How the Supreme Court Denies Federalism and Liberty (Part I)

The Supreme Court has denied state rights time and time again. The Tenth Amendment says: “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”. The Court circumvents state rights through the following techniques: making up imaginary rights, Constitutional avoidance, coercion, mitigating the strength of the Tenth Amendment, the commerce clause, treaties, the spending clause, the general welfare clause, the necessary and proper clause, and the supremacy clause. To view how the Court uses imaginary rights such as the right to privacy to breach State rights please read my articles: “The Supreme Court on Sex, Obscenity, and Marriage” or the “Liberal Evolution of Due Process”.

The 1906 case between Hunter v. Pittsburgh the Court set the standard that state sovereignty ruled over local governments and hence state laws trump local municipality laws. “Although the inhabitants and property owners may, by such changes, suffer inconveniences, and their property may be lessened in value by the burden of increased taxation, or for any reason, they have no right, by contract or otherwise, in the unaltered or continued existence of the corporation or its powers, there is nothing in the Federal Constitution which protects them from these injurious consequences. The power is in the state, and those who legislate for the state are alone responsible for any unjust or oppressive exercise of it”. This decision is important because the outcome of this case is very similar to how the Supreme Court decides cases involving the federal government and the states: Federal government laws trump state laws.

The 1920 case Missouri v. Holland held that a Treaty (Migratory Bird Treaty Act of 1918 - MBTA) trumped the Tenth Amendment via the supremacy clause. The MBTA restricted hunting of migratory birds. Congress purposefully made a Treaty with Canada (England) to avoid or circumvent a Tenth Amendment fight. The state of Missouri argued that the Federal government could not create a Treaty over the subject of birds. Justice Oliver Wendell Holmes wrote the majority opinion stating that treaty provisions were not questionable by the states. Holmes also went on to declare that the Constitution is a living document and hence, allowed to change over time. The Missouri ruling led to proposed amendments that would limit the scope of Treaties created by the executive branch to breach state rights (they never passed). Missouri has not been overruled but recent precedent has probably made it moot. For instance, the 1914 decision in Bond v. United States the Court held that the Chemical Warfare Act could not be applied to the States. Clarence Thomas was the first to place a standard on treaties when he wrote that a treaty cannot regulate “purely domestic affairs”. Scalia called Holmes’s opinion in Missouri as “unreasoned”. Although Chief Justice Roberts used Constitutional avoidance and declined to define limits of Treaty power (as Thomas tried), it was clear limits existed based on the 9-0 unanimous decision.

Constitutional avoidance was used in the 1936 case Ashwander v. Tennessee Valley Authority (TVA). The Court avoided addressing the challenge to the Constitutionality of the government program (TVA): Does the Federal Government have the right to create an energy company to compete against the private sector? Instead, the Court upheld Congress’s authority to generate electricity by validating its business contracts. The Court also concluded Congress had commerce authority to construct a damn to create electricity. Justice Brandeis concluded that the plaintiffs had no right to interfere in corporate governance under the substantive due process of the law. Brandeis further concluded due to separation of powers that one branch of government should not “encroach upon the domain of another”. Brandeis authored a doctrine of seven rules outlining a convoluted theory called Constitutional avoidance which was used to bypass questions placed before the Court. Although the government has no Constitutional authority to create an electricity company, through avoidance the Supreme Court implicitly granted the Federal Government the authority to do so. Brandeis separation of powers argument is hard to swallow. According to Hamilton in the Federalist Papers, the goal of the Supreme Court is to provide a check and balance over the Legislative branch to ensure they are not passing unconstitutional legislation.