Federalism

Given the limited powers granted to the federal government, a rigid reading of the 10th Amendment would suggest that the states (or the people) have extensive untapped power to pursue policies, programs, actions, or even inaction. 

Those who favor federal power and intervention tend to focus on three distinct provisions of the constitution. First, the Commerce Clause (Article I, Section 8, Clause 3) states that:

"[The Congress shall have Power . . . ] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . ."

In a modern world where nearly everything is related to commerce and it is increasingly difficult to remove oneself from the stream of commerce, does the commerce clause provide nearly unlimited power to federal authorities? Even not, where else can one turn? The next logical place is the Necessary and Proper Clause (Article I, Section 8 ) which states:

"[Congress has the power] to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or any Department or Officer thereof." 

Relying on the N&P clause as a basis of authority raises the question of what actually constitutes "necessary and proper"? Alexander Hamilton in Federalist No. 33 argued that it allows Congress to act when no other provisions of the United States Constitution provide guidance or governing authority. While discussion of the necessary and proper clause by the United States Supreme Court the primary source is found in McCulloch v. Maryland (1819).

Finally, those who assert greater federal authority also rely on the Supremacy Clause (Article VI, Paragraph 2). The Supremacy Clause states that:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

Proponents of federal power tend to emphasize that the "supreme law of the land" provision of the supremacy clause suggests legal domination by the federal government. At the very least, the clause provides something of a "tie-breaker" in the case of a disagreement between the national government and a state(s). 

Adding additional complications to the federalism debate are the "Civil Rights Amendments" (13, 14, and 15) that seemingly provide additional enforcement powers, leeway, and policy possibilities to the federal government at the expense of the states. Specifically, the 14th Amendment emphasizes:

"Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2.
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4.
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5.
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."

Particularly in section number one, but throughout the amendment, there are additional restrictions on state autonomy and authority. Quite simply, the Fourteenth Amendment, even in a conservative reading, is curtailing the powers of the individual states. Of course, given that the south favored states' rights - the tone and content of the amendment should not be surprising or shocking.