Failure to preserve federalism has cost much liberty

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Harold Pease Ph.D.
Harold Pease, Ph.D.

The U.S. lives under two political systems: one centered on foreign affairs and the other primarily domestic. It’s called federalism, and the two systems share power. Neither is subservient or above the other, and each has separate duties. Like a good marriage or team.

Thomas Jefferson explained, “The states are not subordinate to the national government but rather the two are coordinate departments of one single and integral whole… The one is domestic the other the foreign branch of the same government.”

The Founders were aware of the nature of all governments to grow.

George Washington warned, “Government is like fire, a dangerous servant and a fearful master.”

To ensure the fire does not spread and burn down the home, one builds a fireplace to keep the fire contained. That fireplace is the Constitution, particularly Section 8, which lists all powers that are given to Congress. Everything Congress did was to be clearly linked to at least one of these enumerated grants of power. The states who created the federal government, retained unto themselves all other powers as per Amendments 9 and 10 of the Constitution.

The advantages of federalism are enormous. States become laboratories of experimentation. Californians remember numerous “brownouts” at the turn of the century because of California’s failed energy policies. Other states viewed this failure and were careful to avoid the same policies. States look to sister states for models and borrow from them in refining their own programs. These places of experimentation work to everyone’s advantage. What if we had federalized California’s failed energy policy? We would have had “brownouts” on a national scale.

Had our power-crazed federal government refrained from its natural inclination to take more power, health care reform could have gone through this experimental process designed by our Founding Fathers. We would have been able to identify the weaknesses or strengths while they were still geographically isolated. Only three states had tried it: Oregon, Massachusetts and Hawaii. It was clearly not enough to identify and avoid the “brownouts “in the area of health care. Instead, they took a half-baked idea and made it mandatory for all and called it “Obamacare.”

Since health care was, and is not yet, a listed authority of the federal government it necessitates an enlargement of the enumerated list through Article V, requiring ratification by “three-fourths of the several states.” Since more than 60% of the people did not want this, the Constitution would have protected us from what we know now was unsustainable.

To protect federalism, the Founders did two things. First, senators were to be selected by state legislatures so the U.S. Senate would be protective of state concerns. All law required the approval of the House of Representatives – the peoples’ representatives – and the Senate – the states’ representatives. That difference is why the nation has two branches of government to make law – two perspectives. The 17th Amendment, mandating that the people, rather than the state legislators, elect U.S. Senators, destroyed this protection. Senators are today simply glorified House members. State issues thereafter were left mostly unrepresented – thus unprotected – on the federal level.

Second, the structure of the U. S. Constitution listed and defined federal power Article I, Section 8, leaving all power not specifically listed with the states as per the 10th 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 progressive or socialist movement of the early 20th century wreaked havoc on federalism. The 16th Amendment, removing the previous constitutional taxing requirements based upon “apportionment among the several states” and “census or enumeration,” to simply incomes, which could be raised arbitrarily at will. This left the federal government with unlimited resources to spend and expand – feeding its natural tendency to grow.

It used this excess to bribe states, counties, and cities to perform functions not listed in the Constitution, like the 55-mph speed limit of the Ford and Carter administrations, which funding later could be denied if states refused to comply. Consequently, states became addicted to federal money making it near impossible for them to “just say no” to federal takeover in their domestic dominion. A third of their resources come from the federal government.

Federal courts have amplified federal law by a twisted interpretation of the poorly constructed Amendment 14, also to the detriment of federalism. Amendment 18, repealed by Amendment 21, openly invited the federal government to decide approved beverages for us and from there to approved drugs; all matters constitutionally left entirely to state jurisdiction.

Failure to preserve federalism has cost us much liberty, most notably limited government. Lawmakers totally ignore both the listed areas of government in Article I, Section 8 and Amendment 10. State legislators have no influence in the U.S. Senate, once designed to protect them. States are bribed into compliance and now are addicted to federal handouts. They have become mostly administrative agents of the federal government without immunity to federal intrusion nor will to use nullification to block unconstitutional law. And the people are excessively taxed.

The country does not need an Article V constitutional convention to restore federalism, just more lawmakers who understand the Constitution as written and will adhere to it, especially in the areas specified above. Now is the time to find and elevate them.

Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and to applying that knowledge to current events. He taught history and political science from this perspective for over 30 years at Taft College. To read more of his weekly articles, visit www.LibertyUnderFire.org.