10th Amendment & Federalism Research Paper

Under the 10^th Amendment of the U.S. Constitution, powers are divided between the federal government and the states. This is known as the principle of federalism. The 10^th Amendment reads “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.” What this means is that the federal government only has power over the areas specifically mentioned in the Constitution as belonging to the federal government. However, federalism is an evolving principle, not a static one. Most of the constitutional powers of the federal government have remained unchanged on paper. Despite this, the influence of the federal government greatly expanded in the 20^th century. The federal government now exercises powers in areas that would have been regarded as clear state issues a century ago. In recent years, this has led to a movement by some conservatives to “devolve” power from the federal government and move it back to the states. This paper will discuss the changes in federalism over the 20^th century along with the devolution movement. It will also analyze the intervention of the federal government during the civil rights movement.

Over the 20^th century, power has strongly moved toward the federal government and away from the states. In many ways, this movement has been directly proportional to the increased spending and taxing by the federal government. During the 19^th century, most revenue raised by the federal government came from tariffs on imports. However, the 16^th Amendment, passed in 1913, created the federal income tax. There were several reasons the amendment was passed. Corporations had been growing rapidly in the previous decades, and many people felt that the federal government was the only entity with the power to check some of their worst abuses. In order to check the abuses of corporations, though, the federal government needed to raise much more revenue than it previously had. The 16^th Amendment gave the federal government much more potential power.

The Great Depression and the election of Frankin D. Roosevelt as President in 1932 gave the federal government the will to exercise that potential power. By this point, the economy no longer consisted mostly of small local actors (farmers, shopkeepers, etc.), but rather massive corporations with presences throughout the entire country. Individual states had little ability to regulate large multi-state corporations, and when the Great Depression hit states were powerless to try to improve the economy.

This state of affairs set the stage for the New Deal. President Roosevelt and the federal government intervened in the economy to a degree unprecedented in American history. The federal government passed legislation establishing Social Security, protecting the right of workers to join labor unions, and even imposed limits on how muck wheat farmers could grow (Lowi 17). The federal government justified this intervention on the grounds that the Commerce Clause of the Constitution gave it the power to intervene in any matters involving interstate commerce, and after some hesitation the courts eventually agreed. Whether this interpretation of the Commerce Clause is correct or not, though, it was clearly a massive change in the relationship between the federal government and the states. Issues such as the right to join labor unions had typically been considered state matters. Since almost any issue or any problem could potentially affect interstate commerce, this interpretation greatly expanded federal power.

The powers of the federal government continued to expand greatly throughout the 20^th century, until a backlash eventually developed. This backlash coincided with the rise of the conservative movement in the 1970’s. These conservatives felt that the powers of the federal government had grown far beyond anything the framers of the Constitution had ever intended. They also felt it limited the ability of citizens to control their own lives. A citizen’s vote is likely to be much more influential in a local or state election than it is in a national election, where there are a hundred million other voters. This concern led to the devolution movement, which calls for a return of local control. Proponents of devolution call for the federal government to return some of its powers to the states. In some cases, this has come in the form of the federal government giving block grants to states to spend as they see fit, rather than attaching strings to the money. Devolution supporters also sought to bar the federal government from imposing mandates on states without providing the money to implement those mandates. Republicans sought to prohibit this as part of their 1994 Contract with America campaign platform, and actually succeeded in passing a bill into law limiting unfunded mandates. Despite this success, states continue to complain about unfunded mandates (“The Head Ignores the Feet”).

Part of the reason proponents of devolution have had such a difficult time returning power to the states is the bad reputation that “states’ rights” earned during the civil rights movement. Until the 1960’s, Southern states used states’ rights as justification to deny African-Americans the right to vote, deny them access to schools and other facilities, and generally treat them as second-class citizens. Massive protests against segregation and other Jim Crow laws broke out in the 1960’s, but these laws were only eventually struck down because of intervention by the federal government. The Civil Rights Act of 1964 prohibited segregation in places of public accommodation, and the Voting Rights Act of 1965 prohibited “tests” and devices used to deny African-Americans the right to vote. Of course, these interventions are now widely regarded as necessary in combatting segregation and ending Jim Crow laws. When supporters of devolution claim that the federal government has overstepped its bounds, one of the first questions they are inevitably asked is whether they feel the federal government was wrong to intervene during the civil rights movement.

