# Federal Government vs. States' Rights **URL:** \ **Category:** Great Debates\ **Created:** [September 22, 2000, 12:01am UTC](https://boards.straightdope.com/t/federal-government-vs-states-rights/34074 "2000-09-22T00:01:10Z")\ **Posts on this page:** 17\ **Page:** 2
**Author:** ![2nd\_Law](https://avatars.discourse-cdn.com/v4/letter/2/f475e1/32.png) [@2nd\_Law](https://boards.straightdope.com/u/2nd_Law)\ **Post date:** [September 25, 2000, 7:32pm UTC](https://boards.straightdope.com/t/federal-government-vs-states-rights/34074/21 "2000-09-25T19:32:07Z")
> [@](#): > > \*Originally posted by Akatsukami \* > Oh? I was under the impression that Article I, Section 8 limited it quite a bit more than that, the Elastic Clause notwithstanding. Well, I was referring to geographic jurisdictional limitations. As for substance matter, Art. I, sec. 8 does set forth limitations, but what I gathered in my meager education was that one way or another Congress can pass legislation on pretty much anything, regulatory legislation usually falling under the Commerce clause. ---
**Author:** ![tracer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tracer/32/20578_2.png) [@tracer](https://boards.straightdope.com/u/tracer)\ **Post date:** [September 25, 2000, 7:47pm UTC](https://boards.straightdope.com/t/federal-government-vs-states-rights/34074/22 "2000-09-25T19:47:03Z")
ricksummon wrote: > [@](#): > > Oh, and by the way, tracer, what’s your opinion on the following statements: > > “The only people who care about the right to free speech any more are people who want to use it as an excuse to attack Federal policies they don’t personally like.” My opinion on that statement is that it’s false. Free speech is a specific personal right. “States Rights” are neither personal nor specific. > [@](#): > > “The only people who care about the right to own guns any more are people who want to use it as an excuse to gun down people in the streets whenever they want.” > > “The only people who care about the right to prevent illegal searches and seizures are people who have something to hide.” Also, obviously false. Your implied analogy between these statements and mine is flawed. These are all statements about personal rights. States Rights are anything _but_ personal. ---
**Author:** ![ricksummon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ricksummon/32/3333_2.png) [@ricksummon](https://boards.straightdope.com/u/ricksummon)\ **Post date:** [September 25, 2000, 9:55pm UTC](https://boards.straightdope.com/t/federal-government-vs-states-rights/34074/23 "2000-09-25T21:55:17Z")
Tracer, I think that you’re just fixating on the word “rights.” It’s true that government doesn’t have rights, only powers. But when we speak of “states’ rights,” we mean “powers that belong to the state governments instead of the federal government.” The Constitution was written by people who wanted a compromise between a strong federal government and strong state governments, so they limited the powers of the federal government and granted all other powers to the states. If states have no “rights,” then why are there state laws, state legislatures, state police, state governors, etc.? Why doesn’t the federal government just appoint federal governors for each state? Why aren’t all policemen FBI agents? Because the authors of the Constitution believed that the people of each state should be able to decide some things for themselves without interference from other states, i.e. the federal government. Let’s get back to my drinking age example. If states have no “rights,” then why can’t the feds just impose a drinking age on the US directly? Answer: because that would be unconstitutional. Therefore, the feds need to use a loophole tactic such as highway funds to beat the system and get the same result. I say that using the letter of the law to violate the spirit of the law in this fashion should not be allowed. THAT’S what I mean by “states’ rights.” ---
