Debating Federalism: Conservative False History and Hypocrisy vs. Progressive Collaborative Federalism

Conservative state leaders have promoted legislation in states across the country claiming that the health care reform law is an unconstitutional overreach of federal power.  While just a handful of the bills were enacted (and most were roundly rejected in states where they were introduced), these attacks on the federal health law are the most prominent example of increasing right-wing legislative agitation declaring various federal laws and actions a violation of the constitution.

Right-Wing “States Rights” Bills:  Alaska, Arizona, Idaho, Montana, South Dakota, Tennessee and Wyoming have declared that federal firearm regulations don’t apply to weapons manufactured in those states.  Utah has rejected not only the federal health care reform bill, but declared federal lands subject to state eminent domain and asserted the “inviolable sovereignty of the State of Utah under the Tenth Amendment to the Constitution.”  Alabama, Alaska and Wyoming have joined Utah in passing resolutions generally denouncing the supposed violations of their state sovereignty.  And right-wing legislators have introduced bills to institute a “constitutional tender” requiring a gold standard for money in their states, declaring federal cap-and-trade proposals unconstitutional, making it a state crime for federal agents to arrest anyone in a state without permission from a county sheriff, and more generally nullifying claims by the federal government to regulate most interstate commerce.

Challenging the Right-Wing Constitutional Narrative:  The challenge for progressives from this “states rights” movement is not that any of these laws are likely to survive in court, but that conservatives too often get away with claiming to stand for constitutional values without significant challenge from progressives.  The reality is that the right wing has no credibility in promoting their states’ rights arguments and should be challenged more directly.  As this Dispatch will outline, their arguments fail on multiple grounds:

  • First, conservative constitutional history is dead wrong.  The progressive vision of collaborative federalism between federal and state governments clearly reflects the “original intent” of the Constitution’s creators  – including those who promoted the Constitutional Amendments enacted throughout our history.
  • Second, conservative leaders are constitutional hypocrites, talking about “states rights” even as they support federal laws that restrict state authority in order to protect corporate special interests. 
  • Finally, unlike conservatives, progressives practice real respect for state authority by promoting and supporting state innovation and flexibility, a far more compelling practice of federalism than the rigid and false constitutional doctrine promoted by the right wing.

Progressive legislative leaders need to clearly engage the public and promote our story of a Constitution that was meant to promote a vigorous federal power in promoting equal rights and the general welfare, even as federal leaders should respect and strengthen the capacity of states to take action beyond minimum standards set by the federal government.

Tenth Amendment Center - Tenth Amendment Movement
The New York TimesStates’ Rights Is Rallying Cry for Lawmakers

Table of Contents:

- Conservatives Have Constitutional History Wrong

- Conservatives are Hypocrites in Using Federal Power to Undermine State Authority

- Progressives Promote a Collaborative Federalism that Respects State Authority

- Highlighting the Progressive Model of Collaborative Federalism

Conservatives Have Constitutional History Wrong

Conservative activists try to sell a history of a federal government designed to be weak with limited power, where national leaders without sanction by the American people have taken on responsibilities and powers reserved to state governments.  Such a story just flatly misrepresents constitutional history.

The 1787 Constitution Promoted Strong Federal Power:  Even when the Constitution and the initial Amendments were drafted in the 18th century, limited federal power was not what was envisioned by those who drafted.  It was George Washington who deployed troops in Pennsylvania to collect excise taxes on distilleries in the suppression of the so-called Whiskey Rebellion of 1794, John Adams who enacted the 1798 Alien and Sedition Acts to regulate newspapers across the country, and Thomas Jefferson who negotiated the Louisiana Purchase and carved out new states.  And, as the Supreme Court Justices appointed by those founding drafters of the Constitution said in 1819 in their McCullough v. Maryland decision, affirming the wide authority of the federal government:

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.

In fact, the progressive complaint of the period before the Civil War was that federal power was vigorously deployed but for the wrong ends.  The federal government and courts intervened to overturn state debt relief laws meant to benefit small farmers and other debtors and generally attacked other state laws seen as infringing property rights. 

