Federal and State Power
Most Americans have at best a vague idea what's in the Constitution. For
example, did you know that according to Article VII, Section II, if someone
tries to sneak 11 items through an express lane with a ten-item limit,
anyone behind him has the right to beat that person with a broomstick?
Well, no, and the point is that most Americans would have to look it up
to be sure. But consider the following questions:
- To combat piracy, which is enjoying a resurgence in some parts of
the world, the U.S. government authorizes private ship owners to attack
pirate vessels, rather than using the Navy or Coast Guard. Can we do
- A notorious celebrity is so popular that he is
inevitably acquitted of drug dealing and sexual assault, even in the
face of overwhelming evidence. Could Congress simply pass a law sending this
person to prison?
- Public frustration with the Supreme Court reaches such a pitch that
Congress passes a law abolishing the Supreme Court.
- In response to violence along the lawless Canadian border, troops
are sent to a border town. Due to a severe logistical problem during a
bitter winter, troops have to be put up in private houses, and Congress
passes a law to that effect. Is that permissible?
- If the Fifth Amendment prohibits being tried twice for the same
offense, how come the officers in the Rodney King case were acquitted in
State court and then convicted in Federal court?
- A state heavily reliant on illegal immigrant labor, and with a big
Hispanic voter bloc, passes a law prohibiting Immigration from
conducting activities in the state. Can it happen?
- Noting that the First Amendment says Congress shall pass no
law abridging freedom of speech or the press, a state passes a law
regulating broadcast content and argues that there's nothing in the
Constitution to prohibit them from doing it. Will it stand?
- Puerto Rico votes for independence. Could it happen?
- If there's no double jeopardy allowed, how come some people have
- Apart from partisan politics, is there any reason Florida voters
could not have been allowed to vote again during the contested 2000
- Surprisingly, yes. Allowing private ship owners to wage war
was a common practice into the early 1800's. Such people were called
privateers and the documents that authorized them to do so were
called "letters of marque and reprisal." Article I, Section 8
explicitly grants Congress this power.
However, the practice was outlawed by treaty in the mid 19th
century, and the U.S. is party to the treaty. So yes, it's
Constitutional, no, we can't do it under international law, unless
Congress rescinded the treaty.
- Nope. Condemning someone by legislative act is called a "bill of
attainder," and is explicitly prohibited in Article I, Section 9. The
reason the Constitution refers to things you never heard of is that they
were common practice at one time. The reason you never heard of
them is that the Constitution prohibited them and most other nations
- No way. Article III sets up the Supreme Court. The only way to
abolish it would be to amend the Constitution.
- Qualified yes. This was one of the grievances that fueled the
American Revolution and is prohibited by the Third Amendment. There have
been almost no court cases involving this issue in all of U.S.
history. But the amendment prohibits this practice "except in time of
war," and "in a manner to be prescribed by law." So if the situation
were bad enough to be considered "a time of war," it could happen.
Seriously, the U.S. military excels in logistics, and it's
very hard to imagine there's no school gym capable of billeting
[One of the very few cases, maybe the only one, ever
involving this amendment was a 1982 New York case where prison staff
living in State furnished quarters were temporarily evicted to make room
for National Guardsmen during a prison disturbance. The court found in
favor of the staff and lamented that the total lack of precedent made
the decision difficult.]
- Civil rights violations can be prosecuted even after acquittal,
because it was once common for even flagrant crimes against minorities
to result in acquittal. The legal theory is that the violation of civil
rights is a Federal issue separate from the State criminal issue, even
though the two offenses happened concurrently. It is, frankly, a way of
getting around abuses of double jeopardy without opening the floodgates
to repeated prosecution for the same offense.
- You gotta be kidding. Federal laws explicitly override State laws
(Article VI). No organization with a chain of command can allow things
- In your dreams. The Fourteenth Amendment says the Constitution
applies in all the states, and the courts have evolved the doctrine of
"incorporation," that all Constitutional rights apply at the state and
local level even if they formally refer only to Congress. Also,
broadcasting is interstate commerce and that's Federal turf.
- Why not? The Civil War showed states can't secede by force, but if
we all agreed to let a state secede peacefully, we could find a way to
make it happen. And Puerto Rico isn't even a state. We occupied the
Philippines for fifty years and then gave them independence.
- Appeals and retrials are considered to be part of a single overall
process. If you're acquitted or the case is dismissed they can't touch
you again (see 5, though).
- Yep. Article II, Section 1 of the Constitution says that
Presidential election day "shall be the same throughout the United
States." It would have required a national election.
