“IF THE LORD WANTED YOU TO HAVE A TATTOO, HE WOULD HAVE PUT IT ON YOU”: FEDERALISM IN THE UNITED STATES

This is “My Constitution,” a podcast from the Center for C-SPAN Scholarship & Engagement at Purdue University. In this episode, we’ll discuss the idea of federalism.

In 1999, a South Carolina television station, WBTW, was developing a series on tattooing. Tattoo artist, Ron White, was featured in one of the episodes, and in that program, he was filmed giving someone a tattoo. Following the broadcast, White was arrested by the county sheriff and charged with violating a South Carolina law which prohibited tattooing.

South Carolina was one of two states at the time that had such a law; the other was Oklahoma. The tattoo artist marshaled a number of arguments in his defense. Most notably, White argued that South Carolina’s law violated his freedom of speech protected by both the state and federal constitutions. The trial court rejected his arguments and stressed the important role the government played in developing regulations that protected the health and welfare of its citizens.

Originally fined $2,500 and sentenced to a year in prison, White was eventually put on probation and fined $500. Ron White’s appeal to the South Carolina Supreme Court was unsuccessful. The Court rejected White’s free speech argument. White’s appeal to the U.S. Supreme Court was denied. Not everyone was disappointed by White’s failed judicial odyssey. South Carolina State Senator Jake Knotts remarked, “If the Lord wanted you to have a tattoo, he would have put it on you.”

In the second podcast of this series, we discussed the Constitutional Convention in Philadelphia. As you’ll remember, the constitutional tapestry the Framers produced divided power between the states and the national government.

Over the years, this division of power, which we call Federalism, has been shaped by a number of actors, both state and national. Some of them have favored a stronger role for the national government in the lives of the American people. Others have made decisions which have shifted power back to the states.

An early example of the tension between the federal authority and the power of the states occurred during the administration of Andrew Jackson over South Carolina’s opposition to the imposition of federal tariffs.

Here’s University of Texas Professor of History, H. W. Brands, discussing Jackson’s response to the so-called nullification crisis of 1832 and 1833:

So, he was throwing down the gauntlet to those who would say, you know what, the states put this country together, the states can take it apart if they want. When South Carolina persisted, saying that if the federal government tried to enforce that law, the tariff law, in within the borders South Carolina, South Carolina would exercise its right to secede from the union. Jackson got his secretary of war to draw up plans for an invasion of South Carolina, and he prepared to lead the invasion himself. At the moment of crisis, a congressman from South Carolina came to the White House. This was just before the winter break, and he was about to go back to South Carolina, and he dropped in, he said, “Mr. President, do you have any message for my constituents?” And Jackson said, “Yes, I do. Please tell my friends in South Carolina that if a single drop of blood is shed against the United States, I will hang the first person I find from the highest tree in the state.” And in fact, the crisis passed.

Underlying these decisions about federal-state relations is the constitutional hardware that gives life to federalism. In the next section of this podcast, we’ll look at some of this constitutional architecture.

Article I of the Constitution lists the delegated powers of Congress. It has been argued that by specifically listing these, rather than providing Congress with a general grant of power, the Framers limited the national legislature. However, this restriction of the legislative branch was more than balanced by the Necessary and Proper Clause found in Article I. Also known as the Elastic Clause, this part of the Constitution gives Congress the capacity to carry out its delegated powers.

Article VI of the Constitution, which contains the Supremacy Clause also tips the scale in favor of the national government. But what does the Supremacy Clause say and what is its implication for federal-state relations? Here’s American University law professor, Stephen Wermiel:

The Constitution and the laws made pursuant to it are the supreme law of the land, meaning that if a state legislates or acts in a way that's inconsistent with the Constitution, or laws passed by Congress pursuant to the Constitution, that that state law has to give way.

The Fourteenth Amendment also restricts the actions of the states. Over time, the Supreme Court has used the Due Process Clause of that Amendment to apply most of the Bill of Rights to the states thus restricting state as well as federal action. What are some of the powers that the states possessed under the new Constitution?

Well first, their territorial integrity was largely assured. Second, the states could regulate commercial activity within their own boundaries. And third, they could also tax their citizens and maintain their own court systems.

One group, in particular, was concerned that the new Constitution created an imbalance between the states and the federal government. Former Dickinson College Political Science professor, Eugene Hickok talks about the Anti-Federalists:

The Anti-Federalists, among them George Mason, Luther Martin, individuals who argued that this new Constitution really represented a radical and perhaps dangerous departure from the Articles of Confederation, that it created a strong, too strong central government, that the sovereignty of the states was threatened.