And most obviously, federal government power was used to protect slave owner interests, including overturning state laws in the North seen as impeding the return of runaway slaves.  State laws requiring a fair hearing to establish a former slave status before federal agents could return a free black to the South under the Fugitive Slave Act were struck down by federal courts.  The Dred Scott case outraged Northern voters because it declared that Southern slaveholders could bring slaves into free territories and ignore the laws freeing slaves voluntarily brought into those jurisdictions.

The Civil War and the New Birth of Freedom Expanding Federal Authority:  Where the present-day Tenth Amendment proponents fail history utterly is in systematically denying that the Civil War and the subsequent Amendments enacted ushered in a new Constitutional order in regard to federalism.  (The following history is drawn partly from the Brennan Center for Justice’s A New Birth of Freedom: The Forgotten History of the 13th, 14th and 15th Amendments).

The immediate post-Civil War amendments – the 13th, 14th and 15th -  created a new constitutional mandate of not only freedom and voting rights for freed slaves, but more broadly gave Congress the “power to enforce, by appropriate legislation” (Section 5 of the 14th Amendment)  the protection of the “privileges or immunities” of Americans overall and to protect them from state abuses denying them “life, liberty or property.”

The “founding fathers” of this new post-Civil War constitutional order would back up these Amendments with federal laws of wide scope, including the Civil Rights Acts prohibiting both public and private discrimination and a federal Freedmen’s Bureau that would operate schools, provide health care, and directly operate other programs in states throughout the South.

Senator John Sherman of Ohio, the brother of General Sherman, summarized the expansive “original intent” of those who drafted the post-Civil War Amendments:  “[it] secures to every man within the United States liberty is its broadest terms," with all the enforcement power for Congress needed to make that liberty a reality.   While federal  courts would back off from the expansive meaning in the wake of the Klan-related violence that ended Reconstruction, modern federal laws supporting health care and education provide exactly the same liberty for the American people that those who enacted the Freedmen’s Bureau’s education and health care programs saw as necessary for liberty in the wake of the Civil War.

Enhanced Federal Authority under the Sixteenth and Seventeen Amendments:  Nearly fifty years after the Civil War Amendments, the Progressive era would see new demands for wealth redistribution and stronger federal regulation of corporate power.  These populist demands would be embodied in the passage of the Sixteenth Amendment establishing the income tax and the Seventeenth Amendment allowing direct election of U.S. Senators, which would each further these goals and restructure federalism. 

A federal income tax was recognized as more than a revenue source; by deciding who was taxed and who was not, it would be a tool of regulation by the federal government of the economy as well.   As conservative Seventh Circuit Judge Frank Easterbrook said at a Federalist Society event in 2006, bemoaning this change:

The Sixteenth Amendment gave the federal government the power to control one hundred per cent of the entire economy.  It can tax income.  It can not tax income - achieving its goals via tax expenditures, that is - by encouraging those things that aren't taxed.  It can tax and then subsidize using the dollars that it's just collected from you, or it can grant the dollars back on condition.  So that combination of powers… gives the federal government control over almost anything it chooses to control.


If the Sixteenth Amendment changed the budgetary nature of federalism in favor of federal authority over economic activity, the Seventeenth Amendment, which required the direct election of U.S. Senators, changed the political nature of federalism.  Structurally, “states rights” had their strongest embodiment in the original Constitutional clause that allowed state legislatures to control the election of Senators, meaning that those Senators would beholden to the institutional interests of state governments. 

The direct election of U.S. Senators, joining the direct election of Congressional Representatives, meant that the federal government was now responsible directly to the individual voter and only to the individual voter.  In The Seventeenth Amendment and the Death of Federalism, Professor Ralph A. Rossum notes, again unhappily from his conservative viewpoint, that "the original federal design has been amended out of existence and is no longer controlling—in the post-Seventeenth Amendment era, it is no more a part of the Constitution [than] the Constitution’s original fugitive slave clause."

While conservative courts would resist this progressive constitutional revolution for two more decades the New Deal courts would finally establish the broad principle that popular power expressed at the federal level would trump corporate interests.

