Dissolving Political Bands: How Federal Enforcement Powers Trump the Tenth Amendment

As this nation concludes the celebration of its birth 237 years ago, it also commemorates the sesquicentennial of two enormous events that advanced the opportunity for such celebration.   One hundred and fifty years ago, General Grant accepted General Pemberton's full surrender after the devastating siege at Vicksburg.   While the terms included all munitions, out of character for General Grant, rather than his standard "Unconditional Surrender," he paroled the Confederate soldiers as he had no desire to transport, feed, clothe and care for 30,000 more men.  The victory at Vicksburg secured the Mississippi River to the Union and ultimately elevated Grant to General in Chief of the Union Army.  It was an essential victory in the Civil War.

As the Army of the Tennessee hunkered down in Mississippi, the famous three day battle of Gettysburg was underway in Pennsylvania.  That would end with Lee's retreat after three brutal (and somewhat indecisive) days of fighting.  Just as the Battle of Antietam provided Lincoln with the opportunity to issue the Emancipation Proclamation the year before, the Battle of Gettysburg followed by the fall of Vicksburg gave the president the opportunity to remind Americans of their identity along with the decisive goals of the war.  In mourning these brave men, a grateful nation promised to pursue their fight so that they would not die in vain.   Between the roughly 18,000 dead or wounded in Vicksburg and the 51,000 in Gettysburg there were twice as many casualties in those two battles than for both sides combined in the entire Revolutionary War.  This sacrifice had a purpose; the Civil War would forever change this nation and hold it to the promise espoused in the second sentence of the Declaration of Independence we continue to aspire to achieve: that the equality of all is a self-evident truth.

Though the guns have silenced, the fight is not yet over.  In the case of Shelby County, AL v. Holder, Justice Roberts speaking for the majority of the Court declared that the 15th Amendment was not designed to punish for the past, but to ensure a better future.  This is an astonishing rewrite of history because the 13th, 14th, and 15th Amendments were, without question, war reparations designed unquestionably to punish for the past.  The drafters of these Amendments did not carry Lincoln's malice-free hearts; they intended to alter the relationship between the states and its federal government.  John Bingham and Thaddeus Stevens sought to rectify past wrongs by incorporating the first 8 Amendments of the United States Constitution to the states and, to protect civil rights both men knew would be ignored because they had been ignored.  They were architects of a military occupation of the states formerly in rebellion.  Indeed, the same men who drafted the Amendments sought to impeach President Johnson for failing to enforce radical reconstruction of the South through occupation of martial law.

The men who drafted and pushed through these Amendments were not stupid and they were not naive; they were skilled lawyers grounded in constitutional law.  Having lived through war, they were determined to dictate the peace.  Enforcement of the Amendments would prove challenging due, in large part, to failures of the Johnson administration in advancing Reconstruction.  By the time the Grant Administration issued the Enforcement Acts seeking to guarantee the vote to African Americans and quell the rising KKK, the rest of the country was tired and just wanted to move on.  Without denying the overall racist tendencies of the majority population that prevented its full impact, the 15th Amendment was originally intended as punishment.  Given the high numbers of African Americans in the Southern states: roughly half the population of Alabama, Florida and Louisiana and more than half of South Carolina and Mississippi, it was intended to entrench an empowered electorate and a truly republican form of government where previously an oligarchy existed.

Justice Roberts, and the Court, in saying otherwise is deluded.  Indeed, this is not the first time the Court has confused the purpose and intent of the Reconstructionist Amendments.  While early justices (who also rode the circuit) seemed to grasp the metamorphic change wielded by the amended Constitution, See, i.e.  United States v. Given, 25 F.Cas. 1324 (1873) and this blog post, within short order, the Court grew fearful, weak and further from the directive of the revisions - indeed all of its incorrect decisions on the 14th Amendment have since been overturned. See, The Slaughter House Cases, 83 U.S. 36 (1873);  United States v. Cruikshank, 92 U.S. 542 (1875), and Plessy v. Ferguson, 163 U.S. 537 (1896).  To suit its own philosophy rather than the document it is entrusted to uphold, the Court then, as now, glorified the Revolution against Great Britain without so much as a head nod to the required sacrifice of the Civil War where the victorious Union literally rewrote the rules of government.  The original Constitution was a compromise to unify Northern and Southern interests; the Reconstructionist Amendments were the bounty of war victory and did not need to compromise much.

