“The States can best govern our home concerns, and the General Government our foreign ones. I wish, therefore…never to see all offices transferred to Washington, where, further withdrawn from the eyes of the people, they may be more secretly be bought and sold as at market.”
– Thomas Jefferson
Our nation has experienced a complicated and ever-evolving relationship between our central (federal) government and our state governments. There are three broad approaches to division of powers between state and national governments; Unitary, Confederal and Federal.
Unitary systems are governments whereby virtually all power is consolidated at the central or national level.
Confederal systems are at the opposite end of the spectrum – where virtually all decision-making power is pushed out to the state level. The national government’s primary purpose is to serve as the mechanism that keeps states loosely bound to each other. Said another way, under Confederal systems each state keeps its own sovereign rights – and can secede.
Federal systems lie somewhere in the middle – and cover a broad spectrum of definitions. Federalism divides powers between state and national governments. Each level of government is independent and each level has its own set of powers and responsibilities. In its truest form, Federalism divides powers between national government and states in such a way that both levels are lawfully regarded as having equal stature or parity. In practice, the national government often attempts to consolidate power and ends up being supreme to state governments.
The system chosen by our founding fathers was a Federal system – one that retained a large amount of power at the state level and away from the central government.
The Constitution gave certain powers to the central government under Article 1, Section 8 – these powers include the ability to raise taxes, borrow money, establish and mint currency, regulate commerce internationally and across state lines and to declare war. The overall scope of powers granted to the national government is fairly narrow and is specifically limited to those listed in Article 1, Section 8 – along with any powers “necessary and proper for carrying into Execution” the powers listed. Amendment X was adopted by the first Congress and further clarified the limited scope of the national government’s powers by stating “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.“
States retain all powers other than those specifically granted to the national government in Article 1, Section 8. This level of explicitness made it clear that our founding fathers intended for states to be the primary policy makers and to be responsible for the majority of domestic affairs – and for those affairs to be handled at the state level to more directly respond to each state’s citizens needs.
The Civil War and the resulting 14th Amendment clarified several key items of states’ rights as regards its citizens – specifically 3 clauses; privileges and immunities, due process and equal protection – that provided for the protection of all citizens basic rights.
Until roughly 1913 the United States operated under a system of federalism broadly known as Dual Federalism. This system effectively acknowledged a separation of powers between the national and state governments whereby the national government was primarily responsible for national defense and foreign policy and the states were responsible for the rest – these powers were distinct, separate and generally did not overlap.
1913 began the period know as Cooperative Federalism. This period represented an increased intermingling of state and national (federal) governmental powers – it was also characterized by a dramatic expansion of the federal government’s scope and function.
1913 brought about the ratification of the 17th Amendment that removed the states’ rights to elect senators through their legislatures. This landmark Amendment eviscerated states’ rights in a way no other Constitutional Amendment had – or has since (see: Repeal the 17th Amendment) by eliminating each state’s control over their senatorial representation – and over how their senators voted in Congress.
1933 brought us the start of Franklin Delano Roosevelt’s New Deal (actually two of them) – made possible in large part through the passage of the 17th Amendment. The New Deal put in place a large number of federal agencies and programs (Social Security, federal welfare, unemployment compensation, collective bargaining, price stabilization) – many of which are still with us today. This was an unprecedented consolidation of power by our federal government and dramatically expanded the federal government’s functions. It also saddled the nation with complex and costly social programs that we are still grappling with.
At this point a distinction is worth noting. Under Dual Federalism, states and the national government were each responsible for separate and defined aspects of national interest. Under Cooperative Federalism the responsibilities blurred. States and the federal government now worked together towards similar goals. The federal government utilized its financial resources to give money to states for (usually) mutually agreed upon goals. Notably, municipalities and local governments were generally not included in the process.
1961 began the period of Regulated Federalism. I would define this time as “a program too far”. During this period the federal government extended its reach into local and municipal arenas. Federal interaction became coercive and controlling – by utilizing threats of withholding financial resources and aid. States were given Categorical Grants where money may only be spent for narrowly defined purposes – purposes set forth by the federal government. No longer were states and the federal government working in parallel as they had in the Cooperative Federalism period – the federal government was now steering the entire ship.
1981 marked the beginning of the period of New Federalism – the slow return of powers to the states. This era was ushered in with election of President Reagan and his policy of smaller government (Nixon had attempted to do so but failed). The federal government still gave grants but states were given greater latitude in the manner in which the money was spent. The grants were less restrictive. Notably, the Supreme Court began to vote in favor of states’ rights consistently.
The Bush Administration marked a reversal in states’ rights post 9/11 with the ushering in of federal agencies, oversight and programs to combat terrorism. The Obama Administration continued this reversal through government intervention and intrusion utilizing dramatic increases in regulation and the issuance of literally hundreds of Executive Orders – notably bypassing Congress – and the Constitutional process. Obama’s approach has been referred to as Collaborative Federalism (generously so in my opinion) – whereby there was some level of cooperation between states and the federal government.
When we look at the evolution of Federalism from this broad perspective it becomes clear the ongoing erosion of states’ rights was the direct result of power consolidation by the national (federal) government – exactly as our founding fathers predicted. The roots of this erosion lie in the passage of the 17th Amendment which threw the doors to federal government intervention and control wide open. The federal government’s growth and reach has been exponential since this event.
The 17th Amendment created catastrophic repercussions for states’ rights and it has been “death by a thousand cuts” ever since.
And yet, we have only ourselves to blame. Federal government is simply trying to do what is in its nature. Federal government should not so much be blamed as it should be hindered. Weeds grow because that is what weeds do. It is up to you to pull them out by the roots to maintain control of your land.
We must continue to push back against the inexorable encroachment by national government. And the most direct way to accomplish that is to empower states’ rights.
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