Saturday, January 29, 2011

Federalism And Why It Matters To You

I've been reading a lot of American history this last year. The Federalist Papers are most revealing, along with other writings of our founders. The term "federalism" is one of those slippery terms bandied about in political rhetoric today needing a clear definition if we are to understand why it is relevant today.

Washington at Valley Forge
For forty-five years George Washington gave himself to his country. No one deserves the title "Father of Our Country," more than he. There was an overriding concern, however, that he was still fighting until the day he left office.

Throughout his presidency he was grieved by all the wrangling between the two predominant parties of his day -- the Federalists and the Republicans. He was usually successful in standing above the fray and warned against the divisions infused by the parties into the American fabric at the time, fearing dissolution of the union he had forged so diligently. Here's a sample of his effort to warn his countrymen "in the most solemn manner against the baneful effects of the spirit of party. . . The spirit unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. . .

"The alternate domination of one faction over another sharpened by the spirit of revenge natural to party dissension. . . is itself a frightful despotism. . . A fire not to be quenched, it demands a uniform vigilance to prevent its bursting into a flame, lest, instead of warming, it should consume."

We are close to that place, it would seem, where Washington's warning is near fulfillment. He suggested the antidote was morality in government. From his farewell address, we are advised:

"Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness - these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked, Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle."

One searches in vain today for such wisdom. His farewell address was not given as a speech at all. It was drafted first, then sent to his friends, Alexander Hamilton and James Madison, for polishing. It was dated September 17, 1796, and subsequently printed two days later in Philadelphia's American Daily Advertiser. He offered it he said, as the parting counsel from "an old and affectionate friend."

Thomas Jefferson
As the new nation under Washington took shape two polarizing points of view emerged. Thomas Jefferson's followers called themselves Republicans. They stood for a true republic of the people. Alexander Hamilton disciples called themselves Federalists, seeking to strengthen the federal Union. Those two simple ideas are the origins of our how the country became divided into two predominant points of view on the role of the federal government. Hamilton deeply believed only a strong national government could rule effectively, and was advocating the idea the common man was incapable of self-rule. Jefferson was a strong proponent of states' rights, while Hamilton was seeking an ever-stronger central government.

Alexander Hamilton
 Before their lives were over, Jefferson and Hamilton became bitter enemies. Each accused the other of trying to destroy the country. The central idea dividing them? Hamilton had some "radical ideas" about fiscal policies. Jefferson saw the establishment of a national bank as simply a way to enrich the few money men behind it, and everything else Hamilton proposed was viewed with the same skepticism by Jefferson, who saw Hamilton's financial practices as harmful to the poor and destructive to the nation's long-term well-being.

Hamilton countered that his policies were essential to a strong national economy. He did not deny a few would be enriched, but saw that outcome as the necessary step to a thriving economy where everyone could become wealthier.

The differences ran deep, and beyond policy they became implacable personal enemies even though Washington repeatedly tried to reconcile them to each other without success. Jefferson finally resigned as Secretary of State at the end of 1793, and a year later Hamilton quit as Secretary of the Treasury.

The core issues separating these two powerful individuals then persist today. The Constitution was established to create two tiers of governing -- one at the federal level, the other at the state level. This was called "federalism," a shared role for each.

Federalism in the United States is still evolving. It attempts to define the proper relationship between state governments and the federal government. American government has evolved from a system of dual federalism to one of associative federalism. In "Federalist No. 46," James Madison asserted that the states and national government "are in fact but different agents and trustees of the people, constituted with different powers." Alexander Hamilton, writing in "Federalist No. 28," suggested that both levels of government would exercise authority to the citizens' benefit: "If their [the peoples'] rights are invaded by either, they can make use of the other as the instrument of redress."

The states established the first level of governance to be formed in this country. Their pre-eminent existence, some would argue today, give them "more rights" than the specific and limited "enumerated powers" spelled out in the Constitution. These include the right to levy taxes, declare war, and regulate interstate and foreign commerce. Also, the "Necessary and Proper Clause" gives the federal government the "implied power" to pass any law "necessary and proper" for the execution of its express powers.

These arguments are the very arguments one hears today in the ongoing attempts to reform health care and other transformative issues. The core issue is shall the states or the federal government be the instrument to decide for the people? Jefferson would have argued for the states and Hamilton would have sided with the federal government.