Noting only the 15th Amendment - nothing within it took away state powers; states were still free to establish elections, set standards for voting age, prohibit foreigners (and, as was clear from Congressional banter at the time, women) from voting, but what they could not do was discriminate on the basis of race, color or former condition of servitude which included both slaves of African descent and indentured servants, as both slavery and indentured servitude were outlawed under the 13th Amendment.  And to ensure that discrimination did not occur, Congress was authorized to enforce the Amendment by any appropriate legislation. (As an aside, while both contain identical language on enforcement, note that the 15th Amendment prohibits discrimination in all elections, but the 24th Amendment prohibits poll taxes only in federal, but not state elections.  Putting aside whether states would be wise to establish poll taxes, the 24th Amendment recognizes that the states reserve the power to determine certain aspects of their own elections - the question under the 15th Amendment deals exclusively with race, color and former condition of servitude, not poverty).

The original Framers constrained the powers of the federal government; but for the first time in the 13th Amendment, the Constitution granted new powers to the federal government as against the states (in favor of the people).  How anyone can interpret the 10th Amendment pre-1868 and post-1868 the same on citizenship, due process, equal protection of the laws, voting rights, and slavery of any kind identically strains the imagination.  The Reconstructionist Amendments delegated enforcement authority to the Congress thus any power reserved to the states must succumb to the supremacy of the federal government. 

In Shelby County, the Court says that the Voting Rights Act of 1965 was unusual.  The truth is that the failure of certain jurisdictions to comply with the mandates of the federal Constitution was unusual.  Defiance required significant enforcement legislation.  It takes an enormous leap of constitutional jurisprudence to declare that when the duly elected legislature passes a bill into law or reauthorizes a law for an extended period that this, somehow, is "inappropriate."  Much of the legislation emanating from Congress is truly inappropriate such as the establishment of all-powerful FISA and Immigration courts none of which is subject to Article 3 judicial review.  But guaranteeing the fair access to the polls can never be inappropriate.

Since the ratification of the 10th Amendment, Amendments to the Constitution have shifted power from the state both to the federal government and to the people.  Beginning with the Reconstructionist Amendments, the trend continued with the 17th Amendment decommissioning state powers by granting direct election of United States Senators.  The 19th, 24th and 26th Amendments all contain enforcement language similar or identical to the Reconstructionist Amendments.  Curiously, the now repealed 18th Amendment granted concurrent jurisdiction to enforce prohibition of alcohol.  This language is in direct contrast to the supremacy language of the 13th, 14th, 15th, 19th, 24th and 26th Amendments, all of which relate to individual rights, several relate to voting privileges and election of representatives.  Within the body of the original document, the federal government guarantees to every state in the Union a republican form of government implying by its very nature that citizens retain the right to vote for their elected officials who will, in turn, represent them according to law. US Const. Art IV sec.4.  Amendments to the Constitution duly ratified indicate that the federal government seeks to abide that promise even if it requires intrusion into policies traditionally held by the states when those states fail to protect liberty interests. 

So, the Court is simply wrong in determining that the Amendment was intended benevolently.  It does not guarantee individuals the right to vote - it prohibits state discrimination in voting practices.  If it were seeking to "ensure a better future" as the Court now claims, it would have been worded differently.  It was intended as punishment, specifically to restrict powers of states when they restricted the voting rights of the citizens.   The Voting Rights Act of 1965, including the now defunct Sec. 4, is appropriate; the issue is cleaner than the Shelby County case would suggest - the Court has repeatedly stated that it will not second guess Congress in its determination of policies that otherwise abide by the Constitution.  Why some legislation, for example creating federal crimes where once only states had power to punish can be considered "appropriate" while others such as enforcing the 15th Amendment's promise "inappropriate" simply because the Court disfavors the data used to establish the parameters of the law is preposterous.

