Constitution Watch: States and Subsidiarity

The case of Jones V. Bates, now filed in the U.S. Supreme Court, prods us once again to ponder the idea of states. By states, I mean those fifty American communities, in one of which we reside and among all of which we are free to roam. Their collective title is partly unum and partly pluribus, and not just one or the other. States, thought of politically, bring to mind “states’ rights.” The unpopularity of that phrase, associated with attacks on racial freedom in the ‘50s and ’60s, today hinders serious discussion of the importance of states to our freedoms generally. States, of course, don’t have “rights,” nor are they sovereign entities after the pattern of the German duchies erased by Bismarck’s First Reich. But states do have powers. The Tenth Amendment declares them to have all powers that the Constitution does not specifically delegate to the federal government or expressly prohibit them from having. The bottom line: the Tenth Amendment reserves a large reservoir of power to the states “respectively”—each alone, not as part of a monolith, “or to the people,” the power base of individual men and women.

But many decisions of the Supreme Court from the ’30s forward have ignored the Tenth Amendment, and transformed states into agencies for the carrying out of Congressional acts not remotely among “the powers delegated to the United States.” Moreover, the Supreme Court has repeatedly invented powers it claims for itself to override decisions made by the Tenth Amendment’s “people.” Cases such as Roe v. Wade have created a broad popular assumption that the communities we call states are simply part of a national uniform legal regime.

Hence I cannot but rejoice that the state of California, in Jones v. Bates, now seeks hearing by the U.S. Supreme Court. Bear with these facts: In recent decades Californians had come to believe that the ability of their state legislators to serve an unlimited number of terms, to establish their own retirement system, and to hire staff and support systems at great public expense, had created an entrenched incumbent class making the electoral system less free and competitive. So a referendum was proposed to amend the California constitution to limit senators to two terms and assemblymen to three. A coalition of senior legislators sued in the state courts to have the law declared violative of the First and Fourteenth Amendments to the federal Constitution. The California Supreme Court rejected them and upheld the new law. The losing legislators now started their effort all over again and sued in a federal court in California— and won. That court unaccountably took it upon itself to rule exactly contrary to the California Supreme Court. And on October 7 the frequently radical Ninth Circuit U.S. Court of Appeals held the people’s term limit amendment unconstitutional. The state, in Jones v. Bates, has begged the U.S. Supreme Court to nullify this bizarre federal court proceeding.

Yes, all this does indeed focus our thoughts on states, and other intermediary bodies that protect local interests against two related evils—the arbitrary imposition of federal power on local affairs, and the saddling of the entire nation with a federal rule invented to take care of a local affair. Much has been written about the value of intermediary structures in our society—the family, church, and others that serve social needs but are private, not governmental (see, for example, Gaudium et Spes). All of these institutions create space between person and state, and serve as buffers against untoward thrusts by the government. We should regard the Tenth Amendment as clothing the states in the character of major intermediary structures between the people of a political community and the national government. Just as the Constitution’s separation of powers is designed to avoid undue accumulation of power in any one branch of government, so the concept of federalism is designed to bar the total accumulation of power in the national government— be it in Congress or the Supreme Court. It is to avoid the further advance of “the universal homogenous administrative state” that a revival of the Tenth Amendment is imperative.

Happily, there are some signs of that revival. The resolve of the people of California to limit the terms of their own legislators commendably draws our attention to the common sense, in many matters, of acknowledging the right of a people within a state to manage as their own wisdom dictates. Two years ago, the Supreme Court, in United States v. Lopez, struck down an act of Congress to create “gun-free school zones” in every public school district in the nation. The government said the act was justified by that section of the Constitution that gives Congress authority to “regulate commerce  . . .  among the several states.” Five justices of the Supreme Court said that the act regulates no commercial activity and was in no way connected with commerce. The court tellingly quoted Madison’s phrase from The Federalist, that “the powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite.”

If in Lopez the court (but only by a one vote majority) took a stride toward setting back the “universal, homogenous administrative state,” it took a greater stride in its June decision in the assisted suicide cases. Here, had the court been faithful to its rationale in its abortion decisions, it would have set down a nationally effective ruling that state statutes barring assisted suicide are unconstitutional. Instead, it upheld a right in the states to choose life protective policies. While the anti-life forces will now, in every state, press for repeal or modification of the assisted suicide statutes, at least the option to defend them will not have been foreclosed by dictates from Washington.


William Bentley Ball was one of the nation's foremost Catholic constitutional lawyers. He died in 2000.

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