Since a lot of environmental law revolves around the powers of the
Federal government and the courts, it's a good idea to understand the
From 1781 until the Constitution was ratified in 1789, The United States
was ruled by a weak government under the Articles of Confederation. The
presiding officer of Congress was called "President of the United States
in Congress Assembled,"
so technically ten people were President before George Washington. None of
the ten became President under the Constitution. Most famous of the ten was
John Hancock (November 23, 1785 – May 29, 1786), the guy who wrote big. The issues that the Constitutional
Convention had to wrestle with included:
- Need for strong central government versus concern over loss of autonomy.
- Large states versus small states. Congress, with a Senate (all states equal) and House of Representatives
(proportional), expresses the compromise. So does the Electoral College,
which gives extra weight to small states.
- Constitutional restrictions on Federal authority
Article II of the Articles of Confederation lays out clearly the
fundamental difference between the Articles and the Constitution:
Each state retains its sovereignty, freedom, and independence, and
every power, jurisdiction, and right, which is not by this Confederation
expressly delegated to the United States, in Congress assembled.
Congress could make war, regulate coinage, resolve disputes between
states, and appoint ambassadors, and that was about it. Canada,
interestingly, was pre-approved for admission to the U.S. Virtually all the
powers granted to Congress by the Articles were incorporated in the
Constitution, often in the same language.
It's that word "expressly" that was different. The Constitution left it
out, leaving wide discretion to the states but also creating a vast gray
area where Congress could also act. Under the Articles, Congress was not
expressly granted the right to regulate the purity of food or create a
National Park System, and therefore it could not. Under the Constitution,
Congress was likewise not expressly granted those powers, but neither was it
expressly forbidden to exercise them.
The Biggest Misconception About the Constitution
The word "democracy" appears nowhere in the Constitution. Instead, the
Constitution requires that the States be guaranteed a republican form of
government. A republic is a government where decisions are made by elected
representatives rather than direct vote. It's pretty difficult to have a pure
democracy in anything bigger than a small village or a model railroad club. Wholly apart from the
difficulty of holding popular votes on national legislation 200 years ago, a
republican form of government seeks to have decisions made by people who have
the time and intelligence to make informed choices. Meh. So how's that been
A republic need not be democratic. The Venetian Republic of the Renaissance
wasn't. The representatives were selected by the wealthy class, and they'd
better act as their backers wished, because nobody was better at back-stabbing,
figuratively and literally, than the Venetian elite. The Soviet Union styled
itself a union of republics, and it was, in the sense that laws were debated by
representatives, but the representatives were chosen by the Communist Party and
rubber stamped by the voters, and it wasn't democratic. All of the "democratic"
nations of the world, including the U.S., are actually democratic republics.
Federal Powers in the Constitution
- Create new States
- This is a legacy of the Northwest Ordinance, the greatest
accomplishment of the Articles of Confederation government. Citizens of
all states have the same standing as those of the original 13. The U.S.
thus avoided the fatal error of Rome, which viewed everyone outside of
Rome itself as second class. We eventually make our own fatal mistake,
but at least it won't be this one.
- Regulate bankruptcy
- The states cannot prevent a company or individual from declaring
bankruptcy if the person meets Federal guidelines.
- Coin Money and Prosecute Counterfeiting
- Here the gray area worked in reverse for a long time. Congress had
the power to coin money, but throughout much of the 19th century there
was a lot of local and private money around as well, for example, notes
issued by banks. That worked in an era when travel was limited and
people were familiar with the local banknotes, but just imagine going to
Key West and trying to pay for a meal with a note from Louie's Savings
and Loan of Tacoma. For that matter, it's still perfectly legal to mint
private coins and even trade them for something of value, if both
parties agree. The coins just don't have any legal force. You can't
force someone to accept a privately minted coin.
- Post offices
- Attempts by private carriers to challenge the ban on private
delivery of first-class mail have run smack into a stone wall. The power
to set up a postal service is explicitly granted to the Federal
government. End of story.
- Patents and Copyrights
- Copyright and patent cases are by definition Federal. The recent
extension of the duration of a copyright was unsuccessfully challenged
in the Supreme Court. Some justices felt that the extended duration
infringed on free speech, but most agreed there really are no limits set
in the Constitution on the duration of a patent or copyright.
- Income Taxes
- We did this to ourselves. In the original Constitution, the only
taxes that could be levied were fixed per capita. By 1900, it was
obvious the United States had grown too big and complex to govern
without more money and in 1913, the 16th Amendment gave Congress the
right to collect income taxes.