**Author:** ![Spectre\_of\_Pithecanthropus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/spectre_of_pithecanthropus/32/12343_2.png) [@Spectre\_of\_Pithecanthropus](https://boards.straightdope.com/u/Spectre_of_Pithecanthropus)\ **Post date:** [September 25, 2000, 11:23pm UTC](https://boards.straightdope.com/t/federal-government-vs-states-rights/34074/24 "2000-09-25T23:23:02Z")
In a way the medical marijuana issue turns the original conception of states’ rights on its head. Slavery, and later discrimination, were prohibited by law, I think mainly because they flouted deeply cherished notions of fairness in a free society. True, we had to evolve, and still must evolve further before this ideal is fully realized, but it’s still safe to say that our present abhorrence of discrimination and slavery is firmly rooted in our notion of what a democratic republic should be. With medical marijuana I can find no valid reason why the federal government should have the right to trump a state law. Certainly there is no constitutional basis for it, unless you want to argue that the majority public believes that we can achieve a ‘more perfect union’ and foster ‘domestic tranquility’ only by prohibiting marijuana use under any circumstances. And sure enough, anti-drug rhetoric casts the great non-drug-using majority as victims whenever someone lights up a joint–surely the greatest class of victims ever conceived in this age of eager victimhood. Oh well, I’m getting down from my soapbox…just wanted to put my $.02 in. ---
**Author:** ![pkbites](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pkbites/32/204_2.png) [@pkbites](https://boards.straightdope.com/u/pkbites)\ **Post date:** [September 26, 2000, 1:52am UTC](https://boards.straightdope.com/t/federal-government-vs-states-rights/34074/25 "2000-09-26T01:52:22Z")
could go to the supreme court armed with the 10th amendment amd kick Uncle Shams ass! I think alot of federal mandates are illegal. For example: The fed cannot tell states what their drinking age can be, but the can get them to change it using highway funds? That should be illegal because the RESULT is the same in either case. A competent attorney general could make a good arguement that it’s the RESULT itself that is unconstitutional, therefore anyway the result is obtained is also unconstitutional! On the state level we need to start electing pissed off rebels instead of fancy pants lawyers before this case ever comes up! Wisconsin used to have a 70mph limit on most highways and a drinking age of 18. There is no way that would have changed without the feds steping in and thwarting the will of the locals! ---
**Author:** ![MysterEcks](https://avatars.discourse-cdn.com/v4/letter/m/f475e1/32.png) [@MysterEcks](https://boards.straightdope.com/u/MysterEcks)\ **Post date:** [September 26, 2000, 6:18am UTC](https://boards.straightdope.com/t/federal-government-vs-states-rights/34074/26 "2000-09-26T06:18:45Z")
**barbitu8** said: > [@](#): > > A pure technical point, the states have the right to have the authority not specifically delegated to the federal gvt. (10th Amendment) No, actually, they don’t. The **10th Amendment** reads: > [@](#): > > The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. [Underscoring added.] You will first note that the amendment speaks of “powers” rather than “rights”–or, in speaking of government, “authority.” I would define “authority” or “power” as the ability to do something; “right” I would define as protection against something. I have the _right_to freedom of speech, in that the government can’t prevent me from expressing my political opinions; I may or may not have the _power_to do so in any effective way. Second, the amendment doesn’t necessarily grant _any_authority to state govenments. It just says that if the feds don’t have authority over a certain matter, then somebody else does–the states, or the people as a whole. Any state authority must presumably be derived because the people of that state consented, no? For that matter, you could make an argument that the people of the country as a whole can assign their powers to the federal govenment, rather than the states. (I wouldn’t make such an argument myself, since I think the federal govenment is a bloated monstrocity that needs curbed, but that doesn’t mean it can’t be made.) As for **pkbites’** point…the quick answer is that it wouldn’t work. Take the example of highway funding used to blackmail states into following federal policy–once you conceed that the feds can tax at the levels they do, and that they can distribute money to states for whatever reason (both points could probably be debated, but this isn’t really the thread for it), you’ve lost. There is nothing in the 10th Amendment, or any other part of the Constitution, that prohibits Congress from making any conditions they like for receiving money. They are not directly imposing speed limits, or drinking ages, or what have you; the states are doing that. Constitutionally, it doesn’t matter _why_the states do it; the point is that they’re the ones doing it. The states don’t have to cooperate–they could tell the feds to go to hell. (In fact, I seem to recall that one of them did that for awhile–Colorado?) There is a choice–not a good one, but a choice–which the states can make. Thus, no one is going to “kick Uncle Shams[’] ass” on the subject. Better to concentrate, as I said before, in voting the bastards out and inserting a set of bastards who will obey the spirit of separation of powers. ---
**Author:** ![barbitu8](https://avatars.discourse-cdn.com/v4/letter/b/839c29/32.png) [@barbitu8](https://boards.straightdope.com/u/barbitu8)\ **Post date:** [September 26, 2000, 1:39pm UTC](https://boards.straightdope.com/t/federal-government-vs-states-rights/34074/27 "2000-09-26T13:39:11Z")
You’re using the words “power” and “authority” as synonyms, which they are not. I have the power to break a contract, but not the authority. Similarly, when I said that the states have the right to have the authority granted by the 10th amendment, I should have said they have the right to have the power (which is the word used in the Const), which is what they have. The 10th Amend gives the states the authority to deal with matters not specifically delegated to the fed gvt. ---
**Author:** ![pkbites](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pkbites/32/204_2.png) [@pkbites](https://boards.straightdope.com/u/pkbites)\ **Post date:** [September 26, 2000, 8:28pm UTC](https://boards.straightdope.com/t/federal-government-vs-states-rights/34074/28 "2000-09-26T20:28:34Z")
The state that rebeled (though briefly, for one day I believe) was Nevada. In 1985 or 1986 (not sure which) the state posted 70 on their freeways. The feds followed through with withholding funds but this lasted for only 1 day: The state took down the signs and filed a suit against Uncle. Don’t know what happened from there on, but states are now allowed to set their own limits…hmmmm. Makes you think. ---
**Author:** ![Badtz\_Maru](https://avatars.discourse-cdn.com/v4/letter/b/e36b37/32.png) [@Badtz\_Maru](https://boards.straightdope.com/u/Badtz_Maru)\ **Post date:** [September 26, 2000, 10:27pm UTC](https://boards.straightdope.com/t/federal-government-vs-states-rights/34074/29 "2000-09-26T22:27:25Z")
Someone PLEASE give me control of a state, any state… I think if a state allowed certain freedoms they could make up more than enough money to make up for what the feds were withholding. For instance, if a state repealed their laws prohibiting marijuana sales and put a stout tax on them they would probably make a lot of money from tourists. What could the federal government do then? ---
**Author:** ![tracer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tracer/32/20578_2.png) [@tracer](https://boards.straightdope.com/u/tracer)\ **Post date:** [September 27, 2000, 11:50pm UTC](https://boards.straightdope.com/t/federal-government-vs-states-rights/34074/30 "2000-09-27T23:50:12Z")
pkbites wrote: > [@](#): > > The state that rebeled (though briefly, for one day I believe) was Nevada. In 1985 or 1986 (not sure which) the state posted 70 on their freeways. The feds followed through with withholding funds but this lasted for only 1 day: The state took down the signs and filed a suit against Uncle. Don’t know what happened from there on, but states are now allowed to set their own limits…hmmmm. Makes you think. The States are now allowed to set their own speed limits because Congress removed the speed-limit requirements from its highway fund grants, _not_ because any Federal courts threw out the speed-limit requirements as unconstitutional. ---
**Author:** ![tracer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tracer/32/20578_2.png) [@tracer](https://boards.straightdope.com/u/tracer)\ **Post date:** [September 27, 2000, 11:56pm UTC](https://boards.straightdope.com/t/federal-government-vs-states-rights/34074/31 "2000-09-27T23:56:01Z")
Badtz Maru wrote: > [@](#): > > if a state repealed their laws prohibiting marijuana sales and put a stout tax on them they would probably make a lot of money from tourists. What could the federal government do then? What could the Federal government do? This: "Be it hereby enacted by the Congress of the United States that: 1. Each State shall pay a tax of one billion zillion hillion jillion dollars to the United States each year. 2. Each State that prohibits marijuana shall receive a Federal grant of one billion zillion hillion jillion dollars per year." Who needs the Interstate Commerce Clause when you can just _tax_ the states into submission? In a way, that’s how the Federal government got the states to enact a 55 mile per hour speed limit. ---
**Author:** ![MysterEcks](https://avatars.discourse-cdn.com/v4/letter/m/f475e1/32.png) [@MysterEcks](https://boards.straightdope.com/u/MysterEcks)\ **Post date:** [September 29, 2000, 5:55am UTC](https://boards.straightdope.com/t/federal-government-vs-states-rights/34074/32 "2000-09-29T05:55:32Z")
**barbitu8** said: > [@](#): > > You’re using the words “power” and “authority” as synonyms, which they are not. I have the power to break a contract, but not the authority. No, actually I’m not. The difference between “power” and “authority” is the difference between “can” and “may”–authority is _authorized._ The federal government has virtually unlimited power–they control the armed forces, after all, so only armed resistance would be a check. Its authority, however, is limited by the Constitution. (I don’t know when this distinction came about–perhaps after 1787–but in any case the 10th Amendment is clearly talking about authority, regardless of its use of the word “powers.”) Incidentally, the analogy to contract law doesn’t work–as a general rule, there is no law preventing you from breaking a contract, which means you do indeed have the authority to do so. You may well get sued for it and have to pay damages, but that doesn’t mean you may not do it. > [@](#): > > The 10th Amend gives the states the authority to deal with matters not specifically delegated to the fed gvt. You are ignoring the wording of the 10th Amendment, which I posted before, and its potential implications. My point is that it doesn’t have to be interpreted that way. **pkbites** said: > [@](#): > > The state that rebeled (though briefly, for one day I believe) was Nevada. In 1985 or 1986 (not sure which) the state posted 70 on their freeways. I’m thinking there was one which refused to raise its drinking age for a period of time, too. (Yeah, I know, I should figuratively get off my lazy ass and research it.) ---
**Author:** ![barbitu8](https://avatars.discourse-cdn.com/v4/letter/b/839c29/32.png) [@barbitu8](https://boards.straightdope.com/u/barbitu8)\ **Post date:** [September 29, 2000, 12:57pm UTC](https://boards.straightdope.com/t/federal-government-vs-states-rights/34074/33 "2000-09-29T12:57:21Z")
[QUOTE] \*Originally posted by MysterEcks \* \*\ ***barbitu8** said: > [@](#): > > You’re using the words “power” and “authority” as synonyms, which they are not. I have the power to break a contract, but not the authority. No, actually I’m not. The difference between “power” and “authority” is the difference between “can” and “may”–authority is _authorized._ The federal government has virtually unlimited power–they control the armed forces, after all, so only armed resistance would be a check. Its authority, however, is limited by the Constitution. (I don’t know when this distinction came about–perhaps after 1787–but in any case the 10th Amendment is clearly talking about authority, regardless of its use of the word “powers.”) Incidentally, the analogy to contract law doesn’t work–as a general rule, there is no law preventing you from breaking a contract, which means you do indeed have the authority to do so. You may well get sued for it and have to pay damages, but that doesn’t mean you may not do it. I refuse to yield on this point. As to the contract, there are civil laws and criminal laws. Altho you won’t be criminally liable for breaking a contract, you can be civilly liable. There ae laws governing a contract and they are under the classification “contract law.” It’s not just the difference between “can” and “may.” Sure the fed gvt has unlimited power as they control the military. That’s just my point. It’s authority is not limited by the Const., it’s granted by it. The Const. states what powers will be allowed or granted to the fedl gvt, and those powers not specifically allowed are reserved to the states. Powers that are granted is authority. ---
**Author:** ![barbitu8](https://avatars.discourse-cdn.com/v4/letter/b/839c29/32.png) [@barbitu8](https://boards.straightdope.com/u/barbitu8)\ **Post date:** [September 29, 2000, 1:28pm UTC](https://boards.straightdope.com/t/federal-government-vs-states-rights/34074/34 "2000-09-29T13:28:18Z")
Upon re-reading your post, it seems that we basically agree, that power and authority are not synonymous. The analogy between “can” and “may” seems correct. However, the right to have the power is the authority. Thus, the fedl gvt has rights, and so do the states. My reference to a contract is correct. ---