The Anti-Federalists also called for a Bill of Rights, which would protect individual rights. One part of the Bill of Rights is particularly important for discussions of Federalism, and that is the Tenth Amendment.

In brief, the Tenth Amendment said that the states could exercise powers in those areas that were not carved out for the central government, and from which the states were not constitutionally prohibited to act.

One final amendment is worth noting in our discussion of the constitutional building blocks of Federalism, and this is the Eleventh Amendment. Ratified in 1795, it provides states with some protection from lawsuits.

A number of arguments have been made in favor of federalism. To understand the first of these arguments, we’ll take a look at a case decided by the Supreme Court in 1973. The case is Miller v. California. Miller allowed the Court to revisit the issue of obscenity.

Marvin Miller mailed unsolicited material advertising adult publications. Convicted of violating the State’s obscenity law, Miller argued that California’s law violated his First Amendment right to freedom of speech.

In his opinion for the Court, Chief Justice Warren Burger rejected the argument that obscenity is protected by the First Amendment. Burger further argued that local community standards, not national standards, should be used in defining obscenity. In drawing this conclusion, the Chief Justice talked about the nation’s diversity. According to Burger, “People in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity.” Burger’s opinion captured one of main arguments trumpeted by advocates of federalism. Simply put, people with different views often live in the same country, and this cultural diversity is best served by allowing them to develop policies that best reflect the values they hold.

A federal system of government also allows states to act as “laboratories of democracy.” Simply put, individual states can experiment with different policies. The success or failure of the policy allows other governments to determine whether they wish to pursue a similar policy path. Here’s President George H. W. Bush discussing this idea in 1991:

And it is, of course, an ongoing experiment. A continuing experiment from parental choice in childcare and education, to tenant ownership in housing, from enterprise zones to create jobs, to what we call these drug free zones to take back the streets. State and local governments are finding the new approaches to solving these problems.

Justice Louis Brandeis highlighted this idea in a case called New State Ice Co. v. Liebmann.

A case involving the licensing of businesses that wished to sell ice, it was decided by the Supreme Court in 1932. In his dissenting opinion, Justice Brandeis wrote, “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

An example of a state that has blazed a policy trail is California. It was the first state in the nation to allow for medical use of marijuana. Another part of the country which took the “road less travelled” was Wyoming. Then a territory, Wyoming granted women the right to vote in 1869. The Nineteenth Amendment to the Constitution granting women the right to vote nationwide wasn’t ratified until 1920. We’ll learn more about that in the last podcast of this series.

While Federalism has its proponents, it also has its critics. One of the consequences of Federalism is a patchwork quilt of laws that results. Let’s look at an example that illustrates the tension, that can sometimes occur, between the idea of equal treatment and the right of individual states to develop their own policies.

Described, by the head of the Maine State Police, as “a crime of horrific proportions,” Christian Nielsen killed four people at the Black Bear Bed and Breakfast in western Maine in 2006. His youngest victim was 30 years of age. The oldest victim 65. After the shooting, Nielsen dismembered their bodies. He was sentenced to a term of life in prison without the possibility of parole.

In another case, on June 14, 1993, 18-year-old Billy Joe Wardlow took part in a robbery in a small northeast Texas town. The robbery led to the shooting death of Carl Cole. Mr. Cole was 82 years old. He was shot in the head. A few days later, Wardlow and his girlfriend were arrested in Madison, South Dakota. Less than two years after he killed Mr. Cole, Billy Wardlow was sentenced to death.

The facts in the two cases differ. Both men were convicted of murder. Their sentences were, however, very different. By enabling states to pursue different approaches to criminal justice, federalism allows the states to treat somewhat similar cases and individuals very differently. This podcast began with a discussion of the arrest of a tattoo artist for violating a state law. We then looked at a crisis, the Nullification Crisis of the early nineteenth century, that tested federal-state relations. Our attention then turned to the constitutional blueprints underlying federalism. Our review of some of the arguments made in favor of federalism was followed by an argument that raised concerns about the impact of different state laws on equal treatment. Tattoo artist Ron White lost a battle when he took his concerns to the South Carolina courts. Ultimately, however, he won the war. In 2004, South Carolina legalized tattooing. Following the South Carolina legislature’s vote on the issue, Mr. White remarked, “We’re celebrating. I want to open a tattoo shop and be a free American in South Carolina. I fought the law and won.”