Federal Power Within The States
- Conditions Attached to Federal Funds
- Probably the most pervasive use of Federal authority within the
States is through conditions attached to Federal funding. To obtain
Federal funding, universities have to follow equal-opportunity laws,
highway projects have to survey for archeological remains and endangered
species, and so on.
- Right to regulate Federal lands
- Although the power is not explicitly defined in the Constitution,
the Federal Government is the largest landowner in the United States,
and has the same rights as any other landowner to decide how to use its
lands, including selling it, leasing it, trading it, or giving it away. In the east, most land was private, and in the central U.S. most
land was given away or sold for homesteading, but large areas of the far
west are still Federally owned. There are political pressures to
transfer Federal lands to the States, so far without success. Frankly,
retaining ownership of Western lands was the smartest thing the United
States ever did.
- The Federal government has jurisdiction over national defense and
thus has the right to create defense installations.
- Dealing with Indian Tribes
- The Constitution and Federal Law give Indian tribes some measure of
sovereignty and thus remove them to some extent from State jurisdiction.
The most conspicuous application of this sovereignty in recent years has
been the right of tribes to operate casinos and sell tobacco without
- Interstate Commerce
- The most important environmental effect of this right is the power
to regulate navigable waterways. One of the first environmental
protection laws prohibited the dumping of refuse in navigable waterways.
In fact, one of the very first uses of Federal regulatory power was the
use of power over navigable waterways to enact safety regulations for river steamboats,
which were blowing up with distressing regularity.
Beginning in the 1930's, the Interstate Commerce clause has
been the basis for far-reaching Federal regulation. It began with child
labor. Attempts to regulate child labor had been struck down repeatedly
because there was no Constitutional authority for Congress to regulate
it. A formal Constitutional amendment was actually in the process of
ratification. Then the Supreme Court upheld the right of Congress to
regulate interstate commerce in goods produced by child labor. The
amendment became a dead issue. By the 1930's, essentially all commerce
was interstate, so this power gives the Federal government extremely
broad authority to regulate workplace safety, minimum wages,
price-gouging, and so on.
- 14th Amendment
- The Fourteenth Amendment, passed after the Civil War, closed some
loopholes by stating explicitly that the Constitution applied within the
states, and that citizens of the United States are citizens of the
states where they live. It also mandated due process for all, and
forbade discrimination in legal proceedings.
For a very long time the 14th Amendment was applied in a
reactionary way. For example, it was used to justify injunctions
against strikes, on the grounds that a strike deprived a factory owner
of the use of his property without due process. And it failed to stop
discrimination because the Supreme Court ruled that "separate but equal"
facilities for blacks and whites were acceptable (although they were
In 1954, Brown vs. Board of Education overturned
legalized segregation and the 14th Amendment has been broadly applied
"Due process" has been held to apply to any adversarial proceeding, not
just court cases. For example workers being fired or students being
disciplined have due process rights.
In the name of protecting civil rights, the 14th Amendment is
the basis for Federal equal-opportunity laws and equal-housing laws that
apply even at local levels.
Ironically, one issue not addressed in the Constitution at all was
secession. Up till the Civil War it was widely held that states could not
only join the union, but also leave. Not long before the Civil War there was
a secession movement among northeastern states because they were
frustrated with the continued toleration of slavery. There's nothing
prohibit secession in the Constitution.
The Civil War showed states can't secede by force if the rest of the
country is willing to fight hard enough to stop them. It's intriguing to
wonder what might have happened if the southern states had tried to secede
through legal channels, say by introducing a Constitutional amendment or
petitioning Congress. When
applying for statehood, Alaska analyzed the pros and cons of all options,
including secession (presumably by peaceful means and with consent).
In 1869 the Supreme Court ruled, in Texas vs. White, that
unilateral secession was unlawful. The issue was over whether certain acts
by the Texas government during the war had any legal standing. The vote was
5-3 and the logic, to put it mildly, strains the wording of the Constitution
The Constitution is the supreme law of the United States because it says
it is. Article VI reads:
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,
Thing in the Constitution or Laws of any State to the Contrary
The judge in Alabama who refused to obey a Federal court ruling to remove
a courtroom display of the Ten Commandments was flatly in violation of this
article (blue), and was removed from office.
