The constitutional dilemma: Federal protection of rights versus the claim of state sovereignty

“ It is obviously impracticable, in the federal government of these states, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all. Individuals entering into society must give up a share of liberty, to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstances, as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be surrendered and those which may be reserved. ”

“ Our federal system of government is based upon the theory of leaving to each community, to each State, the control over those things which affect only its own members and which the people of the locality themselves can best grapple with, while providing for national regulation in those matters which necessarily affect the Nation as a whole. It seems to me that such questions as national sovereignty and States' rights need to be treated not empirically or academically, but from the standpoint of the interests of the people as a whole. ”

“ The wisest statesmen can do no more than repose that confidence in the safest hands, while at the same time, he surrounds it with all practicable guards against abuse. If the States may abuse their reserved rights in the manner contemplated by the President, the Federal Government, on the other hand, may abuse its delegated rights. There is danger from both sides, and as we are compelled to confide in the one or the other, we have only to inquire, which is most worthy of our confidence. ”

“ Resolved, That the sovereignty and independence of the states, as guaranteed by the constitution of the United States, ought to be most zealously guarded, and every attempt to depreciate the value of those rights, and to consolidate these states into one general government, is hostile to the liberty and happiness of the people, and merits our most decided disapprobation. ”

“ Whenever an immunity or privilege of a citizen of the United States is trodden down by the State, or by an individual, under the circumstances mentioned in the Civil Rights Act—that is to say, on account of race, color, or previous condition of servitude—then the Federal Government must interfere. The Government must defend the immunities and privileges of its citizens, not only from State invasion, but from individual invaders, when that invasion is based upon the distinction of race, color, or previous condition of servitude. ”

“ Was it the purpose of the nation simply to destroy the institution, and then remit the race, theretofore held in bondage, to the several states for such protection, in their civil rights, necessarily growing out of freedom, as those states, in their discretion, choose to provide? Were the states, against whose solemn protest the institution was destroyed, to be left perfectly free, so far as national interference was concerned, to make or allow dircriminations against that race, as such, in the enjoyment of those fundamental rights that inhere in a state of freedom? ”

“ Every citizen, when his privileges and immunities are invaded by the legislature of a State, has the right of appeal from such. State to the Supreme Court of the nation.
9. When a State fails to pass any law protecting a citizen from discrimination on account of race or color, and fails, in fact, to protect such citizen, then such citizen has the right to find redress in the Federal Courts. ”

“ In other words, if the State in which a citizen of the United States may reside can not, does not or will not protect him in the exercise and enjoyment of his personal, civil and political rights, he is without a remedy. The result is that the Federal Government is placed in the awkward and anomalous position of exacting support and allegiance from its citizens, to whom it can not in return afford protection, unless they should be outside the boundaries of their own country. ”

“ When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men's rights are protected. ”

“ Exemption from race discrimination in respect of the civil rights which are fundamental in citizenship in a republican government, is, as we have seen, a new constitutional right, created by the nation, with express power in congress, by legislation, to enforce the constitutional provision from which it is derived. ”

“ What I affirm is that no state, nor the officers of any state, nor any corporation or individual wielding power under state authority for the public benefit or the public convenience, can, consistently either with the freedom established by the fundamental law, or with that equality of civil rights which now belongs to every citizen, discriminate against freemen or citizens, in their civil rights, because of their race, or because they once labored under disabilities imposed upon them as a race. ”

“ I venture, with all respect for the opinion of others, to insist that the national legislature may, without transcending the limits of the constitution, do for human liberty and the fundamental rights of American citizenship, what it did, with the sanction of this court, for the protection of slavery and the rights of the masters of fugitive slaves. ”

“ You did not surrender your sovereignty. You gave to the Federal Government certain functions. It was your agent, created for specified purposes. It can do nothing save that which you have given it power to perform. Where is the grant? Has it a right to determine what shall be property? Surely not; that belongs to every community to decide for itself; you judge in your case—every other State must judge in its case. The Federal Government has no power to destroy property. Do you pay taxes, then, to an agent, that he may destroy your property? ”

“ The States intrusted to the Federal Government, as their agent, some of the functions of sovereignty, but the performance of these by authority of the people of the States did not involve a violation of a cardinal feature in the American theory; that sovereignty belonged alone to the people, and the resolutions of ratification of the Constitution by the States show whether the purpose was to transfer the power or only to authorize its use. ”