Further information on some of the issues discussed in this program, including questions to ponder, our sources, and additional clips from the C-SPAN Archives, can be found on the website of the Center for C-SPAN Scholarship & Engagement. The address is cla.purdue.edu/cspan. The Center is affiliated with the Brian Lamb School of Communication at Purdue University.

PODCAST GOAL

To acquaint the student with the idea of federalism.

QUESTIONS TO PONDER

As we discussed in this podcast, federalism has its supporters and detractors. Are there any additional arguments (both pro and con) that you think could be added to this wider debate about the value of federalism?

One of the consequences of federalism in the United States is that states often pursue different policies. Here’s an example: In 1995, the state of Oregon pioneered the legalization of Physician-Assisted Death. This procedure allows terminally ill individuals to seek the help of physicians in ending their lives. As part of the process, the physician prescribes the individual with a lethal dose of medicine which the patient may take to end their life. A small number of states, and the District of Columbia, now allow for Physician-Assisted Death.
What policies should be left to the states?

Here’s a related topic. In the podcast, we discussed the idea that equal treatment can be undermined when states pursue different policies. According to Political Scientist, Marilyn Mertens “The diversity of state laws and procedures creates an unfair situation for many citizens.” What do you think of this statement? For example, is it fair that an individual can commit essentially the same crime in one state yet receive a markedly more severe punishment than an individual who commits the same crime in another state?

One of the arguments raised by Ron White against South Carolina’s law banning tattooing was that the law violated his First Amendment rights. Do you think this argument has merit? If you were defending Mr. White, what other arguments would you make? What arguments would you make if you were defending the state’s position?

OUR SOURCES

Augustyn, A. (2019, July 19). Nullification crisis. Encyclopaedia Britannica. https://www.britannica.com/topic/nullification-crisis

Caplan, L. (2019, December 4). This man should not be executed. American Scholar. https://theamericanscholar.org/this-man-should-not-be-executed/#.XpgAgdNKjOS

Chapman, S. (2018, December 08). The right to tattoo. Baltimore Sun. https://www.baltimoresun.com/news/bs-xpm-2002-07-30-0207300215-story.html

Clark, B. R., & Jackson, V. C. (n.d.). The Eleventh Amendment. National Constitution Center. https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xi/interps/133

Emanuel, S. L., (2006) Emanuel law outlines: Constitutional law (34^th ed., p. 752). New York:

Wolters Kluwer.

Fiorina, M.P., Peterson, P. E., Johnson, B., & Mayer, W. G. (2011). America’s new democracy (6^th ed., pp. 46-68). New York City, NY: Pearson.

Fiorina, M. P., Peterson, P. E., Johnson, B. & Mayer, W. G. (2011). The new American

democracy (7^th ed., pp. 63-96), New York City, NY: Pearson.

Hail, M. W. (n.d.). Federalism. The Free Speech Center. https://www.mtsu.edu/first-amendment/article/807/federalism

Jubera, D. (2018, October 24). Tattoo ban ends in South Carolina. Orlando Sentinel. https://www.orlandosentinel.com/news/os-xpm-2004-05-22-0405220331-story.html

Kilpatrick, J. (2002, August 1). Constitution's protection of speech is more than skin-deep. Deseret News. https://www.deseret.com/2002/8/1/19669282/constitution-s-protection-of-speech-is-more-than-skin-deep

Linder, D. O. (2019). Eleventh amendment limitations on federal power. Exploring Constitutional Law. http://law2.umkc.edu/faculty/projects/ftrials/conlaw/eleventhamendment.html

Linder, D. O. (2019). The question of states' rights: The Constitution and American federalism (An introduction). Exploring Constitutional Law. http://law2.umkc.edu/faculty/projects/ftrials/conlaw/statesrights.html

Mertens, M. S. (1997). Instructor’s manual we the people: An introduction to American government (p. 30), New York, NY: W.W. Norton.

