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State Sovereignty

5 min read

Part of Federalism and exit.

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Every episode (3)

Who argued it

Frank Buckley · William Watkins Jr. · Todd Zywicki

Federalism · COVID-19 · Constitutional Law · Progressive Era · 17th Amendment

Background

The founding settlement

Bob Zadek frames the Articles of Confederation as a compact among states that said nothing about the relationship between the citizen and his or her government; the state constitutions did that. William Watkins Jr. agrees and draws the consequence: under the Articles, Congress could not act directly upon individuals, and the states served as mediating bodies between the people and the government of Congress. Only with the Constitution of 1787 could the national government act directly on individuals. Watkins calls the state’s role as intermediary a great palladium of liberty. Crossroads for Liberty with William Watkins Jr. (2017)

Frank Buckley supplies the term for the arrangement that emerged from Philadelphia in 1787: divided sovereignty. A state would be sovereign with respect to state powers, the federal government sovereign with respect to its powers. Buckley notes that the British found this inconceivable—they could imagine only one sovereign—and that Alexander Hamilton echoed that view at the Framers’ Convention, but that this was not the document that came out of Philadelphia. He adds that state sovereignty later fell into ill repute because of the way it was used by racists in Southern states. Did California Just Declare Itself a Nation-State? (2020)

What eroded it

Zadek marks two dates as a black week in American history: February 3rd, 1913, when the 16th Amendment was ratified, and 1937, when Franklin Delano Roosevelt announced his plan to pack the Supreme Court, threatening to increase the number of justices to 15 unless the court backed down. Zadek says the court did back down, and that the New Deal legislation changed the country forever. Crossroads for Liberty with William Watkins Jr. (2017)

Randall Holcombe’s episode is described as an exploration of how constitutional changes like the 17th Amendment and landmark Supreme Court cases like Munn v. Illinois eroded state sovereignty and economic freedom, leading to the expansive administrative state seen today. Randall G. Holcombe on Liberty in Peril (2019)

In the FBI episode, the erosion is criminal rather than economic. Zadek argues the Constitution does not give the federal government plenary power to enforce criminal laws and is specific about which federal crimes there should be—piracy, counterfeiting—but that over decades and centuries the federal government, with the aid of the Supreme Court, has enacted an enormous number of criminal statutes. Federal fraud is essentially undefined, turning on the means: use of the mails, interstate commerce, the telephone. Zadek invokes the common-law principle that nobody should be prosecuted unless they knew what they were doing, intended to commit the crime, and the crime is readily defined, and says that is what has been lost. The FBI: Our Uninvited Federal Police Force (2022)

Remedies proposed

After Sarah Stillman’s interview on minors placed on public sex offender registries, Zadek reflects on the death of Justice Antonin Scalia and proposes structural changes to the Supreme Court—increasing the number of justices and implementing term limits—to reduce the concentration of federal power and restore state sovereignty. In the same episode he argues that voting rights, abortion, affirmative action and similar issues were, as the founders saw it, the province of the states, and that Scalia’s passing is a clarion call to diminish the power of a single Supreme Court justice, of the president in the appointment process, and of the federal government over the states. He proposes undoing the 17th Amendment. Sarah Stillman on Minors on the Sex-Offender List (2016)

Buckley’s remedy is different in kind. Asked how radical it is for a state to consider itself a nation-state, he answers that coupling “nation” with “state” suggests a degree of independence, and that Gavin Newsom’s talk of California going its own way on the coronavirus epidemic is benign—part of the Trump administration’s approach of letting states compete, which is what federalism was all about. He calls the aim a recovery of the original understanding of American federalism in which states would be sovereign within their scope of competence, and invokes the laboratory of the states: from competition between states, the best ideas emerge. Did California Just Declare Itself a Nation-State? (2020)

Across episodes: the same question, differently argued

The question—whether the states retain a sovereignty the federal government has absorbed—runs across the 2016, 2017, 2019, 2020 and 2022 episodes, but the treatment shifts. In 2016 Zadek’s remedy is judicial: term limits, a larger court, undoing the 17th Amendment. In 2017 the frame is historical, with Watkins defending the Articles as a palladium of liberty and Zadek dating the loss to 1913 and 1937. By 2020 Buckley reframes the same complaint as divided sovereignty and treats state independence as ordinary federalism rather than a rupture. The 2022 episode moves the argument from constitutional structure to criminal law, locating the loss in an ill-defined federal criminal code. No excerpt shows the guests responding to one another’s arguments.

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