Contradictions in “States Rights” Rhetoric:  The fundamental contradiction in conservative constitutional arguments over federalism is that, even as some activists try to ignore every Amendment after the Tenth to sustain their attacks on federal authority, many other conservative activists, including many in the Tea Party movement, are  agitating to repeal the Sixteen and Seventeen Amendments precisely because they admit those later Amendments have eliminated the original limits on federal authority.  And this regret about the passage of the 17th Amendment extends even to conservatives on the Supreme Court; in a speech reported in the Harvard Crimson in 2004, Supreme Court Justice Antonin Scalia said that the 17th Amendment was “a bad idea.”  Ultimately, conservatives can’t claim the enduring importance of the Tenth Amendment while denouncing the later constitutional amendments that superseded it.

Brennan Center for Justice -  A New Birth of Freedom: The Forgotten History of the 13th, 14th and 15th Amendments
Professor Ralph A. Rossum - The Seventeenth Amendment and the Death of Federalism
Federalist Society - Are Constitutional Changes Necessary to Limit Government?

Conservatives are Hypocrites in Using Federal Power to Undermine State Authority

Beyond the false history and contradictions involved in conservative constitutional rhetoric, the reality is that conservatives in history and today have never respected state authority when it is marshaled on behalf of progressive policies.  In fact, despite conservative constitutional history mythology, right-wing legal decisions preceding the New Deal were incredibly hostile to state authority, striking down a series of state laws from the minimum wage to railroad regulations in the name of federal supremacy, preempting any state law that came close to any area of presumed federal authority (whether Congress had created a law in that area or not), and more generally circumscribing state authority under a doctrine called "substantive due process."

Right-Wing Legislative Assault on State Authority:  In the present, nothing illustrates the hypocrisy of the conservative movement on federalism more than the current debate on cracking down on abuses by the financial industry.  Early in this past decade, state predatory lending laws which sought to limit abuses by subprime lenders were shut down by the  Bush Administration using the club of federal power, yet conservative groups largely supported that wildly destructive attack on state authority.  And when progressive federal leaders sought to restore greater authority to state legislatures and attorneys general to target abuses in their states by national banks, conservative elected leaders and organizations lined up to support amendments to undermine that increased state authority over local financial abuses.

As we have described in the past, this is just part of a multi-decade fight by the conservative movement to undermine state authority to act on behalf of workers, consumers, civil rights and environmental protection.  In fact, the conservative majority in Congress voted over 57 times between 2001 and 2006 to preempt state laws, including action to preempt state limits on air pollution, to preempt state regulation of contaminated food, and to block tougher state regulation of Internet "spam."

The Conservative Legal Assault on State Authority:  With pro-corporate appointments to the courts by conservative Presidents, courts not only upheld the preemption of local predatory lending laws, but supported the overturning of pro-union state laws, radically reduced punitive damages against Exxon-Mobil approved under state law, and  exempted medical device manufacturers from liability under state laws if the FDA approved the device.

And this hypocrisy on federalism extends to groups supposedly speaking on behalf of state interests, including the American Legislative Exchange Council (ALEC).  In multiple legal briefs, ALEC has called for using federal law and the federal Constitution to overturn state laws - from striking down Chicago gun regulations to forcing Michigan to allow mail-order wine sellers to sell to their residents from out-of-state to overturning a Massachusetts state law that prohibited state agencies from doing business in Burma.

Conservative Health Care Proposals Highlight Hypocrisy:  Nothing highlights this conservative hypocrisy on state authority more than the health care debate.  Even as the right-wing denounces the recent federal health reform law as violating state authority, the main planks in conservative health proposals proposed by Congressional leaders have been far clearer attacks on state authority.

When conservative leaders controlled the U.S. House of Representatives, they repeatedly approved bills allowing insurance companies to sell across state lines and ignore local state consumer protections.  “These plans will undermine state insurance reform efforts designed to spread costs broadly,” noted Ami Gadhia from Consumers Union, publisher of Consumer Reports, at the time.

Similarly, the other most touted reform proposed by conservative leaders has been to override state medical malpractice laws through "tort reform"  where patients would lose legal rights they previously had under individual state law.  When President Bush was touting “medical malpractice reform,” the National Conference of State Legislatures emphasized its opposition to “any federal preemption of state authority within the civil justice and tort law areas” and the “voiding of state authority and the hard work of so many state legislatures.”

