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On April 20, 2005, The New York Times reported:
“In a stinging rebuke of President Bush’s signature education law, the Republican-dominated Utah Legislature on Tuesday passed a bill that orders state officials to ignore provisions of the federal law that conflict with Utah’s education goals or that require state financing.
“The bill is the most explicit legislative challenge to the federal law by a state, and its passage marked the collapse of a 15-month lobbying effort against it by the Bush administration.
“Federal officials fear Utah’s action could embolden other states to resist what many states consider intrusive or unfunded provisions of the federal law, known as No Child Left Behind.
“Utah’s action comes as a federal-state conflict over the education law appears to be escalating. The attorney general of Connecticut has announced that he will sue the Department of Education over the law’s finances, Texas is in open defiance of a federal ruling on testing disabled children and many state legislatures have protested various provisions of the federal law, which has required a sweeping expansion of standardized testing.”
Other states considering joining the protest are: Colorado, Idaho, Minnesota, Nebraska, North Dakota, Vermont and Virginia.
Some states are protesting based on an education law passed during the Clinton administration which prohibits federal officials from requiring states to spend their own money to enact the policies outlined in federal law. A few organizations base their objections on the fact that the federal government has no Constitutional authority to involve itself in education.
For whatever reason, there is a growing rebellion among states concerning the monstrous No Child Left Behind federal power grab and the Bush administration has been trying for months to head it off because it is mostly coming from people and states that have supported President Bush.
President Bush, in defending the NCLB requirements at his recent press conference, said that if the federal government is going to give schools money, it should have the right to expect accountability and progress, measured by stiff testing requirements.
Of course, it is a correct principle of government that the expectation of accountability must flow from the source of the money. The Founders would surely agree with that. But they would be quick to add that the premise of this thinking is faulty; that the federal government should not be giving money to schools in the first place. They would say the Constitution gives no authority to the federal government to meddle with the whole area of education in the first place and that the federal government has no authority to collect or spend money for the purpose of public education. That authority, responsibility, and accountability is not federal, it is local and state only.
The Founders felt so strongly about keeping the federal government within its proper bounds that they very carefully assigned only a few and carefully defined powers to it and structured the Constitution with built-in safeguards for the other levels of government, in case there was any attempt to intrude. This is the basis of federalism. What went wrong?
Andrew M. Allison wrote a classic paper entitled “Federalism and the 17th Amendment” which should not be lost in the archives. We present parts of it again this month as the Founders’ answer to the current education dilemma of 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
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.
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
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 [such as No child Left Behind], 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:
Many of the states have lobbied Congress to reduce the burden of “unfunded mandates” imposed by the central government, and on March 22, 1995, President Clinton signed a new law imposing certain restrictions on such mandates. But these restrictions don’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.
The 17th Amendment was a grievous mistake. Isn’t it time to make the states part of our federal government again? By repealing the 17th Amendment, the states would resume their rightful place in the Senate, and 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.