Miller v. California. (n.d.). Oyez. https://www.oyez.org/cases/1971/70-73

Monk, L. R. (n.d.). Federalism. Constitution USA with Peter Sagal. https://www.pbs.org/tpt/constitution-usa-peter-sagal/federalism/#.Xpf_jdNKjOS

NEW STATE ICE CO. v. LIEBMANN. (n.d.). Legal Information Institute. https://www.law.cornell.edu/supremecourt/text/285/262

An overview of abortion laws. (2020, April 01). Guttmacher Institute. https://www.guttmacher.org/state-policy/explore/overview-abortion-laws

Quill, T. E., & Sussman, B. (n.d.). Physician-assisted death. The Hastings Center. https://www.thehastingscenter.org/briefingbook/physician-assisted-death/

Ramos, M. (n.d.). Anti-Federalists. The Free Speech Center. https://www.mtsu.edu/first-amendment/article/1175/anti-federalists

Sabar, A. (2006, September 06). Man is charged in killings at MAINE bed and breakfast. New York Times. https://www.nytimes.com/2006/09/06/us/06maine.html

State medical marijuana laws. (2020, March 10). National Conference of State Legislatures. https://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx

Turley, J. (2002, September 30). A legal tattoo hullabaloo. Los Angeles Times. https://www.latimes.com/archives/la-xpm-2002-sep-30-oe-turley30-story.html

Wyoming and the 19th Amendment. (n.d.). National Park Service. https://www.nps.gov/articles/wyoming-women-s-history.htm

Zuckert, M. (2006). Constitutional Convention of 1787. Center for the Study of Federalism. http://encyclopedia.federalism.org/index.php/Constitutional_Convention_of_1787

UNITED STATES SUPREME COURT CASES

Miller v. California (1973) -- https://www.oyez.org/cases/1971/70-73. In this case, addressing the issue of obscenity, you will find Chief Justice Warren Burger’s discussion of the importance of cultural diversity. The Oyez website includes the Court’s opinion, a summary of the facts in the case, the legal question posed, oral argument, and the opinions issued by members of the Court.

United States v. Lopez (1995) – https://www.oyez.org/cases/1994/93-1260. A case involving the Gun-Free School Zones Act, Lopez provides an example of the Court pushing back against the actions of the federal government. Among other things, this link will take you into the Court’s chamber for oral argument and the announcement from the bench.

Wickard v. Filburn (1942) -- https://www.oyez.org/cases/1940-1955/317us111. A classic case involving congressional power and the Commerce Clause, Wickard focuses on the reach of the federal government in regulating agricultural activity.

ADDITIONAL CLIPS AND PROGRAMS FROM THE C-SPAN ARCHIVES

Andrew Jackson and Crisis Management. H. W. Brands’ discussion of Andrew Jackson and the “nullification crisis” is featured in this podcast. A prolific author, Professor Brands wrote Andrew Jackson: His Life and Times.

https://www.c-span.org/video/?316128-1/andrew-jackson-crisis-management
The Dirty Dozen. In this presentation, authors William Mellor and Robert Levy discuss a number of Supreme Court case (including Wickard v. Filburn). The role of the Court in expanding the power of the federal government is at the heart of their discussion. Mellor and Levy are the authors of the book The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom.

https://www.c-span.org/video/?206550-1/the-dirty-dozen&start=2997
Federalism and the Issue of Marijuana. This spirited debate on the floor of the House of Representatives in 2015 illustrates the importance of federalism today.

https://www.c-span.org/video/?c4544627/federalism-issue-marijuana
The Federalist Papers. The Federalist Papers are the focus of this talk by eminent historian, Bernard Bailyn. Bailyn is a long-time member of the Department of History at Harvard University.

https://www.c-span.org/video/?70687-1/the-federalist-papers
FDR Legacy in the Federalism Debate. One of the most dramatic expansions of federal government power in US History occurred during the administration of President Franklin Delano Roosevelt. In this program, “Panelists discuss[] the proper role of local, state and federal government and President Franklin Roosevelt’s legacy in this debate.”

https://www.c-span.org/video/?76377-1/fdr-legacy-federalism-debate
Government Powers. In this program from the Archives, Eugene Hickok discusses the perspectives of the Federalists and Anti-Federalists. The Federalists favored the ratification of the new Constitution. Their arguments are most famously presented in the Federalist Papers, authored by Alexander Hamilton, James Madison, and John Jay. The Anti-Federalists were concerned with the power of the new national government.

https://www.c-span.org/video/?171324-1/government-powers

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CIVICS LITERACY INITIATIVE

“IF THE LORD WANTED YOU TO HAVE A TATTOO, HE WOULD HAVE PUT IT ON YOU”:

FEDERALISM IN THE UNITED STATES