States Demand Return to Federalism

An emerging “federalist revolution,” is beginning to unfold. Some of the states have launched a bold campaign to reclaim their rightful place in the American political system. This movement could well become one of the most significant developments in modern history, but in order to bear good fruit, it must be rooted in the inspired constitutional formula that made America “the land of the free.”

Since the only way to restore American federalism is to reinstate the principles on which it was built, this month we’re going to focus on the founding fathers’ original design for federal-state relations. And on the basis of that design, we’ll suggest a strategy that can help unite and empower the states as they work to reestablish their proper role in our nation’s government.

How Is Power Divided Between Washington , D.C. , and the States?

Federalism is the constitutional division of powers between the national and state governments. To function correctly, this kind of political system requires at least two things: a binding agreement that specifies the distribution of powers between the central government and the states, and effective controls for enforcing and maintaining that agreement. To provide these two elements is the main object of the U.S. Constitution. Since both are vital in the current struggle to repair our federal system, let’s examine each of them from the founders’ viewpoint.

The framers of our Constitution wanted a strong national government, but they also wanted it to be strictly limited to the functions authorized in the Constitution. Most of these are found in Article I, section 8, which outlines the “enumerated powers” delegated to Congress. And not only does the Constitution specify the powers granted to the central government; it actually prohibits that government from exercising any powers not delegated to it. The 10th Amendment expressly declares that these are “reserved to the states respectively, or to the people.”

Thomas Jefferson summarized the basic design of the system: “The people, to whom all authority belongs, have divided the powers of government into two distinct departments [i.e., the national and state governments], the leading [characteristics] of which are foreign and domestic…These they have made coordinate, checking and balancing each other, each equally supreme as to the powers delegated to itself.” 1

The founders felt so strongly about this division of powers that they regarded the 10th Amendment as “the foundation of the Constitution.” 2  Jefferson insisted that “to take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition.” 3

What Are the Safeguards, and Why Haven’t They Worked?

To help enforce and maintain this system of balanced federalism, the Constitution provides both external and internal controls on government. Perhaps the best example of an external control is the people’s right to cast their votes in frequent public elections. Yet this alone is not a sufficient protection, because elected officials sometimes “change their tune” after assuming office. All too often, a candidate who wins a national election by claiming to support constitutional principles catches “Potomac fever” upon arriving in Washington and quickly becomes part of the problem rather than part of the solution.

Among the internal controls established by the founders are (1) the oath of office, which requires all federal and state officials to pledge their support for the U.S. Constitution; (2) the separation of powers, which divides authority among the legislative, executive, and judicial branches to prevent any one branch or individual from becoming too powerful; and (3) a series of checks and balances that enable the three branches of government to keep each other within their proper bounds.

Unfortunately, these internal devices for maintaining our federal system are now largely ignored. For instance, although the president and the Supreme Court both have authority to resist unconstitutional laws enacted by Congress, they seldom do so. In fact, the Court has actually ruled that “Congress is not limited by the direct grants of legislative power found in the Constitution.” 4  Over the last several decades, such neglect of constitutional restraints has allowed Washington to become increasingly abusive toward the states and the citizens of this country.

How We Abandoned Federalism in 1913

Many Americans today are unaware that the Constitution provided another “internal control” on the government that was more powerful than all the others combined: the original design of the U.S. Senate.

For more than a century, senators were elected by state legislators rather than by popular vote. 5  The founders said they had organized Congress in such a way that “the people will be represented in one house, the state legislatures in the other.” 6  Thus the states were an integral part of the federal government and had a strong voice in the formation of federal policy. As James Madison put it, “No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then of a majority of the states.” 7

According to George Mason of Virginia , the object of this design was to arm the state legislatures with “some means of defending themselves against encroachments of the national government…And what better means can we provide than [to give] them some share in, or rather to make them a constituent part of, the national establishment?” 8

Madison explained that the House of Representatives was always regarded as a “national” institution because its members were elected directly by the people, but “the Senate, on the other hand, will derive its powers from the states.[and in this respect] the government is federal, not national.” 9  In other words, the government in Washington is a “federal” government only if it incorporates the states into its very structure.

The founders even cautioned us about the dangers of altering this arrangement. For example, Fisher Ames of Massachusetts declared in 1788: “The state governments are essential parts of the system.The senators represent the sovereignty of the states…they are in the quality of ambassadors of the states…[But suppose] that they [were] to be chosen by the people at large…Whom, in that case, would they represent? Not the legislatures of the states, but the people. This would totally obliterate the federal features of the Constitution. What would become of the state governments, and on whom would devolve the duty of defending them against the encroachments of the federal government?” 10

But in 1913 we rejected this counsel and adopted the 17th Amendment. Since that time, senators have been elected by popular vote-and the states have had no official representation in Washington . The results have been so disastrous that, from the sobering perspective of our day, Jefferson’s warning of 1821 seems almost prophetic: “When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated.” 11

Let’s Give the U.S. Senate Back to the States!