“ Sovereignty in this country is in the people, but the States have certain rights, and those rights are absolutely necessary to the maintenance of our system of government. What are those rights? The right to determine and fix the legal status of the inhabitants of the respective States; the local powers of self-government; the power to regulate all the relations that exist between husband and wife, parent and child, guardian and ward; all the fireside and home rights, which are nearer and dearer to us than all others. ”

“ If it be treason for a citizen to defend the State under whose protection he lives, even against the Federal Government, the Constitution has placed him in the cruel dilemma of being, in the event of conflict between his State and the United States, necessarily compelled to commit treason against one or the other. This surely cannot be the condition to which our fathers reduced us when they entered into the compact of union. Allegiance is everywhere due to the sovereign only. That sovereign, under the American system, is the People—the People of the State to which the individual belongs ”

“ Resolved, That, should the independence of the states, as secured by the constitution, be destroyed, the liberties of the people in so extensive a country cannot long survive. To suffer the United States' courts to decide on State Rights will, from a bias in favor of power, necessarily destroy the Federal Part of our Government: And whenever the government of the United States becomes consolidated, we may learn from the history of nations what will be the event. ”

“ But the court says that congress did not, in the act of 1866, assume, under the authority given by the thirteenth amendment, to adjust what may be called the social rights of men and races in the community. I agree that government has nothing to do with social, as distinguished from technically legal, rights of individuals. No government ever has brought, or ever can bring, its people into social intercourse against their wishes. Whether one person will permit or maintain social relations with another is a matter with which government has no concern. ”

“ The right, for instance, of a colored citizen to use the accommodations of a public highway upon the same terms as are permitted to white citizens is no more a social right than his right, under the law, to use the public streets of a city, or a town, or a turnpike road, or a public market, or a post-office, or his right to sit in a public building with others, of whatever race, for the purpose of hearing the political questions of the day discussed. ”

“ It is the policy of the State College Area School District to oppose and prohibit, without qualification harassment based on race, color, religion, national origin, gender, sexual orientation, disability, and other forms of harassment. Harassment is not only a form of discrimination, but also disrespectful behavior which will not be tolerated. ”

“ Disrespect among members of the school community is unacceptable behavior which threatens to disrupt the school environment and well being of the individual.
Harassment means verbal or physical conduct based on one's actual or perceived race, religion, color, national origin, gender, sexual orientation, disability, or other personal characteristics, and which has the purpose or effect of substantially interfering with a student's educational performance or creating an intimidating, hostile or offensive environment. ”

“ By recognizing a cause of action against school districts for failing to reasonably address peer-based, affectional orientation harassment, we further the Legislature's goal of eradicating the invidious discrimination faced by students in our public schools. ”

“ See N.J.S.A. 18A:37-13 to -18 (enacting procedures to curb acts "reasonably perceived as being motivated either by actual or perceived characteristic, such as ... sexual orientation") . As the Legislature found,
[A] safe and civil environment in school is necessary for students to learn and achieve high academic standards; harassment, intimidation or bullying, like other disruptive or violent behaviors, is conduct that disrupts both a student's ability to learn and a school's ability to educate its students in a safe environment. ”

“ Students in the classroom are entitled to no less protection from unlawful discrimination and harassment than their adult counterparts in the workplace. See K.P., supra, 228 F. Supp.2d at 550.
C. We are satisfied that the LAD standard governing hostile work environment sexual harassment, as modified below, comports best with the circumstances presented in this appeal. A contrary conclusion [A550] would be at loggerheads with the State's strong policy of protecting students. Educators have " [n] o greater obligation ... ”

“ An inflexible requirement that people perform certain tasks for themselves as part of the process, such as completing paperwork at the vaccine site or rolling up one’s sleeve to get vaccinated, could have a discriminatory effect on individuals with disabilities. Reasonable Modifications. A covered entity must make reasonable modifications in policies, practices, or procedures, when necessary to avoid discrimination on the basis of disability, unless making the modifications would fundamentally alter the nature of the service, program, or activity. ”

“ The School Board also believes allowing Mr. Adams access to the boys’ restroom threatens the time-honored convention of separate bathrooms for men and women, because any person could “claim discrimination” and use a different bathroom for “no reason at all.” Neither are we convinced by this argument. Mr. Adams succeeds on his constitutional claim because, first, there is a dearth of evidence in this record that transgender students are a threat to other students’ privacy. Second, the record demonstrates that the School Board subjected Mr. Adams to gender stereotyping. ”