The last sentence in red states explicitly that no State has the power to
nullify the Constitution or Federal Law. Thus no state can nullify, say, the
Civil Rights Act of 1964, or the Endangered Species Act, or Federal income
taxes. However, no state can nullify the Patriot Act, or forbid the FBI from
operating within the state, or prohibit lawsuits against downloading
copyrighted works, either.
The Supreme Court
The Supreme Court is the only court explicitly required in the
Constitution. Article III. Section 1 says:
The judicial Power of the United States, shall be
vested in one supreme Court, and in such inferior Courts as the Congress may
from time to time ordain and establish.
Congress can and has created lower courts. "Inferior" here simply means
"lower," although sometimes one wonders... Article III. Section 2
defines the jurisdiction of the Court (slightly modified for Web pages,
since they didn't have bullet points in 1787).
The judicial Power shall
extend to all Cases, in Law and Equity, arising under this Constitution, the
Laws of the United States….
- to Controversies between two or more States
(state lines, reciprocity agreements, jurisdiction over cases
involving offenses in both states, extradition, etc.)
- between a State and Citizens of another State (Repealed by 11th Amendment,
one of the least known amendments. The actual effect is to make
states immune from many suits in Federal court).
- between Citizens of different States
- between Citizens of the same State claiming Lands under Grants
of different States
- between a State, or the
Citizens thereof, and foreign States, Citizens or Subjects
Limits on the Supreme Court
Although checks and balances on the Supreme Court are less extensive than
the President's right to veto a bill, or Congress' to override the veto,
they do exist. Article III, Section 2 states:
In all Cases affecting Ambassadors, other public
Ministers and Consuls, and those in which a State shall be Party, the
supreme Court shall have original Jurisdiction. In all the other Cases
before mentioned, the supreme Court shall have appellate Jurisdiction, both
as to Law and Fact, with such Exceptions, and under such Regulations as the
Congress shall make.
First, you can't go directly to the Supreme Court except under limited
circumstances. Second, Congress can limit the jurisdiction of the court. Two
cases where this happened are "no knock" drug laws, where police can enter
premises without knocking if they have reason to believe evidence will be
destroyed, and most important environmentally, the legislation enabling the
trans-Alaska pipeline. These have not been challenged in court because they
were designated off-limits. This power is sparingly used, but it does exist.
In Article II, Section 2, the President....
shall nominate, and by and with the Advice and Consent of the Senate,
shall appoint Ambassadors, other public Ministers and Consuls, Judges of
the supreme Court.....
So the President appoints but the Senate consents. So when people say
there's something wrong with the President trying to shift the ideological
balance of the Supreme Court, or the Senate trying to prevent it, that's
the way it's supposed to work. Changing the ideological balance of the
Supreme Court is one of the few checks and balances on the Supreme Court.
The Most Mysterious Feature of the Constitution
The Electoral College: What Were
Those Guys Thinking?
- Term "Electoral College" not used in Constitution
- Electors meet in their own states, hence no national meeting
- Electors appointed by State Legislatures (but delegated to
voters in all states now)
- If election goes to House of Representatives, each State gets
- Conclusion: Intent was that States, not the people, elect
- It has been speculated that the hope was Congress would decide most
The Mysterious Eleventh Amendment
The eleventh amendment to the Constitution, passed in 1798, reads:
The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against one
of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.
At first glance this seems like a minor tweak. Why did we go to the
trouble of removing this one area from Supreme Court jurisdiction by
amending the Constitution, only a decade after the Constitution itself was
There's a lot more here than meets the eye. The original text of the
Constitution omits any mention of suits between a citizen and his own state.
This one closes off the only remaining avenue for citizens to sue states
in Federal court. Basically, the Constitution says that the primary
venue for suits between citizens and states is state courts.
But it doesn't say "The Judicial power of the United States shall not
extend ..." It says "The Judicial power of the United States shall not be
construed to extend." In other words, the courts can't invent a reading
of the Constitution that gives them jurisdiction, but there's nothing to
prevent Congress from giving them jurisdiction, which it has in many
Suits by individuals against states in Federal court are based on alleged
violations of the Constitution by states, for example violation of due
process in criminal appeals. But attempts by individuals to challenge state
laws on novel grounds are often turned back. In recent years the Federal
courts have refused to intervene in state cases involving alleged unfairness
in hiring or firing.
The environmental impact of this amendment is potentially significant. If
your state simply refuses to enforce some state law on environmental
protection, you won't be able to get a Federal court to force them to
enforce a state law. If you hope to force some novel broad interpretation of
state law in Federal court, you will probably not succeed. If the state
violates a Federal law, then the courts have jurisdiction, but if
it's a purely state matter, they don't.
