Federalism and the 10th Amendment
Did you know that a revolution has erupted in the United States?
Not a military revolution, but a political revolution of truly historic proportions. I'm referring to the bold steps that many of the state governments are now taking to restore their rightful place in the American system of federalism.
What Is "Federalism," and How Is It Supposed to Work?
Widely regarded as one of America's most valuable contributions to political science, federalism is the constitutional division of powers between the national and state governments.
James Madison, "the father of the Constitution," explained it this way: "The powers delegated.to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, [such] as war, peace, negotiation, and foreign commerce..The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people."1 And Thomas Jefferson emphasized that the states are not "subordinate" to the national government, but rather the two are "coordinate departments of one simple and integral whole..The one is the domestic, the other the foreign branch of the same government."2
Since governments tend to overstep the bounds of their authority, the founders knew it would be difficult to maintain a balanced federalism. In fact, that was one of the central issues raised by the state ratifying conventions as they met to decide whether to approve the new Constitution. Responding to this concern, Alexander Hamilton expressed his hope that "the people.will always take care to preserve the constitutional equilibrium between the general and the state governments."3 He believed that "this balance between the national and state governments.forms a double security to the people. If one [government] encroaches on their rights, they will find a powerful protection in the other. Indeed, they will both be prevented from overpassing their constitutional limits by [the] certain rivalship which will ever subsist between them."4
However, the opponents of the Constitution strongly feared that the states would eventually become subservient to the central government. Madison acknowledged that this danger existed, but he predicted that the states would band together to combat it. "Plans of resistance would be concerted," he said. "One spirit would animate and conduct the whole. The same combinations.would result from an apprehension of.federal [domination] as was produced by the dread of a foreign yoke; and.the same appeal to a trial of force would be made in the one case as was made in the other."5
"The Sleeping Giant Has Reawakened"
As it turns out, James Madison was apparently right. The states have in fact started combining to oppose federal intrusions on their authority, and this growing movement is now becoming a focal point all over the country. Governor Pete Wilson of California recently asserted that "it's time to set the states free and to let the people reclaim control over their destiny..For years, congressional liberals have tried to impose their will on the nation..Well, they should study their early American history and remember what happened to the last imperial government that handed down edicts and ignored the will of the people. If Washington continues to treat the states like colonies, then it will seem that [the November 1994 elections were] just the Tea Party, and 1996 will be the real revolution."6
Governor Mike Leavitt of Utah, who currently serves as chairman of the Republican Governors Association and of the Western Governors Association, says: "The Founding Fathers clearly intended that states were to be equal with the federal government. But over the last 50 to 60 years, the federal government has assumed more and more of a dominant role. Instead of a peer-to-peer relationship, it is now a master-to-servant relationship."7 His conclusion: "If we are ever to reverse this trend of rampant centralization of authority at the national level, it will have to be governors and [state] legislators who do it..States, in a constitutional sense, are not to be trifled with. Collectively, states have the authority to fundamentally alter and improve the federal-state relationship."8
Television commentator and syndicated columnist George Will, noting that "the federal government is making a mockery of federalism," has reported the beginnings of "a broad insurrection of state and local officials" against Washington's heavy-handedness.9
And two scholars at the Heritage Foundation recently wrote: "Throughout much of American history, especially since the New Deal, the federal government increasingly has encroached upon the fiscal and constitutional prerogatives of state and local governments. Today, this imbalance has reached a crisis point, and the states are fighting back..The sleeping giant in American governance.has reawakened."10
What Are the States Doing to Reclaim Their Authority?
