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Where in the U.S. Constitution are states given the right to "check" a tyrannical federal government?

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    Could you clarify "tyrannical" and "federal government"? Are you asking about an executive who is disregarding laws and the Constitution? Or all Federal branches?
    – Schwern
    Feb 23 at 23:55
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    @Schwern - The use of tyrannical and federal government is understandable as written. See, Federalist 33 (Hamilton), "If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify."
    – Rick Smith
    Feb 24 at 0:40
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    @RickSmith: we can't read the OP's mind though. Maybe they mean that, maybe something else. Feb 24 at 0:42
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    @RickSmith If it were understandable as written, I wouldn't be asking. If they have a specific meaning, edit it into the answer for clarity to avoid putting a bunch of work into answering the wrong question. Some "what if" scenarios would help. Federalist 33 is circular, what is an example of "tyrannical use of its powers"?
    – Schwern
    Feb 24 at 0:48
  • For example, are we talking about a total break down where Federal officers are simply ignoring the law? Or are we talking about how a state can assert checks and balances via a functioning Federal system so they can't pass a law saying, for example, Ohio has to pay double taxes?
    – Schwern
    Feb 24 at 1:33

2 Answers 2

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10th Amendment

The 10th Amendment to the Constitution limits the power of the Federal government.

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.

This has undergone many interpretations. Modern interpretations include...

  • The means by which a state elects its Federal officials such as Senators, Representatives, and Presidential Electors. So long as it does not run afoul of the US Constitution.
  • States cannot be required to enforce Federal law nor required to pass laws (NY vs US, 1992)

Article 1, Section 9

These clauses put limits on the Federal government's power, including...

  • No Tax or Duty shall be laid on Articles exported from any State.
  • No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

Senators

Each state gets equal representation in the US Senate, two senators represent each state in the Federal government. In addition to the normal Congressional powers of voting on laws, proposing Constitutional amendments, overriding Presidential veto, Senators can be a check on the Federal government by...

None of this gives any special power to any one state, but a majority (in some cases a super-majority) of states can coordinate to block Federal power.

In practice, Senators often put the needs of their national party above the needs of their state.

House of Representatives

Similarly, each state gets Federal representatives according to their population. How these districts are divided is largely up to the state, but each only represents people within a state; no representative district crosses state boundaries.

In addition to the normal Congressional powers of voting on laws, proposing Constitutional amendments, overriding Presidential veto, Representatives can be a check on the Federal government by...

  • Along with the Senate, the House can remove Federal officers via impeachment.

In practice, Representatives often put the needs of their national party above the needs of those they represent.

Electoral College

The President and Vice President are chosen by electors chosen by the states. Each state is guaranteed at least 3 electors, no matter how small their population. This gives smaller states a larger say in presidential elections.

Thus the states can elect a president despite their losing the national popular vote. This has happened twice in recent years, 2000 and 2016.

State Militias

Under Article 1, Section 10, Clause 3 aka "The Compact Clause"...

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

While intended to limit the state's power, the Compact Clause allows a state to defend itself if there is an imminent threat of invasion. This has been interpreted to allow states to maintain their own militaries, controlled by the governor, and separate from the National Guard. Unlike the National Guard, these State Defense Forces cannot be called upon by the Federal government.

For example, here in Oregon we have the Oregon Civil Defense Force (ORCDF). Unlike the Oregon National Guard, the ORCDF's commander in chief is the Governor of Oregon.

In addition, states can call upon their "unorganized militia". This is basically private citizens. For example, Washington State Title 38...

38.08.050 Governor may order out unorganized militia. In event of, or imminent danger of, war, insurrection, rebellion, invasion, tumult, riot, resistance to law or process or breach of the peace, if the governor shall have ordered into active service all of the available forces of the organized militia of Washington and shall consider them insufficient in number to properly accomplish the purpose, he or she may then in addition order out the unorganized militia or such portion thereof as he may deem necessary, and cause them to perform such military duty as the circumstances may require.

Prosecution of Federal officials for state crimes

Article VI, Clause 2 (the Supremacy Clause) means that when state law and Federal law conflict, Federal law wins. Title 28, Chapter 89 governs all the ways cases may be moved from state to Federal sources.

However, this is not blanket immunity (but who knows?). A Federal official can be tried for violations of state law if it is determined they were not acting in their official capacity. We are seeing this play out in real time in The State of Georgia v. Donald J. Trump, et al..

Lawsuits

In certain circumstances, states can sue the Federal government if they do not feel the Federal government is following its own laws, rules, and regulations.

This happens in Federal court. It requires an independent Federal judiciary and a Federal government which will honor the rulings to function.

Amend the Constitution

Under Article V, if two-thirds of state legislatures agree, they can call a Constitutional Convention. This has never been used, all amendments have been proposed by Congress.

The proposed amendments must then be ratified by three-fourths of the states.

