 U.S. 238 (1936) (coal tax regulation); United States v. Butler, 297 U.S. 1 (1936) (agricultural tax regulation). The reasoning of these and other cases challenging Congress' authority to regulate interstate commerce on Tenth Amendment grounds was resoundingly rebuked in United Statesv. Darby, 312 U.S. 100 (1941).

[8] H.J.R. 88's reference to “penumbras” is a reference to language that appears in Roe v. Wade. See Sec. 35.1 (3).

[9] Article VI, clause 2 of the Constitution of the United States provides: “This Constitution and the Laws of the United States which shall be made in Pursuance 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, and thing in the Constitution or Laws of any State to the Contrary notwithstanding.”