As we noted earlier, the only way to restore American federalism is to reinstate the principles on which it was built. If we want a genuine federal government again, with the balance and controls originally provided by our Constitution, we must repeal the 17th Amendment.

The United States is a republic, not a democracy; we don’t need a second House of Representatives. Since all national legislation must be passed by both houses of Congress, why not give the Senate back to the states? As full participants in the legislative process, they could effectively block any laws, taxes, or appropriations which they considered to be unconstitutional or otherwise harmful to the states or the people.

Repealing the 17th Amendment is the safest, most effective, and most permanent solution to the current predicament in our federal system. Consider the strategies that the states are now using:

Over the years many states have lobbied Congress to reduce the burden of “unfunded mandates” imposed by the central government. Under President Clinton a law imposing certain restrictions on such mandates was passed, but these restrictions didn’t go far enough, and they can be eliminated at any time by a simple majority vote in Congress. Even worse, the new legislation does nothing at all about Washington ‘s unlawful seizure of the decision-making powers reserved to the states. A few states have filed lawsuits against the national government for specific violations of the Constitution. The problem with this approach is that the outcome is in the hands of the federal courts. And as James Madison observed, the legislative and executive branches of government are not the only potential threats to our liberty: “The judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution.” 12

In an attempt to “reassert their rights” under the 10th Amendment, several state legislatures have passed resolutions declaring state sovereignty and demanding that Washington stop usurping their authority. Such resolutions are philosophically correct, but they provide no enforcement mechanism to restrain the central government. Some have suggested that the states could add “teeth” to their declarations by impounding federal taxes or by voluntarily returning federal funds issued for unconstitutional programs. However, these suggestions seem to overlook a harsh reality: the states have become so dependent on federal dollars that they are now subservient to Washington -and until that relationship changes, they are not likely to take decisive action.

Some states have revived the idea of participating in a proposed “Conference of the States”. But while the 10th Amendment movement doesn’t go far enough, some fear that this proposal runs the risk of going too far. Conference organizers, who believe that “fundamental, long-term, structural change” is needed to revive federalism, have discussed several constitutional amendments that could be recommended to Congress and the states.13 NCCS shares the concerns expressed by others regarding some of these amendments, but we’re in agreement on the need for structural change-because that’s the only way to reverse the radical power shift that undermined our federal system in 1913. And as we contemplate what kind of change would be in the best interests of our nation, we come to this question: Who’s going to devise a better solution than the inspired model established by our founding fathers?

The 17th Amendment was a grievous mistake. Isn’t it time to make the states part of our federal government again? By resuming their rightful place in the Senate, the states can become partners in developing national policy-rather than underlings who must humbly petition Washington for favors, or adversaries whose only means of self-defense is a constitutional crisis.

In today’s political climate, repealing the 17th Amendment may appear to be an impossible feat. But if our citizens and leaders are educated in the American “freedom formula,” it can be done. In fact, there’s never been a more opportune time for such a campaign. In 1913, public confidence in the state legislatures was at its lowest ebb; but now the states are widely regarded, even by many in Washington , as far more competent and trustworthy than our national government. The opponents of federalism will try to sow confusion and alarm about the “loss of democratic institutions,” but those who understand the founders’ teachings will not be deceived.

Sincerely,

Earl Taylor, Jr.

References

1. To Judge Spencer Roane, 27 June 1821; in The Writings of Thomas Jefferson, ed. Albert Ellery Bergh, 20 vols. (Washington: Thomas Jefferson Memorial Association, 1907), 15:328; emphasis in original.
2. To President George Washington, opinion against the constitutionality of a national bank, 15 February 1791; in Writings of Thomas Jefferson 3;146.
3. Ibid.
4. U.S. v. Butler, 297 U.S. 65, 66 (1936); emphasis added.
5. U.S. Constitution, Article I, section 3, paragraph 1.
6. James Iredell, remarks in the North Carolina ratifying convention, 25 July 1788; in Jonathan Elliot, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution, 2d ed. Rev., 5 vols. (Philadelphia: J. B. Lippincott, 1907), 4:38.
7. Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (1788; New York : Mentor Books, 1961), No. 62, p. 378.
8. Remarks in the Constitutional Convention, 7 June 1787; in Max Farrand, ed., The Records of the Federal Convention of 1787 , rev. ed., 4 vols. (New Haven, Conn.: Yale University Press, 1937), 1:155-56; emphasis added.
9. Federalist Papers , No. 39, p. 244; emphasis in original.
10. Remarks in the Massachusetts ratifying convention, 19 January 1788; in Elliot 2:46; emphasis added.
11. To C. Hammond, 18 July 1821; in Writings of Thomas Jefferson 15:332.
12. Report on the Virginia Resolutions, January 1800; in Elliot 4:549.

“Conference of the States: An Action Plan to Restore Balance in the Federal System” (concept paper adopted by the Council of State Governments, the National Governors’ Association, and the National Conference of State Legislatures, 20 December 1994), p. 4, 8-9.