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  • The Tenth Amendment is not a check against a tyrannical federal government. The Supreme Court, not the state, decides whether a law is within the delegated powers. "The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment, ..." -- United States v. Darby at 124
    – Rick Smith
    Feb 24 at 2:09
  • States Legislatures can also call for an Article V Constitutional Convention. Feb 24 at 3:49
  • @RickSmith "...or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers." The ruling is that the Federal govt has this power delegated to them under the Commerce Clause; the 10th does not apply. One might not agree with court rulings, or the practicality of the 10th, but its purpose is to protect the states. And yes, the Feds decide this which is why "tyranny" needs to be defined; do we assume a functional Federal court?
    – Schwern
    Feb 24 at 23:53
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    @RickSmith tl;dr: The question does not ask whether the Constitutional protections are effective, just what they are.
    – Schwern
    Feb 24 at 23:55
  • @KelvinSherlock I'll add that, thanks.
    – Schwern
    Feb 24 at 23:58
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Senators represent the states in Congress.

Art.I §3 cl.1:

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.

Federalist 62 explains that one role of the Senate is to preserve "residuary sovereignty ... against an improper consolidation of the States into one simple republic".

In this spirit it may be remarked, that the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty. So far the equality ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic.

Another advantage accruing from this ingredient in the constitution of the Senate is, the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States.

With the advent of political parties, the states transferred their selection of senators from the legislature to the people in the Seventeenth Amendment.

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; ...

Though the Senate was intended as a check on federal power, it no longer works that way in practice due to the major influence of national political parties.

Perhaps this may be made clearer by noting that the text of the Constitution is not, nor can it be, a "check" on the actions of government. The meaning of the text is entirely subject to interpretation. Let's take the Tenth Amendment as an example because it was mentioned in another answer.

Tenth Amendment:

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 implied limit, "powers not delegated ... are reserved", depends entirely on the interpretation of those delegated powers. There were two significant positions on how those powers were to be interpreted. James Madison said they were governmental powers and provided a description in Federalist 41 through 44. Alexander Hamilton said the powers were legislative and presented a general description in Federalist 33.

What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the MEANS necessary to its execution? What is a LEGISLATIVE power, but a power of making LAWS? What are the MEANS to execute a LEGISLATIVE power but LAWS? What is the power of laying and collecting taxes, but a LEGISLATIVE POWER, or a power of MAKING LAWS, to lay and collect taxes? What are the proper means of executing such a power, but NECESSARY and PROPER laws? [1]

I have applied these observations thus particularly to the power of taxation, because it is the immediate subject under consideration, and because it is the most important of the authorities proposed to be conferred upon the Union. But the same process will lead to the same result, in relation to all other powers declared in the Constitution.

In practice, there is a huge difference between a legislative power and a governmental power. For example, the commerce clause, —

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

The meaning of "regulate commerce" as a legislative power is to allow regulation of anything and everything that touches such commerce, even indirectly.

As a governmental power, "regulate commerce" means "to put in good order the conduct of business with ...", where "put in good order" may include such things as, generally, to "define and punish fraud and promote safety and efficiency in the conduct of business with ...". (Here, "regulate" has the same sense as "well-regulated" for militias in the Second Amendment.) Specifically, as a governmental power, Congress cannot regulate intrastate commerce that does not directly involve transportation across state lines.

If one accepts the Madisonian interpretation (as I do) over the Hamilton-Story [2] interpretation (as the Supreme Court did), then the Supreme Court, in its various rulings, has violated the Tenth Amendment by delegating to the United States powers reserved to the state, or to the people. And, Congress has made laws not proper for carrying into execution the narrowly delegated powers.

The Tenth Amendment was never a check on either the Congress or the Supreme Court, but a Senate adopting the Madisonian interpretation could have prevented legislation contrary to Madison's views.


1 Hamilton asks, "What is the power of laying and collecting taxes, but a LEGISLATIVE POWER, ...". The "laying and collecting [of] taxes" is done by executive departments under laws "necessary and proper for carrying into execution" the governmental power "to lay and collect taxes ...". Unfortunately, Hamilton didn't realize that.

2 Justice Joseph Story, in his Commentaries on the Constitution, favored the Hamiltonian interpretation. The Court relied on the Commentaries in United States v. Butler (1936) to establish dicta for subsequent rulings concerning President Franklin Roosevelt's New Deal.

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  • 1
    "Though the Senate was intended as a check on federal power, it no longer works that way in practice." Is the implication that now that Senators are elected directly by the people of the state they no longer represent the state?
    – Schwern
    Feb 23 at 23:52
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    @Schwern - I've added part of the following paragraph from Federalist 62 that hopefully will clarify. While Senators theoretically represent their respective states, in practice they represent political parties. Those political parties often have the same goals in both the House and Senate.
    – Rick Smith
    Feb 24 at 0:29
  • re: "Though the Senate was intended as a check on federal power, it no longer works that way in practice due to the major influence of national political parties." It still works this way because of the scope of authority that the Senate has. For example, the Senate's power to confirm judges has resulted in (essentially) overturning Roe v Wade, which a number of Republican-controlled states wanted. But NY Republicans have generally been pro-choice, so they would not have signed on to this. This was done by states which wanted to overturn it.
    – wrod
    Feb 26 at 1:32

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