One of the basic legends of our political system is that our liberties are protected because Congress has only limited power to pass laws, and, as a result, it has not been in a position to infringe our rights. Another part of the legend is that the power of the States' to offset federal encroachments is an important safeguard of those liberties. In practice, the opposite is true. For most of our history, the federal government has been the progressive force in our society, passing voting rights and civil rights acts and other laws regulating the worst excesses of the business community. Since the restrictions in the Bill of Rights already protect our basic rights, there is no valid reason today for limiting the power of the federal government to pass necessary legislation. On the other hand, the States have not been the great protectors of liberty, but they have been the instruments of repression in our history.
At the very start of his opinion upholding the constitutionality of the Patient Protection and Affordable Care Act (otherwise known as Obamacare), Chief Justice Roberts noted: "Rather than granting general authority to perform all the conceivable functions of government, the Constitution lists, or enumerates, the Federal Government's powers" which the government cannot exceed. Roberts also noted that limiting the ability of the federal government to legislate generally is different from the specific prohibition on the use of governmental power, such as those contained in the Bill of Rights. "These affirmative prohibitions come into play, however, only where the Government possesses authority to act in the first place. If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution."
Why should that be so? States can pass any law they want, so long as it does not violate any provisions of the state or federal constitution or laws. In England, France, Germany and the other democracies around the world, the national governments can also pass any law, so long as the law does not violate any constitutional or treaty provision. They have "general authority to perform all the conceivable functions of government." So Massachusetts or England could pass a health care law almost identical to the federal law. But the federal government could pass such a law only if it could be based upon one of the enumerated powers in the Constitution, such as the Commerce Clause or the taxing power. Why should our national government lack the power to act unless it could rely upon specific language in the Constitution formed in 1787?
The reason for this distinction is based upon history. The delegates who came to Philadelphia to draft the Constitution in 1787 recognized the troubles that existed under the Articles of Confederation. The chief complaint was the Confederation's inability to protect the nation against foreign invasion. In the opening address of the Convention, Governor Edmund Randolph of Virginia complained about the "Imbecility of the Confederation... conspicuous when called upon to support a war." He supplied the answer: "Nothing short of a regular military force will answer the end of war, and this only to be created and supported by money."
Thus the most important purpose of a new national government was to defend the people of the country against a foreign invasion, as well as to prevent uprisings in the States, such as Shay's Rebellion in 1786. Therefore we needed a central government capable of enlisting its own army (as opposed to the State militias) and able to tax and raise enough money to support that army. But a national government with a "standing army," that is, a permanent military force was a problem. Madison warned: "a standing military force with an overgrown Executive will not long be safe companions to liberty." When the Constitution was finally drafted, six of the 18 enumerated powers in Article I, Section 8 dealt with control of the military. And the Constitution authorized State militias to be formed that could resist tyrannical military action by the federal government.
Thus the chief reason for creating a strong national government -- the organization and support of a military force to protect the country -- was also a source of danger. The delegates wanted to limit the power of the national government so it could not use its military force to abridge their liberties. They granted it only those powers necessary to fulfill its mission of protection, and also to "produce certain blessings," such as operating post offices and building national roads, as Governor Randolph suggested.
Justice Scalia continues to insist that limiting federal power and allowing the States to offset and control the federal government is necessary to protect our liberty. In the case striking down the Brady Handgun Act on the ground that in interfered with the rights of the states, Scalia wrote: "This separation of the two spheres is one of the Constitution's structural protections of liberty." Quoting from another case, he wrote: "Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front."
Is there really any risk of tyranny from the federal government? Is there any chance that an ambitious general will call out the army and take away our liberties? We do have national elections for federal office every two years, just as the States do, as well as a vigorous federal judiciary ready and eager to enforce the Bill of Rights against the federal government. The idea that the federal government should have fewer legislative powers than the States is based on nothing more than a perceived problem that existed 226 years ago, and no longer has any force today. Thus the Supreme Court should interpret the 18 enumerated powers in the Constitution in a manner that allows Congress to pass any necessary legislation that advances the general welfare.
On the other hand, the banner of States' rights has been used to perpetrate and defend the greatest evils in our nation's history. Slavery was justified on the ground that each State should be free to determine its own economic practices. In the 1890's, corrective federal legislation against monopolies (such as the Sherman anti-trust act) was attacked on the grounds that the States and not the federal government had the sole right to regulate business. In the 1930's, important New Deal measures that would have alleviated the worst problems of the depression were challenged and struck down by the Supreme Court on the grounds that the new laws invaded the prerogatives of the States. After the Civil War, the Southern states used every means possible to keep the black population in a subservient position and engaged in "massive resistance" to school desegregation orders issued by federal courts on the grounds that the States should control education. And more recently since 1992, the Supreme Court invalidated parts or all of fifteen federal laws - including many civil rights laws - on the grounds of States' rights. So the Court held that Congress did not have the power to pass the Violence Against Women Act since such a law invaded States' rights. In addition, other decisions deprived State employees of the right to sue their employer -- the State -- for discrimination on the grounds of age or disabilities because States have immunity from lawsuits brought against them in federal court. And a significant portion of the Affordable Care Act that would have expanded Medicaid coverage to a broader range of poor people was struck down as an invasion of States' rights.
Underneath the exhortations of the Tea Party supporters to restrict federal power is the belief that the federal government is trying too hard to support the poor and the powerless. In practice, the assertion of states' rights really means resistance to progressive federal laws designed to alleviate the inequality in our society. We must look more closely at the real reason why States rights are asserted to block action by the federal government.
Leon Friedman is a professor of constitutional law at the Maurice A. Deane School of Law at Hofstra University and the editor of "The Justices of the United States Supreme Court: Their Lives and Major Opinions," (Facts on File, 2013)