More preposterous still is the inane and unsupportable notion that the state governments and the federal government are equal sovereignties; they are not and never have been.  States surrendered significant powers in exchange for an organized Union; the federal government surrendered little and, indeed, averred in the 10th Amendment that ONLY powers not delegated to the United States would be reserved to the states - it does not say that the states retain every single power they had at the time of entry into the Union or that they would continue to retain power despite amendment to the Constitution.  The United States delegated to the federal government the enforcement powers of the 13th, 14th, 15th, 19th, 24th and 26th Amendments ergo states no longer reserve those powers.  This has nothing to do with a love of strong central government or a diminution of federalism; it is simply the language of the Constitution.  The Court was dead wrong in deciding otherwise.

As this sesquicentennial comes and goes - and lingers - the meaning and purpose of those tens of thousands of men dying on battlefields in Mississippi and Pennsylvania, that sacrifice was to ensure the more perfect Union James Madison envisioned.  The intent of the original Framers was to establish a nation without ethnicity, without religion, without class where all who came could develop their potential.  It would take a Civil War and some changes to the Constitution to make that real on paper; it will take the continued will of all of us to envision and aspire to continue to improve upon this Union to ensure that all are free to be who they are, fully equal under the law and in the eyes of their countrymen and women.   Those who signed the Declaration of Independence had no idea how it would all resolve.  Those who lived 150 years ago had no idea that the war would continue for two more years; only after it ended could they see the significance of Vicksburg and Gettysburg.

As illuminated by Abraham Lincoln in memorial to the events that would turn the tide of war and ultimately secure Union victory giving us all this continued opportunity to improve upon our humble beginnings:

Four score and seven [today: eleven score and seventeen] years ago our fathers brought forth on this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

But, in a larger sense, we cannot dedicate, we cannot consecrate, we cannot hallow this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.

Truer and more appropriate words were never uttered.  In independence there is liberty; in liberty responsibility; in responsibility battles; in battles victories; in victories sacrifices; in sacrifice resolve.

Depending on the People: 100 Years of the 17th Amendment

In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. 

- James Madison: Federalist 51

The Constitution sought to include both state governments and the people in the two houses of Congress.  Direct elections for the House ensured a place for the people in the national government.  The Senate, by contrast, would be the voice of the states.   According to John Jay in Federalist 64, the populace had not yet become familiar with foreign affairs.  Therefore, elected state officers would be in the best position to select those of the highest intellect and integrity to promote national interests to the United States Senate.  Hence, Art. 1 Sec. 2, par. 3.

Having state legislatures select senators was one way to prevent extreme centralized federal power in a time of great uncertainty.  It was unclear how the unified federation would function and what types of evils or corruption lay ahead.  Thus, state legislative selection of senators was intended in part as a check on unwieldy government and in part as a means of establishing the new country as one of educated and wise men.  But, the Framers understood that this indirect election was hardly perfect; it was acknowledged, even in its day, as one way to kick the can down the road for future generations to ponder about the powers of the individual states in relation to the federal government. The more things change…

Parties and factions were well known to the Framers who sought to minimize their damage.  However, it is also possible that they did not anticipate the pending power of party bosses, the corruption of cronyism and the perils of patronage.  But, it soon became clear that state political parties (rather than elected officials) would hand-select Senators instituting a system neither intended nor desired.  In states where one party held sway, the legislature voted for the party stalwart.  In states where the legislature was divided, the decision was so contested that states could go without United States Senators, sometimes for years.  Art.1 Sec. 2 grew not to protect federalism in the sense of state autonomy; it became a means of promoting people significant in party politics in a particular state...something akin to an arbitrary, appointed government - something the Framers found odious.  As early as 1826, bills became commonplace on the House floor to insist on direct election of Senators.

Leading up to the Civil War, issues couched in federalist cloaks took center stage in a very ugly way; indeed, the idea that federalism itself is linked to preserving the horrific institution of slavery diminishes the import and beauty of the dual sovereign system and really misunderstands its true basis and why it matters.  John C. Calhoun (NOT, as some yahoos declare, Thomas Jefferson) started talking about states as if they were people.  People have rights; states have powers.  There is no such constitutional concept as "states rights".  States were at the Congressional table by legislatively electing United States Senators, but that was not as of right - it was more of an experiment.  Calhoun himself was a Senator appointed by the South Carolina legislature and thus query his loyalty under the indirect election construct: was it to the nation, to the people of South Carolina or to the officials elected to the South Carolina Legislature?  Indeed, the pretenders to the throne of federalism sought to secure their own, not the people's, rights.  They come today the same but in different garb called SuperPACs; new shields to wield the paper sword.  Neither the early "state's rights" advocates not the current ones seek to empower the people of the individual states; they seek to silence them. 

