Most examinations of the doctrine of “states’ rights” are constitutional in scope. That is, they consider the meaning, import and impact of the term in light of the 10th Amendment. In order to get to where I’m going with this look at “states’ rights,” we’re going to have to walk over some explanatory constitutional ground, but let me warn you in advance to put on your best hiking boots … we’re going to venture all the way out the other side of that ground and into some very different territory before we’re done.

The two obvious starting points on our journey are where the doctrine comes from and what it’s been used for. Here’s the 10th Amendment, from which the doctrine is derived:

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.

An important thing to notice: “States’ rights” isn’t mentioned by name in the amendment; as a matter of fact, “rights” aren’t mentioned at all. Rights are, however, mentioned in the 9th Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

An equally important thing to notice: “States” aren’t mentioned in the amendment that talks about “rights.”

The framers of the Constitution were onto something there, I think — they recognized at least two key distinctions between “rights” and “powers.” The first distinction was that “rights” were considered natural possessions of “the people,” who “retained” them; while “powers” were considered conditional delegations to one level of government or another.

The doctrine of “states’ rights” turned these distinctions on their heads. That last little clause of the 10th Amendment (”or to the people”) was memory-holed by its propounders, who asserted that in the absence of a federal “power” to do X, that “power” not only automatically devolved to another level of government but somehow, in the process, magically transformed itself into a “right” — a natural possession, rather than a delegation — retained by the state, rather than by the people.