“ The bathroom policy creates two groups—students who can use the boys’ bathroom and students who can use the girls’ bathroom. Both groups contain transgender students and non-transgender students, so a “lack of identity” exists between the policy and transgender status. Geduldig, 417 U.S. at 496 n.20.
At most, the policy has a disparate impact on transgender students, which is not enough to create a sex-based classification. Facially neutral policies trigger intermediate scrutiny only if “invidious gender-based discrimination” motivated them. ”

“ The honorable gentleman has said truly, that there can be no subordinate sovereignty. Now, if there cannot, my position is, that the sovereignty resides in the people; they have not parted with it; they have only dispensed such portions of power as were conceived necessary for the public welfare. This Constitution stands upon this broad principle. I know very well, sir, that the people have hitherto been shut out of the federal government; but it is not meant that they should any longer be dispossessed of their rights. ”

“ Certainly, the citizens of America will be as tenacious in the one instance as in the other. They will be interested, and I hope will exert themselves, to secure their rights not only from being injured by the state governments, but also from being injured by the general government.
"The power over elections, and of judging of elections, gives absolute sovereignty." This power is given to every state legislature; yet I see no necessity that the power of absolute sovereignty should accompany it. My general position is, that the absolute sovereignty never goes from the people. ”

“ The national government possesses those powers which it can be shown the people have conferred on it, and no more. All the rest belongs to the state governments or to the people themselves. So far as the people have restrained state sovereignty, by the expression of their will, in the Constitution of the United States, so far, it must be admitted, state sovereignty is effectually controlled. ”

“ Federal liberty is to the states what civil liberty is to private individuals; and states are not more unwilling to purchase it, by the necessary concession of their political sovereignty, than the savage is to purchase civil liberty by the surrender of the personal sovereignty which he enjoys in a state of nature. A definition of the cases in which the negative should be exercised is impracticable. A discretion must be left on one side or the other. Will it not be most safely lodged on the side of the national government? ”

“ In considering and developing the nature and end of the system before us, it is necessary to mention another kind of liberty, which has not yet, as far as I know, received a name. I shall distinguish it by the appellation of federal liberty. When a single government is instituted, the individuals of which it is composed surrender to it a part of their natural independence, which they before enjoyed as men. When a confederate republic is instituted, the communities of which it is composed surrender to it a part of their political independence, which they before enjoyed as states. ”

“ Unless your government is respectable, foreigners will invade your rights; and to maintain tranquillity you must be respectable; even to observe neutrality you must have a strong government. I confess our present situation is critical. We have just finished a war which has established our independency, and loaded us with a heavy debt. We have still every motive to unite for our common defence. Our people are disposed to have a good government ”

“ A citizen of Massachusetts or this country might be ruined before he could recover a debt in that state. It is necessary, therefore, in order to obtain justice, that we recur to the judiciary of the United States, where justice must be equally administered, and where a debt may be recovered from the citizen of one state as soon as from the citizen of another.
As to a bill of rights, which has been brought forward in a manner I cannot account for, it is unnecessary to say any thing. ”

“ Yet it is necessary, when a citizen of one state cannot obtain an impartial trial in another, that, for the sake of justice, he should have a right to appeal to the supreme judiciary of the United States to obtain redress ”

“ The sentiment to which I have referred propounds that state sovereignty is only to be controlled by its own "feeling of justice;" that is to say, it is not to be controlled at all; for one who is to follow his own feelings is under no legal control. Now, however men may think this ought to be, the fact is, that the people of the United States have chosen to impose control on state sovereignties. There are those, doubtless, who wish they had been left without restraint; but the Constitution has ordered the matter differently. ”

“ The general government will be as ready to preserve the rights of the states, as the latter are to preserve the rights of individuals,—all the members of the former having a common interest, as representatives of all the people of the latter, to leave the state governments in possession of what the people wish them to retain. ”

“ We believe that behind the rights of the Federal Government and the rights of the several States are fundamental rights more sacred than either, namely the rights of the individual to life, liberty, and happiness; that out of these rights all just governments flow, and whatever hinders the growth of the individual, restricts his liberty, and destroys his happiness, is tyranny, and it is his sacred duty to resist it to the death, as it is that of the State to resist the Federal Government, in order to secure larger liberty for its whole people. ”

“ Can it be then that States, possessing such vast powers upon subjects over which it is admitted that they are sovereign—clothed to such an extent with all the attributes of independent governments, may be deprived of them all, without the power or right to do one act in their own defense? Such a doctrine never can be admitted with safety. It is a right inherent in sovereignty to defend itself. It is a reserved right of the States which they hold, not under the constitution, but as a matter of necessity, to defend themselves from destruction. ”