The franchise of voting is and has long been an American ideal.  Indeed, after the bloody Civil War ended, the Reconstructionist Amendments promised that the federal government would insist upon enforcing the elimination of slavery and indentured servitude, would decide who was a citizen and how to ensure protection of individual rights, and finally that there would be no infringement upon the fundamental right to participate in one’s own government due to race.  The 15^th Amendment seeks to ensure, not just presence at the ballot box, but also an equal presence without dilution of any person’s vote.

After the Civil War, after the Reconstruction Amendments, and while certain powerful members of formerly rebellious states were seeking to enforce voting discrimination as deeply as they could under the guise of "state's rights", several bribery cases occurred in state courts – some were bribes to vote for United States Senators (see, i.e., In re Wellcome, 23 Mont. 140 (1899)); others were accusations and convictions for United States Senators taking bribes (i.e. State v. Davis, 18 Del. 139 (1899)).  The system of state legislature elections of senators left the people with no voice but also the Senators with no accountability. As in the antebellum period, some legislatures deadlocked on selecting United States Senators leaving (depending on the lens one views) either the states or the people of those states without any representation in the Senate, sometimes for several years.  Everything intended by the initial idea of the state legislatures electing Senators had been destroyed by party factions; people were seeking to buy Senate seats and voters - even newly minted ones - were losing their one person-one vote mandate.

An odd twist of history includes the Treason of the Senate series in W.R. Hearst’s Cosmopolitan magazine in 1906.   The series portrayed a Senate for hire, beholden to corporate interests and devoid of loyalty to the state or the people.  The groundswell prompted a bill in the Senate to amend the Constitution which was roundly opposed by the entrenched factions – Republicans in the New England states and Democrats in the Southern ones – but the measure gained approval and passage by the required margins in both houses of Congress in May, 1912.  The first state to ratify the 17th Amendment for direct senate elections was the Commonwealth of Massachusetts; the measure gained inclusion into the United States Constitution 100 years ago (Southern strongholds including Virginia, Florida, Georgia, South Carolina, Mississippi and Kentucky never did vote to ratify – Utah rejected it outright in 1913).

In 1912 and 1913 the question was not one of federalism; those living at the time understood the radical, cataclysmic alteration of the relationship between the states and the federal government that occurred with the Reconstructionist Amendments.  The question was one of increased democracy.  It was one of fairness and it was one of inclusion.  The 17th Amendment intended to rectify the crimes of bribery and influence that had infused the upper house of Congress.  Indeed, the Amendment passed as House members enjoyed malapportionment, where rural votes diluted urban votes in many states by being given greater weight (perhaps the 17th Amendment foreshadowed modifications destined for that chamber.)  It was before effective voting rights legislation, the same legislation currently under attack.   The idea was to increase the franchise and therefore reflect better the American people and denounce the influence of special interests.

Almost immediately, the 17th Amendment altered the composition and texture of the Senate.  With Wilson in the White House and his progressive agenda on the table, direct election literally changed the Senate from Republican to Democrat in one election cycle.  Without this change, America may have been denied the compassionate brilliance of Brandeis on the Court, reforms in labor, banking, tariffs, and health care, all of which paved the way for bolder programs and ideals later administrations would propose.  Without the change from the state legislatures choosing Senators to the people, it is unclear how long it would have taken the country to propose, pass and ratify the 19^th Amendment.  