In analyzing whether the federal government was constitutionally correct to intercede, it is necessary to divide the discussion into two areas – the Voting Rights Act, and the Civil Rights Act. Regarding the Voting Rights Act, the federal government was absolutely constitutionally correct in protecting the right to vote for African-Americans. The 15^th Amendment bars states from restricting voting rights based on racial considerations. Notably, Section 2 of the 15^th Amendment states “The Congress shall have power to enforce this article by appropriate legislation.” The amendment was ratified in 1870, but had been blatantly flouted by Southern states since the end of Reconstruction. The Voting Rights Act was simply an attempt by Congress to enforce the 15^th Amendment. Southern states used poll taxes, literacy “tests,” and other devices to block African-Americans from voting (of course, few if any white people ever failed these literacy “tests”). Almost no proponents of devolution would complain about the Voting Rights Act.

The Civil Rights Act is more complicated. It prohibited private businesses that held themselves out to the public from practicing segregation. The constitutional justification for the bill was that such segregation affected interstate commerce, and was therefore within the powers of the federal government to legislate on. Many conservatives at the time (not all of them racists by any stretch) disagreed, and voted against the bill on the grounds that it was unconstitutional. This is a tougher question than the Voting Rights Act, but under a literal reading of the Commerce Clause the Civil Rights Act probably is constitutional. If an African-American goes to a store and is turned away from purchasing something because of his race, that clearly affects commerce. The issue is whether that affects interstate commerce. In today’s society, virtually no businesses can be called entirely local. They may be part of a larger corporation in another state, or they may receive shipments and materials from another state. That may be an expansive reading of the Commerce Clause, but it is no more expansive than many other interventions by the federal government during the New Deal and afterwards. If the Civil Rights Bill is unconstitutional, then decades’ worth of laws are as well. It is worth pointing out that the Supreme Court unanimously upheld the constitutionality of the Civil Rights Act shortly after its passage.

Finally, this paper will provide a description of the duties of the federal government and the duties of state and local governments. Areas such as foreign policy, immigration law, and coining currencies are clearly within the domain of the federal government only. It would be absurd, if not impossible, for state and local governments to intervene in these fields. Areas such as property laws and criminal laws are state responsibilities. Each state has different kind of laws, and some actions may be legal in some states and illegal in others. The federal government does have concurrent responsibility in some areas of criminal law. Crimes that involve crossing state lines or that otherwise affect the nation (such as the assassination of a President) violate federal law as well as state law. Zoning laws and public services (such as public transit) are typically the responsibilities of local governments.

Of course, there is not always a clear distinction between federal and state responsibilities, as the example of criminal law makes clear. The area of education is one example of this. Education has traditionally been entirely a state and local matter. However, schools have become much more dependent on federal funds throughout the last several decades. This obviously gave the federal government power, and the federal government has attempted to use this power in recent years. The No Child Left Behind Act is the latest example. Even many conservatives who otherwise support limiting the power of the federal government feel that too many public school systems are weak, and that the federal government must intervene by setting standards for schools to meet. On the other hand, some critics of the No Child Left Behind Act believe that federal intervention is the worst possible way to improve public schools. States have also resisted being required to have their schools meet certain standards without being given the funding to help meet those standards. In the years to come, the federal-state relationship regarding education reform will likely be a fascinating issue to watch.

References

Lowi, Theodore. The End of the Republican Era. Norman, Oklahoma: University of Oklahoma Press, 1995.

“The Head Ignores the Feet.” The Economist, 2003.