Saturday, October 16, 2010

Habitual line-steppers ...

"I play not marches for accepted victors only, I play marches for conquer'd and slain persons. Have you heard that it was good to gain the day? I also say it is good to fall, battles are lost in the same spirit in which they are won."

-- Walt Whitman

The United States is one of a select few nations in the world using a government where power is divided between a central national government and state governments.  The idea behind dividing up the powers was to prevent an overly powerful national government (similar to what they'd just escaped in Great Britain).

After gaining independence, the States attempted a government via a confederation, which placed most power with states and vastly limited the capabilities of the national government.  This experiment in government ended when the original 13 realized they were too weak to survive on their own.

Thus, when the U.S. Constitution was written, it was done so in a way to alleviate the fears of decentralists while giving the federal government strength needed to effectively hold together the nation.  Article I, Section 8 of the U.S. Constitution specifically spells out the powers of the national government, while the 10th Amendment makes it clear that any powers not given to the national government are reserved for the states.

This was how the nation was supposed to function -- in what political scientists call dual federalism.  This type of government had the states and national government acting only within the scope of their powers, and not attempting to infringe upon the powers of the other. 

Sadly, dual federalism didn't last too long into our nation's history.  Since the 1820s, the federal government has been creeping into state territory, creating a slew of laws that go beyond their constitutionally expressed powers.

How has our federal government done this?  Through a Zelda-like triforce of powers in the Constitution.  Three measures have worked to the disadvantage of the states -- the Supremacy Clause, the "elastic" clause, and the commerce clause. 

Article VI of the Constitution lists it and all laws made pursuant as the "supreme law of the land."  This clause enables the national government to pull rank on any conflicting laws between themselves and states (see:  McCulloch v. Maryland and Gibbons v. Ogden). 

The "elastic" clause is the last power mentioned in Article I, Section 8 and allows the feds to make all laws they deem to be "necessary and proper."  Of course, states have no say-so in what exactly is necessary and proper.

Finally, the most dangerous power the national government has in its arsenal -- the power to regulate interstate commerce.  Doesn't sound very menacing, does it?  Think about it though, if any activity involves "interstate commerce," the federal government can regulate or make laws about that activity.  The real question to ask is, what doesn't involve interstate commerce?  The situation seems the federal government has been given carte blanche to do whatever they see fit.

What means or recourse do the individual states have against such tyranny?  Well, they have the 10th Amendment.  And they scream loudly about it ... and that's about it.  The states have little recourse in going about correcting these problems.  The remedies available to them are so extraordinarily difficult to enact, that they might as well be helpless.  The only effective means of change that a state government could use is through a seldomly talked about method of amending the Constitution, whereby 2/3 of states could call for a special convention to propose amendments, which would then require 3/4 of the states to ratify any proposals.  Seeing as how the Constitution has only been amended 27 times (with 10 coming almost immediately), the states are facing an uphill battle.  It is also worth noting the method of amending described above has only been used once. 

States have also taken up their cause through the court system, looking for a restoration of the days of old.  Perhaps they neglected to realize the great arbiters of the land -- The United States Supreme Court -- is indeed part of the federal structure.  States usually find themselves on the wrong end of key court cases involving issues of fedrealism.  Moreover, the Court has been rather inconsistent in some of their decisions limiting the national government.

One other way of making changes is through voting out members of Congress who are not responsive to maintaining the balanced federalism the Framers intended.  Americans are making some noise throughout many states by upending long time incumbents and voting for candidates expressing their love for the 10th Amendment and their dislike for an overgrown federal government.  However, this current frustration with the federal government is fused with a poor economy and an overall low satisfaction with President Obama.  In 2008, I didn't hear anyone clamoring for states' rights, and if they did, no one seemed to care. 

In Federalist Paper #17, Alexander Hamilton argued states have a great advantage over the national government in the sense that people will more likely be loyal to their state and local entities because of their natural "closeness," but that hasn't been the case in our history.  How many people can even name their state legislators for their district?  Most people choose only to vote in federal elections.   

This particular piece also asserted the national government would not likely encroch on state powers becaues it already had all the powers worth having in the first place.  Apparently not because the feds have done a great job at extensively overstepping their boundaries. 

The plight of states probably isn't helped any by the proverbial black eye handed down be states' rights activists over the years.  Jefferson and Madison's Virginia and Kentucky Resolutions arguing nullification?  Bad call.  John Calhoun's attempted defiance of the "Tariff of Abominations?"  Shot down as treasonous by Old Hickory.  Southern states attempting an armed rebellion?  Sherman and Grant scorched everything in sight.  But let us not forget the coup de gras, George Wallace's attempt at exerting state authority in matters of race at the University of Alabama. 

But those egregious errors by the states pale in comparison to the sins of the federal government.  Let us take a look at just a few:

The federal government is responsible for the No Child Left Behind Act, a mandate to the states requiring a number of changes to the educational standards of all states.  Not only does education not appear in the Constitution, but it has been widely accepted that education is a power reserved for states.  The children of West Virginia are best understood by those in this state, not in Washington, D.C.  One of the benefits of federalism is the ability of states to decide a great number of issues that would naturally differ from state to state.

The landmark legislation passed earlier this year with respect to health care reform, known more colloquially as "ObamaCare."  Regardless of your stance on health care reform, it falls under a category of "not in the Constitution."  Why not let states decide this issue? 

The ratification of both the 16th and 17th Amendments also greatly harmed states, allowing for a direct income tax on citizens and direct election of U.S. Senators.  Income taxes were previously forbidden to the federal government and access to a man's paycheck greatly expands federal power because it greatly expands their pocketbook.  The 17th Amendment took power away from state legislatures -- it removed their ability to select U.S. Senators and placed that in the hands of the citizens.

Even when states are allowed to implement their own standards, they have been coerced by the federal government.  For instance, in the early 1980s, states were threatened with the loss of highway funding from the national government if they did not change their legal drinking age to 21.  States have become so dependent on grant money, not complying with federal "requests" can have disastrous consequences.

States were dealt another blow today when Attorney General Eric Holder announced the federal government would still actively pursue and prosecute marijuana users in California even if the state voted to legalize it on November 2nd.  I am not advocating drug use by any stretch of the imagination, but shouldn't this be a subject left to states?  Voters of California will have the choice to legalize the drug for recreational use, but in all likelihood their vote could be nullified by federal action.  I'm not sure this is what the Founding Fathers envisioned.

The time has passed for the national government to surrender some of the authoirity it has unlawfully usurped.  How will states accomplish this?  I'm not entirely sure, but the states need to continue the good fight.  In the words of Chief Justice John Marshall, this issue “will probably continue to arise, as long as our system shall exist.” 

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