Article III, Section 2 of the Constitution goes on to say:
.... but the Congress may by Law vest the Appointment of such
inferior Officers, as they think proper, in the President alone, in the
Courts of Law, or in the Heads of Departments.
The Constitution implicitly assumes that below the level of legislation
there will be a broad area of administrative regulation. The existence of
departments is assumed and Congress has the power to let them appoint
subordinates. The Constitution doesn't say Congress can grant
agencies the power to adopt regulations, but neither does it forbid them to.
Surface Water Law
- Riparian ownership (Latin, ripa, riverbank) is the prevailing
doctrine in Europe, and the Eastern U.S.
- All owners of water frontage have rights to the water. Generally
this doctrine works best in areas of abundant water where scarcity is
not a serious issue.
- Owners must return the water to the water body, at least in theory.
Running a water mill is clearly permissible. Watering crops is
permissible even though much of the water soaks into the ground or
evaporates. Filling a pond is debatable, especially if the filling
interrupts the flow significantly. Extracting large amounts of water to
transport elsewhere is not permissible.
- Usage is supposed to be “beneficial use,” a term with fuzzy meaning.
Mostly the use is not supposed to overtax or damage the water supply.
Dumping waste or allowing cattle to muddy the water is not beneficial.
- In many countries, long-subdivided properties developed into strip
lots (common in France) to maintain access to the water for all land
- Generally don’t own water body (unless completely enclosed or
- Wisconsin “public trust” and attempts to restrict.
Present Wisconsin law holds that water bodies are held in public trust.
Current law allows anyone to walk in a stream regardless how small.
There have been proposals to restrict the public trust to streams
capable of floating a personal water craft, a move that would allow
landowners to bar access to many small streams.
- Generally, coastal lands are public below the high tide line, but
not everywhere. In Washington, for example, some tide lands are
privately owned (for shellfish harvesting) though conflicts over access
- First come, first served
- Primarily Western U.S.
- Potentially better for
- Failure to live up to promise
- Mixture of Riparian and Prior Appropriation
- State can appropriate water
- Rule of Capture (England)
- “Occult” Ground water
- Reasonable Use
- Prior Appropriation (Western U.S.)
- Correlative Rights (Proportional to land area)
Mining Law of 1872
- Love it or hate it
- Purpose was to encourage mining and Western settlement
- Minimal requirements for mining activity
- Could purchase Federal land for $2.50-$5 per acre
- Price locked into legislation
- No reclamation requirements
- Miners love the law because low costs and minimal requirements are
locked into the law; environmentalists hate it for the same reasons.
Later Mining Laws
- Mineral Leasing Act (1920)
- Mineral Leasing Act For Acquired Lands (1947)
- Outer Continental Shelf Lands Act (1953)
- Apply mostly to fossil fuels and fertilizers
- Land leased, not purchased
- Royalties paid
- Metals not covered
- Surface Mining Control and Reclamation Act (1977)
- Applies only to coal
- Requirement to restore land to original form and productivity
- May not be strictly possible (after all, a large volume of rock has
been permanently removed)
The “Takings” Controversy
- Amendment V –No person shall….be deprived of life, liberty, or
property, without due process of law; nor shall private property be
taken for public use, without just compensation.
- What is “due process?”
- Is Zoning “taking for public use?”
- Is Regulation “taking for public use?”
- Con: Never was interpreted that way before
- Pro: Regulations are increasingly invasive
Law of the Sea Treaty (1982)
- Territorial Waters Expanded to 12 miles (20 km)
- 200 mile Exclusive Economic Zone
- U.S. voted against treaty
- Reagan proclaims US EEZ 1983
- What to do about overlaps of EEZ’s
- Antarctic Treaty 1961
- Territorial claims set aside, not relinquished
- U.S., Russia recognize no claims
- Overlap between British, Argentine, Chilean claims
- Convention for the Regulation of Antarctic Mineral Resources
- Opposition to CRAMRA in U.S.
- Concern over opening Antarctica to exploitation
- Antarctic Protection Act (1990)
- Prohibits U.S. mineral exploitation
- Several nations (including U.S.) regulate tourism and research
Patterns of Environmentalism
- 1890-1910: John Muir, Sierra Club, Teddy Roosevelt
- 1930’s: “Dust Bowl,” CCC, New Deal
- 1970’s: Earth Day
- 1990’s: Kyoto Accords, Global warming