States always had the power to increase the franchise and it was always – and is now - in their interest to implement more liberal voting opportunities.  The more people eligible to vote, the greater the representation in Congress, the more power the individual states can wield.  It has ever been thus and yet the fundamental right of voting has continually been restricted, diminished, diluted and denied by state governments, the very entity the Framers believed would seek to increase, not decrease, its voice in the national government.  This was true from the earliest compromises including the horrid 3/5 compromise of Art. 1 Sec. 2.  Had all people counted for apportionment in the House of Representatives, the slaveholding states would have had MORE power, not less, in Congress; it was the slaveholding states who fought to have slaves count fully for apportionment.  If, as some at the time suggested, the wholly disenfranchised not counted at all for apportionment purposes, states would have had, early on, determined means of increasing the franchise and perhaps would have ended slavery sooner. That is, if apportionment were really apportionment of eligible voters rather than voiceless bodies, states would have an incentive to broaden the population eligible to vote.  It does not work that way which is exactly why, for example, towns with prisons full of inmates ineligible to vote want the inmates to count for apportionment but not for any other purpose.  A true one-person one vote mandate would only count eligible voters so as not to increase or dilute voting power.

Those who seek to restrict and dilute and deny voting rights today argue issues of federalism as if it were 1789 and the Constitution had not been amended (and also as if they understood the idea of federalism - it is NOT to empower individual people in federal matters, but to solidify powers of individual states).  No Amendment to the Constitution - not even the 10th - ever sought to increase the powers of state government.  The franchise Amendments, the 15th, 17th and 19th all sought to wrest powers away from the states and into the hands of the people directly.  Those who argue for state powers under the inaccurate and improper moniker “state’s rights” cannot also claim that they individually want the right to vote for their own Senator – or for the African Americans and women involved in that particular and odd movement – the right to vote at all.  It’s one Constitution; we cannot cherry pick the parts we like and pretend the rest does not exist.  Where federalism works and has ever been successful is where states become laboratories for improvements and progress including advancing equality on social issues and civil rights and creative enterprise.  Every other experiment in federalism leads to a contraction, rather than expansion, of the voice of the people thereby restricting democracy and freedom. 

A major contributor to passing the 17^th Amendment was disgust that United States Senate seats were up for sale in state legislatures.  They still are under new guise.  Indeed, query whether the 17th Amendment could impact Court rulings on the 1st Amendment thereby limiting outside influence at least in United States Senate races.  That is, unlike the language of Art. 1 in regard to House seats where "the People of the several states" elect House members, the 17th Amendment declares, "[t]he Senate of the United States shall be composed of two Senators from each state, elected by the people thereof..."

Massachusetts is engaged in a special election for the remainder of the term for our Class 2 Senate seat.  This is a post once held by Edward Everett whose lengthy speech preceded Lincoln’s Gettysburg Address, by John Weeks who initiated a federal land preservation act (and also his son, Sinclair Weeks), by Edward Brooke, the only elected African American Massachusetts Senator, by Paul Tsongas, the first former Peace Corps volunteer elected to the Senate, and by John Kerry, the current United States Secretary of State.  It is, indeed, the People's Seat and the Senator should be elected by the people of the Commonwealth without influence from special interests.

Although the Democratic candidate in the special election has requested the “People’s Pledge” that neither candidate benefit from special interest issue-oriented advertising, his opponent has not agreed.  Millions of dollars will pour into this campaign from unknown, undisclosed entities seeking to sway the votes of Bay Staters in an effort to corrupt this election in ways even more extreme than the scandals leading to ratification of the 17th Amendment.  Ironically, if the senate seat were still controlled by the Massachusetts Legislature, the result would be a foregone conclusion.  Though that is no answer; any election is better than legislative appointment.  While the people of Massachusetts have the constitutional right to elect their United States Senator by direct ballot, it sure looks like the seat is still up for sale.  Happy Centennial 17th Amendment; may your quest for democracy be fulfilled.

Federalism and Cannibis -How the Ninth And Tenth Amendments Won at the Polls

When Congress overrode President Wilson's veto of the Volstead Act in 1919, it unwittingly launched careers of now notorious criminals.  Federally prohibiting the manufacture, sale and transportation of intoxicating liquor (but not consumption or use for scientific and religious purposes) was an unmitigated disaster culminating with the 21st Amendment in 1933. 

Entire communities of brewers and distillers lost everything to Prohibition and then the Great Depression, bracketed by loss in two World Wars.  The American people protested these ill conceived laws through bootleggers and speakeasies (romanticized now but often dangerous in their time) by unlawfully manufacturing, selling and transporting all manner of intoxicating liquors which had been a legitimate business just moments before.  But, the mostly small, independent commercial producers of beer and spirits could not fight back leaving empty, boarded up buildings in formerly profitable neighborhoods.  The repeal of Prohibition came too little, too late to revive the lost businesses. 