Powers that the Constitution does not delegate to the federal government or forbid to the states, the "reserved powers," are reserved to the people or the states under the Constitution. Jefferson said, "That government that governs best is closest to the people." Over time, however, the power delegated to the federal government was significantly expanded by the Supreme Court decision in McCulloch v. Maryland (1819), subsequent amendments to the Constitution following the Civil War, and by some later amendments. The overall claim of the Civil War, that the states were legally subject to the final dictates of the federal government, had the effect of deferring to a strong federal government in the evolution of federalism and how it is defined today.

The old Hamiltonian Federalist party in the United States was finally dissolved in 1824. They were heavily opposed by the Democratic-Republicans, which included powerful figures such as Thomas Jefferson. The Democratic-Republicans mainly believed:
  • The Legislative had too much power (mainly because of the Necessary and Proper Clause) and that they were unchecked.
  • The Executive branch had too much power, and that there was no check on him. A dictator would arise.
  • A bill of rights for the people should be coupled with the Constitution to prevent a dictator from exploiting citizens. The threat then, as always, is that the Executive could become a dictator.
The Federalists, on the other hand, argued it was impossible to list all the rights, and those that were not listed could be easily overlooked because they were not in the official bill of rights. Rather, rights in specific cases were to be decided by the judicial system of courts.

A larger role and influence for the federal government, however, continued to emerge decades after the Civil War. The reasons included the need to regulate businesses and industries that span state borders, attempts to secure civil rights, and the provision of social services. The federal government acquired no substantial new powers until the acceptance by the Supreme Court of the Sherman Anti-Trust Act in State of Minnesota v. Northern Securities Company.

It is the belief of many today (myself included) that the federal government has grown beyond the bounds permitted by the express and limited powers granted in the Constitution. Opponents to that view think they find some legal latitude among the express powers, such as the Commerce Clause. The Commerce Clause is used by Congress to justify certain federal laws, but its applicability has been narrowing in recent years by Supreme Court rulings.

"Dual federalism" suggests the federal government and the state governments are co-equals, each sovereign. In this theory, parts of the Constitution are interpreted narrowly, such as the Tenth Amendment, the Supremacy Clause, the Necessary and Proper Clause, and the Commerce Clause. Under a narrow interpretation, the federal government has jurisdiction only if the Constitution clearly grants it. In this case, there is a large group of powers belonging to the states or the people, and the federal government is limited to only those powers explicitly listed in the Constitution.

To summarize:

We face "ominous challenges" as a nation today. 
Here's a BYU professor who suggests there are at least five requiring immediate attention by the 112th Congress. There was little in Obama's SOTU address last week to suggest he will take a leadership role in tackling those clear and present dangers lurking on the horizon. He played a large role in creating those challenges with the 111th Congress. It appears, instead, he will play politics as usual, hoping the Republicans by reducing spending make life so miserable for Americans he can ride a wave of displeasure into a second term in 2012, and last long enough without specifically addressing the issues that he might still be popular enough with the people by then to be re-elected. His re-election campaign is launching into high gear now and he'll be on the stump between now and then doing what he does best -- talking and talking and talking and talking.

The arguments debating the meaning of "federalism" today are framed around the concept of "dual federalism," the shared powers and the evolving roles of the federal government and the states. It is my belief it is absolutely essential for Americans to become engaged in the debate using the proper definitions and advocating for states' rights as opposed to further expansion of the role of the federal government. The only question remaining is whether it is too late to finally rein it in. It seems both political parties have expanded federal government, now the question is which one will shrink it, if it can really be "shrunk" at all.

Last week in his press conference following his State of the State address, Governor Gary Herbert here in Utah was mystified by the unilateral imposition of Obamacare upon the states without even so much as a consult with the governors of the various states over the last two years when it was rammed down their throats, and he signaled his adamant opposition to the taking of any more Utah land for federal wilderness and monument designations. The states are on the move to reassert their claims against the monolithic federalism they see as a threat to our existence.

Half the fifty states' attorneys general are now involved in lawsuits to challenge the constitutionality of Obamacare, and the border states of Arizona and Texas are imposing their wills against the federal government's inaction to control the borders.

Henry David Thoreau asserted, though it is often attributed to either Thomas Paine or Thomas Jefferson, "That government is best that governs least."

The polar opposite positions held by Hamilton and Jefferson have played out two hundred plus years later exactly as Hamilton and Jefferson framed the original debate then, and the question is still not settled -- far from it.

A return to Washington's thoughts from his farewell address is sagacious wisdom for America today: "Reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle."

Beware of those who would take God out of this equation.

1 comment: