The Battle over State's Rights (Part II)

The Warren Court in Heart of Atlanta Motel v. United States and Katzenbach v. McClung used the Commerce Clause to uphold the Civil Rights Act of 1964. These cases were rightly decided, but by failing to apply the Fourteenth Amendment to these cases, it gave the Commerce Clause even more power. In South Dakota v. Dole the Court held that coercive tactics used by Congress were Constitutional. In this case, Congress was going to withhold a portion of South Dakota’s highway funding if they did not up the drinking age to 21. The Court held since the amount of funding to be withheld was only 5%, this did not amount to coercion, but incentive.

In the past several decades the Supreme Court has tried to rein in some federal powers. Justice O’Connor in Gregory v. Ashcroft says federalism “assures a decentralized government that will be more sensitive to the diverse needs of a heterogeneous society; it increases opportunity for citizen involvement in democratic processes; it allows for more innovation and experimentation in government; and it makes government more responsive by putting the States in competition for a mobile citizenry.” Furthermore “the principal benefit of the federalist system is a check on abuses of government power.” In the same case Justice White’s dissent points out “As long as the national political process did not operate in a defective manner, the Tenth Amendment is not implicated.” In this case the Court held that the Federal Age Discrimination and Employment Act of 1967 did not apply to Missouri placing retirement age limits on Judges.

In New York v. United States the Court held that Congress could not “coerce” States to participate in their mandated law to get rid of low-level radioactive waste. Justice O’Connor explains how delegates chose between the Virginia Plan and the New Jersey Plan at the Constitution Convention. The Virginia plan was chosen because the “expressed objection the New Jersey Plan was that it might require the Federal Government to coerce the States into implementing legislation.” Hence, the “Convention opted for a Constitution in which Congress would exercise its legislative authority directly over individuals, rather than over the States.” Justice White in his dissent claims that the Tenth Amendment does not apply because “We face a crisis of national proportions” and he further laments “For me, the Court’s civics lecture has a decidedly hollow ring at a time when action, rather than rhetoric, is needed to solve a national problem.” Justice Stevens said “Nothing in that history suggests that the Federal Government may not also impose its will upon the several States as it did under the Articles.” Of course, not a single person has been endangered because of this 1992 ruling. Yet, liberals suggest the law is necessary merely because the case was perceived to be a “national crisis”.

In Printz v. United States in 1997 the Court held that Congress could not commandeer state officials to enforce the Brady Act to do background checks for handgun purchases. This was a weird case because liberals used conservative arguments and vice versa. Scalia uses the same argument previously proposed by O’Connor saying “The Framers explicitly chose a constitution that confers upon Congress the power to regulate individuals, not States.” Scalia actually point out what “destroys the dissent’s Necessary and Proper argument however, is not the Tenth Amendment but the Necessary and Proper clause itself.” The dissent provides the history lesson in this case. Justice Stevens correctly points out in Federalist Papers 27, 36, 44 and 45 provides examples of having state officials collecting federal taxes. Stevens also points out several examples of state officials carrying our federal laws such as naturalization lists, alien lists, and vessel seaworthiness. Stevens continued by claiming “In the name of States’ Rights, the majority would have the federal government create vast national bureaucracies to implement its policies. This is exactly the sort of thing that the early Federalists promised would not occur.” Yes, that is a liberal Justice providing a history lesson referencing Federalist Papers and worrying about the size of government. As I said, this case was a like reading a Twilight Zone script. Despite Stevens convincing arguments, Justice Thomas in his concurring opinion makes the most convincing argument saying the Federal Government had no right to regulate guns because the Second Amendment provides persons the right to “keep and bear arms”. However, that argument was never raised by any of the parties during written or oral arguments. Stevens brings credence to Thomas’s argument by saying “Unlike the First Amendment, which prohibits the enactment of a category of laws that would otherwise be authorized by Article I, the Tenth Amendment imposes no restriction on the exercise of delegated powers.” So, if the First Amendment is applicable to curb federal power, maybe the Second Amendment could curb federal power too? That was a good question at the time, but this question was not answered until more recent cases Heller v. DC and McDonald v. Chicago.