The Decline of Federalism, Part II

(If you missed the first part of this series, check it out here)

Over the next thirty years, the United States became embroiled in the slavery debate. The balance of free and slave states tenuously ebbed and flowed until the Supreme Court’s infamous Dred Scott decision. In Chief Justice Taney’s final verdict, slaves were branded as “property,” and Southerners’ defense of slavery as a matter of states’ rights was upheld. This pairing of two different issues in one unfortunate decision made state sovereignty, that vital half of federalism, appear specious, if not downright evil. Several years later, when the South resorted to the hotly debated right of secession, Abraham Lincoln built on Jackson’s precedent and called forth Federal troops to reduce the South to submission.

Even the most just wars end in diminished liberty, and the Civil War was no exception. The victorious Union overreacted to the problem the states had posed in their appeal to a supposed “right” to own slaves by stripping them of their rights altogether. The Fourteenth Amendment expanded the Bill of Rights to restrict states and placed liberties that had been sacrosanct to those states and their citizens perilously under Washington’s control. A wave of nationalism obliterated what loyalty remained to the state governments. Secession was branded with eternal infamy. “What was once a legitimate argument and rallying cry [came] to symbolize…the terrible injustice of a slave-based society.”

As Calhoun had observed thirty years earlier, “…it is not possible to distinguish, practically, between a government having all power, and one having the power to take what powers it pleases.” With the states robbed of any effectual means of checking Federal power, federalism was dealt a mortal wound. As if on cue, Washington’s powers began to explode. Woodrow Wilson’s administration first passed the 16th Amendment. This legalized the income tax and ensured that the Federal government had a vast financial advantage over the states. “By employing its ability to make grants to the states to…implement national programs, Congress has…[transformed] the states…into administrative arms of the national government.” The 17th Amendment followed, making senators directly elected and divorcing them from their position as the states’ agents. The states were now without a voice in the government they had created.

Most foreboding of all was the Supreme Court’s new interpretation of the Constitution as a living document. This had its genesis in the relativistic view that, in Wilson’s words, “[Government] falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin.”

A Supreme Court armed with the ability to redefine the Constitution undermines the very idea of a written constitution and imperils our rights. It has proved especially deleterious to what traces of federalism remain to slow things down. In the 1930s, the Court coupled this judicial activism with support for the New Deal’s engorgement of Federal power. In 1941’s U.S. v. Darby Lumber, the Court held that the Tenth Amendment’s reservation of power to the states and people was only a truism; in Wickard v. Fillburn, the wheat a farmer grew for his own chickens was declared to be under the jurisdiction of the Constitution’s Commerce Clause.

In retrospect, Jefferson’s and Madison’s warnings were remarkably farsighted. Without true, state-centered federalism, the Supreme Court has indeed become a mere rubber stamp for Washington’s agenda. The Court’s endorsement of the New Deal led to its endorsement of the welfare agenda of Lyndon Johnson’s “Great Society” and the surge of Federal power it required. Moreover, the Court’s expansive view of the Bill of Rights as a limit not just on Congress, but on the states, has led it to conjure de facto “rights.” 1965’s Griswold v. Connecticut saw justices discover an individual “right” to contraception that overrode Connecticut law. Americans were granted the “right” to murder an unborn child eight years later in Roe v. Wade, even though most states had outlawed abortion. One wonders what other “rights” might be contrived by our government next - the “right” to gay marriage?

In 2001, George W. Bush’s “No Child Left Behind” initiative seized more control of education from the states and gave it to a Washington bureaucracy. Federal education spending has tripled, but grades have continued to decline. During the BP oil spill, FEMA regulations prevented states’ timely response to the disaster. Arizona’s controversial immigration law was a desperate answer to Washington’s inability to enforce the powers it has assumed. After more than a century of living outside federalism’s constraints, our government is finally facing its overextension. Our fiscal crisis is fundamentally caused by the consolidation of a massive array of powers that were designed to be dispersed to the states and people in true federalist fashion.

The answer to the fiscal crisis, abortion, gay marriage, government corruption, an out of touch administration, and citizens’ apathy, is to revive federalism and restore to the states the decision-making power they were intended to wield. “Federalism was all about keeping government within reach of the individual. It was…about keeping government in its place…and maintenance of…democratic sentiment. As federalism has diminished as a constitutional…and political principle, much of what makes this nation what it has been is put at risk…. Our ability to restore the primacy of federalism in America may well shape what this nation is to become.”