Providing Balance Through Divided Power

The great struggle between federal power and state sovereignty weaves its threads through the entire tapestry of the American experiment. The Framers understood the tendency of central authority to gather power to itself and thus devised the unique Constitutional solution of divided powers - 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 tenth amendment to the Constitution)

Today, influential political forces push the expansion of increased federal authority into areas traditionally reserved for the states, as the solution to the challenges of an increasingly complex society. Conversely, our thoroughly nationalized political process, which promises all things for everyone, has produced widespread cynicism and disaffection, prompting many to wonder, “What has happened to the 10th Amendment?” It’s an old conflict but the stakes are as high as ever - no less than liberty itself.

Federalism - To Check an Unbridled Government

Although the word Federalism sounds as if it means increased federal control, it is the accepted term for state sovereignty. Federalism is the principle of divided powers. Unlike the separation of powers - powers that overlap between the three branches of federal government and thereby effectively check and balance any single branch from claiming unrestrained power - Federalism declares a clear division of power. It affirms a line between what the central government may control and what jurisdictions belong to state control. It is a different, but no less important, protection against federal autocracy.

The Framers of the Constitution argued Federalism with a passion. In the tender days of the Republic, the persuasive voice of Alexander Hamilton urged the establishment of the strongest possible central government. He worried that strong state sovereignty would limit the supremacy of the fledgling national government. Other Patriots, like Jefferson, Madison and John Jay, remembered, too clearly, the tyrannical, absentee government of Britain. They argued against a government that eventually could acquire repressive powers without the balancing division of power afforded to the states. Thankfully, the tenth Amendment to the Constitution, along with equal representation in the Senate, helped to resolve the debate. But the struggle goes on.

The Expansion of Federal Power

One of the greatest threats to Federalism, or state sovereignty, in the last 100 years took place during the presidency of Franklin Roosevelt. In 1937, Roosevelt threatened to stack the constitutionally conservative Supreme Court with liberal judges to further his New Deal policies. Fortunately, Roosevelt’s attempt to coerce the Court - correctly viewed as a scheme to rig the American judiciary in favor of executive dictatorial power - provoked a national outcry and forced Roosevelt to back down.

Roosevelt, however, was not sidetracked for long from his passion for unrestrained federal expansion and his quest to strip the states of their Constitutional sovereignty. Using the depression as a fulcrum, Roosevelt instituted a host of federal agencies, as part of the New Deal, to supercede state authority. The advent of World War II eventually conquered the depression and post war sensibilities brought the country back to a partial equilibrium between federal power and state sovereignty.

In the 1960’s, Lyndon Johnson sought to recapture the New Deal era of federal power with his Great Society and again pushed federal expansion forward. Then in 1981 the pendulum swung back. President Ronald Reagan vowed “to curb the size and influence of the federal establishment…[because] the federal government is not part of the solution.” Yet, he was forced to act through a Democrat controlled Congress.

The 1990’s saw a return - for the first time in 40 years - of a Republican Congress with the hope of a return of the Constitutional division of power. In the words of John R. Kasich (R-OH), Congress wanted to “return money, power and responsibility to the states.” The results were mixed - one step forward and two steps backward.

Federalizing Crime

Today, the increasing effort to federalize crime provides an excellent example of federal intrusion run amuck. Notwithstanding the willingness, even eagerness, of Congress to take over criminal justice where historically, state and local governments have played the role of front line troops, these efforts have been strongly criticized as ineffective, inefficient, wasteful and often unjust.

Even the number of federal laws can be given only in ballpark figures. At present, the Congressional Research Service cannot count the current number of federal crimes.
· The American Bar Association (ABA) reported in 1998 that there were somewhere upward of 3,300 separate criminal offenses.
· Estimates of how many federal regulations constitute criminal law are even less well settled, but the ABA estimates that there are nearly 10,000.
· In America’s two century legal history, 40% of these laws have been enacted since 1970, as part of the growth of the regulatory state.

The federal government needs to get its priorities straight. Few, outside of Washington, see the value of federal intervention in state and local crime.

Federal Fingers In Every Pie

Teachers, administrators, state school authorities and virtually everyone else in public education - another area traditionally administered on the state and local level - have all felt the heavy hand of federal control on their shoulders. Now, the newest idea fermenting in the halls of Congress concerns private schools. If “choice” in education becomes the norm, which now looks possible, the federal government will lose some of its control. There must be a way, the argument goes, to federally regulate private schools. This idea has not yet found a voice in Congress, but it is a logical step in the progression of federal autocracy.

The depth and breadth of federal encroachment into areas once accepted as logically - even Constitutionally - the province of state sovereignty is nearly endless. It would be easier to number the few areas that remain in the control of state governments.

Federalism (Divided Powers) - An Anachronism? Most Assuredly

As we enter the new century, politicians in both Houses of Congress, on both sides of the aisle, continue to propose sweeping federal legislation, deriding Federalism as an anachronism. They declare attempts to maintain state sovereignty as a return to "antebellum" values.

Such interesting words but they misrepresent the argument. Anachronism means “from another time,” and antebellum is defined as “from before the civil war.” Certainly state sovereignty qualifies on both definitions, as do the Bill of Rights, separation of powers and many amendments to the Constitution.

Should we reject the Bill of Rights because it is an “anachronism?” It certainly qualifies, by definition. Should we scrap the concept of separation of powers between the three branches of government? It, too, predates the civil war. Are they unsuited for our cosmopolitan culture? Federalism, the division of powers between the federal and state governments, is one of a half dozen specific and fundamental protections specified in the Constitution.

Federalism Is Uniquely Suited to a Mobile and Sophisticated Populace

Federalism is still valid in our complex world. Federal, one-size-fits-all, programs continue to disappoint. They continue to bind citizens and state governments with overlapping and contradictory laws, while failing to provide promised improvements. They continue to consolidate and concentrate power.

Federalism is not outdated and takes on increased importance since the passage of the 17th Amendment. More than any time in history we need divided powers as a foil and a protection against federal encroachment. As federal autocracy grows we need a division of powers, more not less.

Federalism is a Constitutional issue, true enough. But it is also practical. It is uniquely suited to a country of highly mobile and sophisticated citizens. The benefits of jurisdictional competition are visible everywhere, at a practical level in today’s highly developed culture, as much as when Jefferson and Madison championed state sovereignty over two hundred years ago.

Indeed, increased economic complexity makes it crucial to preserve the division of power - to carve the vast federal bureaucracy into smaller, more manageable and competing jurisdictions. State sovereignty induces state governments to provide its citizenry with choice. Government improves when citizens can compare and improve government services, like local tax rates, educational opportunities and police protection. By any legitimate analysis state sovereignty benefits the American way of life and preserves liberty.

Is Federalism a Lost Cause or Can We Effect Its Return?

Governors and state legislatures represent the first line of defense as we fight to keep the division of state and federal powers viable in the 21st century. When states draw a line in the sand, all branches of government take notice. And we are seeing more success in this regard.

Still, the heart of federal expansion is Congress. As more federal programs fail to bring the desired results, voters are beginning to demand representatives who understand the underlying principle of Federalism - representatives committed to reduce federal intrusion. We are already seeing this happen in Congressional Districts across the nation.

We need representatives in Congress who believe that robust Federalism provides not only a buffer from federal abuse of power, but also a healthy marketplace for workable solutions.

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