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Unpublished Paper
States Rights? What States’ Rights?: Implying Limitations on the Federal Government from the Overall Design.
ExpressO (2008)
  • Calvin H. Johnson, University of Texas at Austin

States Rights? What States’ Rights? Implying Limitations on the Federal Government from the Overall Design.

Calvin H. Johnson, University of Texas


In recent years, the Supreme Court has been finding restrictions on the federal government in favor of the states on the basis of the overall design of the Constitution, but not resting on any specific text. The historical Constitution, however, overall was a nationalizing weapon directed against the states, written to empower an imbecilic and impotent confederation-level government, and to end the supremacy of the states. If one is going use the grand design of the historical Constitution to generate a rule, the result should favor the federal government in a conflict with the states.

The written Constitution has only one states’ right in it, which that a state may veto any congressional proposals to take away territory. The written right is not very important in fact. Vermont was formed in spite of New York’s opposition. West Virginia was formed by a provisional government in Wheeling, without the consent of the Richmond, Virginia state government, then in rebellion.

The doctrine that Congress has only the powers enumerated in article I, section 8 is a dubious doctrine without textual support. The Founders’ took out the Articles of Confederation language that Congress would have only the powers expressly delegated to it because the clause had had “proved destructive to the Union.” The Congress plausibly preceded the formation of the states and formed them, and, in any event, it did not achieve its power by decision or delegation from the states. On its own terms, the Constitution rests for its legitimacy upon “We the People,” and not upon “We, the States” The Constitution had to rest upon the people in order to give it supremacy over ordinary state law and state constitutions.

The pivotal voter was deeply within the nationalist coalition because the Constitution was ratified by delegates representing two thirds of the population. Opposition to the Constitution nearly disappeared by 1790. “Pivotal voter” talk does not reduce the Constitution’s nationalistic vigor.

The term “states’ rights” needs to be abandoned because it is individuals and not entities that have rights. States’ rights have often meant abuse of individual rights, and the term, “states’ rights,” make it harder to see the conflict with real rights.

Righteous anger at the states is a necessary element of the constitutional national revolution. The framers were angry at the states for failure to pay their requisitions and for vetoing the other means by which the national government could make payments on the debts of the Revolutionary war. The Constitution went further than it needed to go to solve the fiscal crisis. Anger prevented the nationalists from reconciling with New York in a way that gave the national congress a source of revenue. The argument over direct tax was just an argument over whether state or Congress would decide what to tax, and not an argument over the amount of tax, which was set by Congress.

The Constitution, like all historical documents needs to be read in the context of the programs it was trying to accomplish. The programs were largely accomplished or abandoned by 1796. Using the Constitution to solve present day problems makes it impossible to understand the Founders on their own terms because they were not trying to solve our problems and their framework of thinking was so different. Still, history is important at least to prevent counterfeit history from binding us.


I. What is the Overall Constitutional Design?

A. What Written Limitations?

1. The Written State Right to Territory.

2. The Enumerated Powers Doctrine.

a . Deletion and defeat of "expressly delegated."

b. Who Made Whom?

B. Constitutional Legitimacy.

C. The Pivotal Voter

D. Let’s Get Rid of “States’ Rights” Usage.

II. The Causes of the Constitution.

A. Necessary Anger.

B. Taxes instead?

1. Unanimity.

2. Direct tax.

a. Direct tax impeded ratification.

b. Direct tax not used.

c. Direct tax not inconsistent with confederate mode.

d. Not much difference between the sides.

C. Does History Matter?

  • Federalism,
  • Originalism,
  • States' Rights,
  • Historicism of the Adoption of the Constitution
Publication Date
February 1, 2008
Citation Information
Calvin H. Johnson. "States Rights? What States’ Rights?: Implying Limitations on the Federal Government from the Overall Design." ExpressO (2008)
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