The entire movement in opposition to alcohol would baffle the Colonists and Revolutionaries who imbibed on a regular basis.  Indeed, with no water purification system (or understanding of waterborne illnesses), alcohol was safer to drink than water.  It never would occur to them that any government - state or federal - would seek to restrict intoxicating drink or even medical drugs.  What could be more personal an individual freedom than the choice of what to - or not to - ingest?  

The Volstead Act leaves a legacy in the federal government's war on drugs, a war that may have met its match; the people are fighting back.  The shot heard round the world came this time from Colorado and Washington in ballot initiatives granting legalization (not decriminalization or medical use, but full on treat-marijuana-like-alcohol-and-cigarettes legal).  The federal government is in a tizzy (it's a war, afterall) and so a "conservative" House of Representatives will scramble to figure out how to control state action over a drug that is not known to cause much harm, if any, and has its roots and relatives in our American heritage.  Just let that sink in; those who chatter about principles of federalism to restrict rights will contest those same ideals when those principles enlarge rights.

Industrial hemp is a weed, not terribly unlike its banned cousin, which was used to make everything from paper to fabric to rope for the burgeoning shipyards from the earliest of Colonial American settlement.  Indeed, there are texts indicating that failing to grow this important crop was itself a criminal offense.  While hemp brought American industry to new heights, it did not have a similar effect on the populace as it has no intoxicating properties.  The cannabis associated with smoking and laughing and Jazz and hippies was not widely available until about the time of the Missouri Compromise.  Marijuana may have even gained prominence during Prohibition but was criminalized shortly after alcohol regained its place in polite society.  It is as though the federal government is unhappy unless it is punishing some type of intoxicant.  Today's question is not whether the federal government can enact such laws but whether the federal laws pre-empt the new state laws.

The national prohibition on cannibis has essentially eliminated all commercial growth of hemp despite its long history in this nation and the remarkable qualities of the plant. Undeniably, the people of Colorado and Washington spoke to recreational use of marijuana, but the implications reach far beyond the borders of those states and far beyond their intent.  Their initiatives will necessarily spark - for both liberty interests and commercial concerns - a new conversation about the role of the federal government in conflict with and as constrained by the Ninth and Tenth Amendments. 

Federal drug laws live, for the moment, in the Commerce Clause, permitting even the federal prosecution for home grown plants where states have medical marijuana use laws.  But, the Chief Justice has called this line of argument into question since he did not support the Affordable Care Act under the Commerce Clause.  Indeed, the valorous creativity of the Warren Court's use of the Commerce Clause to ensure equality was always a tenuous and easily challenged argument.  What may be a shield cannot be a sword; federalism, and justice itself, demands the protection of individual liberty as against an encroaching government.

The Ninth Amendment acknowledges that the Constitution does not enumerate all rights, and that there are rights retained by the people. See, i.e. concurrence in Griswold v. CT, 381 U.S. 479, 492 (1965)  Ballot initiatives often express the voice and life of the Ninth Amendment.  Surely the Framers understood a right to the integrity of one's own body including what substances one might ingest and which ones one might refuse.  And, intoxicating drink was certainly prevalent even in the colonies.  It would be difficult to imagine Hamilton or Adams or Madison or Jefferson seeking to micromanage individual's consumption of any particular product.  As to the question of marijuana (or any drug) legalization, it appears have some resonance in the Ninth Amendment.

But, the big guns will be reserved for the Tenth Amendment: the retention of power by the individual states where no such power is delegated to the federal government.  For example, Colorado and Washington will develop some regulatory mechanism for marijuana.  There are privileges and immunities clauses within Art. 4 and the Fourteenth Amendment of the Constitution.  Query whether those in a national park located in one of those states could be treated differently from those in a state park or city sidewalk.  And if there is a difference, who trumps whom?  There are no enumerated powers in the federal constitution in regard to controlling intoxicants; this one should bounce back to the states.  That is, given the flimsy ground upon which the federal drug laws stand, they should bow to state legalization.
 