**Author:** ![MysterEcks](https://avatars.discourse-cdn.com/v4/letter/m/f475e1/32.png) [@MysterEcks](https://boards.straightdope.com/u/MysterEcks)\ **Post date:** [September 30, 2000, 5:29am UTC](https://boards.straightdope.com/t/federal-government-vs-states-rights/34074/35 "2000-09-30T05:29:15Z")
**barbitu8** said: > [@](#): > > As to the contract, there are civil laws and criminal laws. Altho you won’t be criminally liable for breaking a contract, you can be civilly liable. There ae laws governing a contract and they are under the classification “contract law.” Yeah, I know–I had contract law in law school and everything. Breach of contract is not prohibited by law. Civil liability is not a punishment–it is a way of making the aggrieved party whole monetarily. It is a price to pay for not performing a contract as agreed, but that does not make it a prohibition. The analogy is therefore _not_correct. > [@](#): > > It’s authority is not limited by the Const., it’s granted by it. I would put it that the federal government was prohibited from exercising powers–a limitation–that in the experience of the Founding Fathers had been exercised by (or in the name of) the British monarch and/or Parliament. But I come at this from an anti-centralization viewpoint–it is easier to decide that additional powers have been constructively ceeded to the feds than it is to find a prohibition has been somehow waived. Or so I believe, anyway. > [@](#): > > However, the right to have the power is the authority. I suppose it could be defined that way, whether I like it or not. I still prefer the distinctions I have made, since otherwise you have to make a further statement–governments have rights _vis a vis themselves._ Otherwise the formulation makes it sound as if governments have rights in terms of their own citizens, which I don’t believe they do–in our system they are creatures of the people rather than independent entities. (Hence the titling of criminal cases “People versus \_\_\_\_\_” in some jurisdictions.) That’s how it’s supposed to work, anyway–granted that reality and theory don’t always mesh. Not that any of this really has much bearing upon the OP. I still say the only remedy is to work to elect politicians at the federal level who aren’t all hot to use the loopholes to blackmail states into following federal paternalism. ---
**Author:** ![pkbites](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pkbites/32/204_2.png) [@pkbites](https://boards.straightdope.com/u/pkbites)\ **Post date:** [September 30, 2000, 6:37am UTC](https://boards.straightdope.com/t/federal-government-vs-states-rights/34074/36 "2000-09-30T06:37:01Z")
I’m thinking that the feds raised the speed limit from 55 to 65 in 1987 because they might have felt the states might win a case against them and threw them a 10mph bone. The total national speed limit was repealed in 1995 by a Republican congress. An act Democrats refused to do for 22 years, but will take the credit for because Mr. Bill signed it! :rolleyes: ---
**Author:** ![pantom](https://avatars.discourse-cdn.com/v4/letter/p/34f0e0/32.png) [@pantom](https://boards.straightdope.com/u/pantom)\ **Post date:** [October 2, 2000, 12:32am UTC](https://boards.straightdope.com/t/federal-government-vs-states-rights/34074/37 "2000-10-02T00:32:49Z")
The first three words of the Constitution are “We the people” for a reason: it was a direct repudiation of states’ rights as enshrined in its predecessor, the Articles of Confederation. The Constitution is a compact between the **people** of the US, not the states. A very important distinction. (Which is probably why the 10th Amendment reads the way it does, as pointed out by **MysterEcks**.) As for highway funding: For some reason, as time has marched on, the states have ceded to the Feds the right to fund just about anything, no matter how local the concern is. Roads used to be a strictly local concern. Eisenhower built up the interstate highway system as a way of getting military supplies moved quickly around the country. It has morphed into a program that the states use to build roads that they should be building themselves with their own state money. If this hadn’t happened, the threat alluded to in the OP would be empty. Which, by the way, means you’re more than likely quite wrong, **pkbites**. The Feds didn’t have to throw the states a bone because Federal money built the roads and they remain Federal roads forever after. So only the Federal government gets to set the standards on those roads. [Previous page](https://boards.straightdope.com/t/federal-government-vs-states-rights/34074.md?page=1)