Progressive States Network - The Predatory Lending Bubble and How the Feds Made it Worse
Progressive States Network - The Assault on the New Deal Preemption Standard
Progressive States Network - Hypocrisy of "State Rights" Conservatives on Health Care
U.S. House Oversight and Government Reform Committee - Congressional Preemption of State Laws and Regulations 
Open Salon- What the Right Won't Admit About Tort Reform

Progressives Promote a Collaborative Federalism that Respects State Authority


Progressives should proudly contrast their far more consistent respect for state authority.  While progressives support strong minimum federal standards of protection for individuals and communities, they also far more consistently protect state authority and strengthen state capacity to take action to meet local needs and goals beyond those minimal standards.

The New Deal and The Great Society Strengthened Regulatory and Budgetary Capacity of States:  The New Deal may have strengthened federal action, but it also specifically empowered states to act in areas like the minimum wage and child labor, which previously had been blocked by federal courts, and the New Deal Supreme Court was far more willing to allow states to regulate in areas where the federal government was also taking action.

As we have detailed, progressives have always made strengthening the budgetary capacity of states to act on local problems more effectively a priority.  Under the Great Society, for example, grant-in-aid programs from DC to the states increased 68% in real dollars between 1964 and 1968.  Notably, the federal recovery act promoted by President Obama last year directed most of its dollars not through direct federal programs but through the states where local leaders would have the flexibility to use those dollars to address state budget and job development needs.

Obama Administration Strengthened State Authority:  On the regulatory front, the Obama administration last year emphasized its new commitment to respecting state regulatory rules by issuing a broad Memorandum on Preemption to all heads of executive departments and agencies, ordering them to avoid the preemption language routinely included in Bush-era regulatory preamble statements or in codified regulations unless there is "full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption."  This commitment to respecting state authority was embodied in the administration’s recognizing the authority of California and thirteen other states and the District of Columbia to take action on “clean car” regulations – state action blocked by the previous administration – and incorporating those state standards into its own plan for tighter auto emission and gas mileage standards.

New Federal Health Care Law Embodies Collaborative Federalism:  As an example of progressive federalism, even as the new federal law provides for stronger minimum standards for health care, it was designed to give great flexibility to states on how implementation would work in each state and was designed to strengthen the capacity of states to address specific local needs.

As the National Academy for State Health Policy describes, “States will have a significant role in the implementation of federal health reform.”  This includes flexibility in how to design the health exchanges where consumers will purchase insurance, full preservation of state authority to establish stronger consumer protections than any federal standards, and even the ability to opt-out of the whole federal system where states can demonstrate a plan to achieve the goals of broader coverage more effectively.  This latter option, described in the bill's Sec. 1332, makes it possible for states to combine all available subsidies that would normally flow to individuals and businesses into an alternative state system.

Progressive States Network - Restoring State Authority:  An Agenda to Restrict Preemption of State Laws
Progressive States Network - Obama Affirms Importance of State Policy Innovation by Making California Emissions Rules a National Standard
David Walker - The Rebirth of Federalism
The White House - Memorandum on Preemption
National Academy for State Health Policy -  Supporting State Policymakers' Implementation of Federal Health Reform

Highlighting the Progressive Model of Collaborative Federalism

What this history emphasizes is that progressives need to more aggressively challenge conservative posturing that they are the defenders of federalism.  Progressives can highlight not only that conservatives promote a false history to justify their attacks on health care and other legislation, but they also practice a deep hypocrisy in failing to respect the state authority when they themselves control the levers of federal power.

Progressives should more clearly highlight the principles of collaborative federalism that have been embodied in progressive practice since the New Deal: 

  • respect state regulatory authority to take action beyond minimum federal standards;
  • provide federal funding to strengthen state capacity, and;
  • design federal programs to allow flexibility in state implementation to meet local needs.

Ultimately, the American debate over federalism was never supposed to be about “states rights” – as if the rights of one specific government body over another was some sacred principle – but rather about how best to embody the will of American voters to address national goals while preserving the flexibility and liberty to meet specific local needs within that national framework. 

The rigid legalistic federalism promoted by the right is wrong not only on historical grounds, but also because it fails to provide a practical framework for addressing the creative tension between national goals and local needs.  Instead, the progressive model of collaborative federalism continues to be the only framework to address that tension and which reflects the rich tradition of constitutional reform that has brought this nation from its founding through the Civil War to the New Deal and into the present day.