Power Play: Government Power is Federal and State

When we consider government power, we are likely to think of Congress or the president (especially during an election year). But a great deal of power resides in the states as well, and there is a continuing and lively contest between state and federal governments.

The issue of power, especially the threat of a struggle between federal and state governments, was of great concern to America’s founders. They distrusted a single government power and one major goal of the Constitution was to prevent the tyrannical type of government that the British had exercised over the colonies.

Concern over a too-powerful federal government caused several well-known delegates, including Thomas Jefferson, Patrick Henry, and Samuel Adams, to oppose adoption of the Constitution in 1787. They passionately argued that the as-is Constitution would eventually lead to a strong, centralized state power which would destroy the individual liberty of the people.

The Tenth Amendment: Defining the Limits of Federal Power

Largely because of the intellectual influence and persistence of Jefferson and his group, the Tenth Amendment was added to the Constitution of 1787 as part of what is commonly called the ‘Bill of Rights.’

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.

States’ Rights

One facet of the debate over states’ rights is essentially the same issue the founders wrestled with: how to distribute power and responsibility so as to strike a balance between limiting federal power and maintaining the advantages of a unified economy and united nation.

States’ Rights also become an issue when the beliefs or priorities of voters in individual states conflict with federal law or policy – especially in the many areas not explicitly covered in the Constitution.

• One of the most recent challenges to states’ rights has been the debate over gay marriage. At stake is an individual state’s right to decide its own definition and laws regarding marriage, which are not mentioned in the Constitution

• After President Bush blocked federal stem cell research, California's voters passed an initiative to fund stem-cell laboratories

• While the federal minimum wage hasn't budged since the middle of the Clinton era, 13 states and the District of Columbia have raised their own minimum wages.

• New York's attorney general Eliot Spitzer evoked state’s rights when he used state regulations to prosecute corporate abuses that George W. Bush's Department of Justice would not.

2008 Supreme Court decision on States’ Rights

Debates about states’ rights reveal a philosophical divide between those who prefer national standards and those who prefer a more flexible state-oriented, or ‘federal,’ approach. Some make it all the way to the Supreme Court, where Danforth v. Minnesota was decided in February 2008.

At issue was whether state courts could apply new constitutional developments to already-decided criminal cases. In the case, Stephen Danforth was convicted of sexually abusing a child in 1996. Years later, in 2004, a Supreme Court decision enhanced the right of defendants to confront their accusers in open court. Since the six-year-old victim had not appeared at the trial, having given a videotaped interview, Danforth petitioned for his rights. 

This sort of retroactive application of rights is not allowed at the federal level, so the Supreme Court decision was about the states. The Court decided 7 to 2 to give state criminal courts the right to apply new constitutional developments retroactively. 

The majority opinion was based on the Tenth Amendment. Justice John Paul Stevens spoke for the majority when he explained that “States are independent sovereigns with plenary authority to make and enforce their own laws as long as they do not infringe on federal constitutional guarantees.”

The minority, made up of Chief Justice John G. Roberts Jr. and Anthony M. Kennedy, argued that federal law is supreme. Roberts warned that the decision undermined The Supreme Court’s “role under the Constitution as the final arbiter of federal law.”

The limits of federal power and the issue of states’ rights is a constant debate, as controversial now as it was in 1787, when Thomas Jefferson refused to sign the Constitution without the promise of a Bill of Rights

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