While the insidious and destructive war on drugs has wreaked havoc on American neighborhoods and entire populations for far greater offenses than recreational use of marijuana, the good people of Colorado and Washington may have started a revolution with their decisive votes.  The results of the ballot initiatives could restore to farmers the opportunity to grow industrial hemp, a plant that, among other uses, has the power to assist America in its quest for energy independence.  And, it could be the catalyst to end federal control over the criminalization of drugs; reverting all power therein to the states or to the people.

Valid, vibrant federalism arguments, such as those mounting in Washington and Colorado right now, can and should thrive.  States ought to be individual laboratories for growth and change and progress providing more freedom than does the federal government.  And, unless specifically enumerated powers rest exclusively in the federal government, it should have no ability to restrict freedoms provided by the states.  That is the greatness of the federalist ideal.  The invidious misinterpretation of the doctrine of federalism, those often self-named "states rights" movements which aim to restrict individual liberties by state action are necessarily doomed to failure as they were 150 years ago.  But, unless the national government will secure and protect all liberty concerns, then marriage equality, broad educational mandates, single payer medical coverage, and even legalization of previously banned substances are and ought to be the province of the individual states.  As the red states and blue states work this out through a purple haze, federalism lights up.

Unabridged: Reservations About the Tenth Amendment and the Right to Vote

One hundred and fifty years ago, Union forces built bridges and began assembling to face Lee's Army near Fredericksburg, Virginia wholly unaware they were about to lose one of the most lopsided fights in Civil War history.  That war is prominent this Veteran's Day as the battles enter their sesquicentennial anniversaries and cinema brings the era into a new realism.  But, also because we are still chasing its ghosts.

Spoiler alert - the Union wins, the Confederacy dissolves and the states in rebellion re-enter the Union with considerable conditions placed upon them.  Among these conditions was mandatory ratification of the Reconstructionist Amendments to the United States Constitution: the Thirteenth Amendment prohibited slavery and indentured servitude, the Fourteenth Amendment defined citizenship and declared equality for all, and the Fifteenth Amendment enfranchised those who had been denied the vote by stating, "the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude."  Due to the opposition by the states in insurrection and a general concern about the administration of these mandates, all three Amendments endow Congress with the power to enforce them by appropriate legislation.

So, when Congress first set out to enforce the article in 1870, it did so rather forcefully, in 16 Stat. 140, by authorizing criminal penalties for officials who denied the right to vote based upon race.  In perhaps the first case determining the validity of that statute, Justice Strong (acting as Circuit Justice) upheld convictions in United States v. Given, 25 F.Cas. 1324 (1873).  He explained the constitutional powers of Congress to enforce the Fifteenth Amendment's right to vote (or, more precisely, prohibition of discrimination to vote) through clever analogy.  He asserted that there was no power bestowed upon Congress to enforce the third paragraph of Sec. 2 of Art.4 of the United States Constitution but that legislation enforcing it had been upheld by the Court.  Reasoning that the language in the Fifteenth Amendment was stronger and more directed, congressional action - even to criminal penalties - was appropriate.

Art. 4 of the United States Constitution originally affirmed the permanence of servitude for anyone born into slavery who was not granted manumission.  It was silent in regard to enforcement.  Yet, Congress acted twice with the Fugitive Slave Act of 1793 and then again in 1850 creating criminal penalties for those seeking freedom and remedies for those seeking to reclaim their "property"; both times the Court upheld fugitive slave legislation.  In this punctuated vein, Justice Strong upheld Congress' authority and power to enforce the Fifteenth Amendment via criminal sanctions. 

The Givens case mentioned the general powers of the states to enact rules and regulations for voting but remarks,

But the recent amendments have introduced great changes. If prior to 1870, when the fifteenth amendment became a part of our organic law, the right of a slave holder to the ownership of his fugitive slave in any state of the Union, and his right to delivery of such slave, was a right which congress was authorized to enforce and protect by penal legislation against individuals obstructing it, much more are the rights secured, recognized, and guaranteed by the thirteenth, fourteenth, and fifteenth amendments objects of legitimate protection by the law-making power of the federal government. Those amendments have left nothing to the comity of the states affecting the subjects of their provisions. They manifestly intended to secure the right guaranteed by them against any infringement from any quarter. Not only were the rights given—the right of liberty, the right of citizenship, and the right to participate with others in voting, on equal terms, without any discrimination on account of race, color, or previous condition of servitude—but power was expressly conferred upon congress to enforce the articles conferring the right. The second section of the fifteenth article ordained that ‘the congress shall have power to enforce this article by appropriate legislation.’ Manifestly this section was adopted for a purpose. It must be so construed as to confer some effective power.

