The US Constitution protects States Rights?

Most of this was taken from www.outsidethebeltway.com/the-anti-federalist-impulse/ with some editorial tweeks by me. The original is by Steven L. Taylor who is the Professor and Chair of Political Science at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. No wonder it was pretty good, but still needed a few tweeks.


I like to say that some of the defenders of the Constitution need to study up on what exactly they claim to be defending since they tend to say thing that go against the Constitution, such as the Second Amendment somehow repeals Article III, Section iii and allows one to wage war against the United States.

One of the remarkable examples of the Constitutionalist movement is that while they speak with great fervour about the Constitution and the Founding Fathers:  they rather frequently use arguments of anti-Federalists founders  (they also come out and say that the US was established as a "Christian", nation rather than a secular one as well).  For your information, the anti-Federalists were those who opposed the ratification of the US Constitution, typically on the grounds that that states ought to continue to retain their power positions under the Articles of Confederation (the US’s first "constitution", more or less, that was in place from 1777-1789 and subsequent ratification by the states).

One of the massive mistakes made by those on the rightward side of the debate who claim the sacred nature of the Constitution is the assertion that the Framers were states rights activists or that the goal of the constitution was to constrain the federal government vis-à-vis the states.  While there is a debate to be had over the appropriate scope of the federal government, as well as the meaning of things like the 10th Amendment, the commerce clause, and the general welfare clause, there is no debating that the whole goal of the US Constitution was to create a strong, viable central government.   It is indisputable that the US Constitution was written and deployed to give the federal government more power over the states than had previously existed (not the other way around as some would have it).  Yes, there are limits placed on the federal government, but the Constitution itself was not created in the context of the need to constraint government, it was created in the context of the need to create a viable, functional government (and one that was demonstrably more powerful than that which existed under the Articles of Confederation).  The argument for true state-level sovereignty was an anti-Federalist, pro-Article of Confederation argument.  Indeed, if the Framers had wanted a tiny central government that was subordinate to the states they already had one and therefore had no reason to meet in Philadelphia in 1787.

To quote James Madison from a letter to George Washington in April of 1787: “I would propose that…the national government should be armed with positive and compleat authority in all cases which require uniformity; such as the regulation of trade, including the right of taxing both exports and imports, the fixing the terms and forms of naturalization, etc. etc.”

If one is going to argue that, ultimately, the states should supersede the federal government, then one is not making federalist (i.e., pro-constitution) arguments, one is making an anti-federalist (i.e., anti-constitution) arguments. If one wants to see the Framers’ views of a system in which state power can trump federal power (i.e., a confederation) one need look no further than Federalist 15-22 (not to mention the text of the Constitution itself).  This quote from 16, which strikes me as especially relevant to refuting the Constitutionalist mindset:

The result of these observations to an intelligent mind must be clearly this, that if it be possible at any rate to construct a federal government capable of regulating the common concerns and preserving the general tranquillity, it must be founded, as to the objects committed to its care, upon the reverse of the principle contended for by the opponents of the proposed Constitution. It must carry its agency to the persons of the citizens. It must stand in need of no intermediate legislations; but must itself be empowered to employ the arm of the ordinary magistrate to execute its own resolutions. The majesty of the national authority must be manifested through the medium of the courts of justice.

It is utterly inconsistent to claim the Constitution as one’s moral foundation and parading around with a copy of it in one’s shirt pocket and then arguing from the anti-Federalist position. At a minimum, it shows that one does not understand one’s own arguments. Mostly it is just a constant source of amazement to me that those who are the most vocal about the Constitution and the Founding generation get it so wrong most of the time. I would much prefer it if these folks would simply say, “You know, the anti-Federalist had a point about X, Y, and Z” (but that would mean that the Constitution isn’t perfect, which would create its own set of difficulties for them). I would also add that the Anti-Federalist position was the one that lost otherwise the would still be trying to function under the Articles of Confederation: if it even still existed.

Then again, it also shows that they have no real understanding of the Constitution or Constitutional law.

Next installment: why it is wrong to claim the Declaration or Independence as a legal basis for revolt (or Article VI for idiots).