United States v. Givens, 25 F.Cas. at 1327 (emphasis added).

Fast forward to 2012 where the Court granted certiorari in the matter of Shelby County, AL v. Holder to determine whether Congress exceeded its authority under the Fourteenth and Fifteenth Amendments when it reauthorized a section of the 1965 Voting Rights Act requiring certain localities with a history of racial discrimination to obtain preauthorization from Congress before they changed their voting rules thereby violating the Tenth Amendment and Art. 4 of the Constitution. The Tenth  Amendment declares that powers not specifically designated to the federal government nor prohibited to the states would be reserved by the states or the people.  Art. 4 avers that citizens of each state would enjoy the privileges and immunities of citizens in the several states...it also was the original home of the guarantee that a slave would be a slave no matter where he resided leading to the ill considered decision in Dred Scott v. Sandford announcing that no African American was a citizen anywhere in the United States.  The grant of certiorari under these two sections of the Constitution should send shivers down the spines of every American.

In 1873, Justice Strong- appointed by President Grant (the same person who accepted Lee's surrender at Appomatox Courthouse) - affirmed that the Fifteenth Amendment radically changed the relationship of the states to the federal government.  He lived through the ratification period and the emergence of liberty in Reconstruction and was quite convinced that the Tenth Amendment did not apply to enforcement of the Fifteenth.  By granting certiorari the current Supreme Court is opening up these old wounds of war that have scabbed over and over with time and struggle through a Tenth Amendment vehicle that ran out of steam by 1873.

Following the war that claimed 700,000 American lives, countless lynchings, intimidation, brutal violence, outrageous poll taxes and literacy tests continued to deny the vote.  Undeterred by this irrational savagery, courageous, powerful movements of the 1940's, 50's and 60's persisted.  Finally President Johnson and the heroic 89th Congress passed the Voting Rights Act of 1965.

The Reconstructionist Amendments were war reparations reserving little ambiguity about their meaning, purpose and design.  To ensure their life in perpetuity, they reformed the entire relationship between the individual states and the federal government granting significantly more power in the federal government than initially occurred (a point Madison would have loved) and left nothing to comity.  These Amendments were not a compromise - they were an affirmation intended to instill the promise of the second sentence of the Declaration of Independence upon all people by redirecting certain powers to Congress.  That change is permanent. 

Together, as a nation, we have united to defeat the Nazis, we have struggled with the inequities of our first compromise and have emerged stronger with each member of society fully enfranchised, we have pulled and strained against the notion of liberty to a point where we are ensuring civil rights at the ballot box (which has its drawbacks, but is a remarkable achievement), and we have just affirmed, by popular (and our quirky electoral) vote that we do believe in the promise initially embraced by the Enlightenment that emboldened our forbears.  That unified nation - the one that reveres our brave armed forces on this Veteran's Day- began with the end of the Civil War and is continually evolving, in the hopeful words of James Madison, in order to form a more perfect Union, establish justice and ensure domestic tranquility.

We ought not and cannot and shall not permit the frayed edges to unravel this great nation. Congress is now elected by popular vote; it has deemed that certain localities must receive approval before changing voting laws; the unelected Courts must accept this under the Fifteenth Amendment which, by its own terms, denied states their prior powers under the Tenth Amendment.  Even though it took Congress 100 years to act, separation of powers assures that any and every action to enforce the Fifteenth Amendment shall be upheld. 

The mournful magnitude of 20,000 casualties in Fredericksburg 150 years ago was not in vain.  Our tragic division united us; and in that unification we agreed - however reluctantly by some - to welcome all Americans as equals.  Every vote counts and if takes Congressional approval to so ensure then that is a tiny price to pay for all of the blood that has spilled over the unalienable right to take part in one's own government.