How are the state governments "fighting back"? Here are a few examples:
During its annual meeting last November in Williamsburg, Virginia, the Republican Governors Association adopted a "declaration of independence" for the states. Like the 1776 Declaration, it sets forth a long list of grievances against the central government. Maintaining that "our freedoms are no longer safe when they exist only at the sufferance of federal legislators, federal courts, and federal bureaucrats," the document vows that the states will actively resist federal encroachments.11
At least twelve states passed resolutions in 1994 calling on Congress to reduce or eliminate unfunded federal mandates. Others are lobbying Congress to enact mandate-relief legislation, and in some instances states are simply refusing to obey intrusive federal regulations regarding gun control, voter registration, abortion, and so forth. Kansas and South Dakota have even called for a constitutional convention to initiate an amendment to the Constitution prohibiting such mandates.12
The legislatures of eight states passed resolutions last year asserting state sovereignty and demanding that the national government stop violating the 10th Amendment to the U.S. Constitution (which provides that "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"). It's expected that similar resolutions will be considered by more than twenty states during their 1995 legislative sessions.13 Several states are establishing legal-defense funds and filing lawsuits against the federal government for specific violations of the 10th Amendment.14 In the view of economics professor and columnist Walter E. Williams: "The 10th Amendment movement may be America's last chance to peacefully get Congress to obey the Constitution. [National] politicians have seriously underestimated public anger and are blind to the rebellion spreading across the land."15
The effort that has gained the broadest support thus far is a proposed "Conference of the States," to be held in Philadelphia's Independence Hall this October. Its purpose is to develop political, legal, and constitutional strategies for restoring balance to our federal system. The Council of State Governments, the National Governors' Association, and the National Conference of State Legislatures have called on all fifty state governments to send bipartisan delegations to the meeting. It's anticipated that most or all of the states will take part in the conference; in fact, more than forty of them have already passed or are now considering resolutions authorizing participation. Utah's Governor Leavitt, who initiated the proposal, says this historic assembly will mark "the first time in almost 210 years that the states have formally convened themselves for the purpose of discussing our roles, our stewardships, and our relationship with the federal government."16
How Are the National Leaders Responding?
Reacting to the pressure of these developments, leaders of the new Congress have started paying more attention to the states.
For instance, Rep. Newt Gingrich (R-Ga.) spoke to the Republican Governors Association just after the November elections and predicted a "dramatic effort" in Congress to "decentralize government away from Washington back to the people of the United States."17 And Sen. Robert Dole (R-Kan.), upon becoming the Senate's new majority leader in January, declared that federalism means "power should be kept close to the people. It's the idea on which our nation was founded..Federalism has given way to paternalism with disastrous results. If I have one goal for the 104th Congress, it is this: that we will dust off the 10th Amendment and restore its rightful place in the Constitution."18
So far, however, there's been more talk than action. It's true that congressional leaders and President Clinton have met with the nation's governors to discuss ways of shifting more authority to the states to deal with crime, welfare reform, education, and other social issues. But the president insists that Washington must retain control of the funds and the "performance standards." (He told the governors on January 31: "Even though you'll have more flexibility to solve your problems, you must be held accountable for how you spend the federal money.")19It's also true that both the Senate and the House have passed bills imposing some restrictions on unfunded federal mandates. But these restrictions don't go nearly far enough-and they can be lifted from any bill by a simple majority vote in Congress.
Next Month: How the Founders Would Restore Federalism
In other words, a lot of work remains to be done before balance can be reestablished in federal-state relations. And it's going to take more than hard work: to be effective, the effort must also be based on a sound understanding of how the Constitution was originally designed to function.
It should be obvious that the only way to restore American federalism is to know and apply the principles on which it was built. Thus we each have an obligation to study these principles-as they were taught by the founders-and then to influence our elected representatives to abide by them. Otherwise, every attempt to get our constitutional system back on track will ultimately fail.
In our view, the "revolution" described in this newsletter has profound implications for the future of our country. We believe that a true restoration of federalism will require the efforts of many good people and organizations, and thus it's not our purpose to officially endorse any particular political strategy (including those we've described above). Our role as an educational foundation is to hold up the founding fathers' teachings as a working model that citizens, private groups, and public officials can use to steer America back to its inspired "success formula."
The current struggle to revive federalism goes to the very heart of our Constitution. The primary object of its framers was, not to decide specific public-policy questions, but rather to define the level at which such decisions would be made. Because of the importance of these things, we're going to devote our entire April newsletter to the founders' views on federal-state relations. In the process, we'll offer some suggestions that we hope will be useful to those who are fighting on the "front lines" to reestablish the states' proper role in American government.
Andrew M. Allison
- Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (1788; New York: Mentor Books, 1961), No. 45, p. 292-93.
- Letter to Major John Cartwright, 5 June 1824; in The Writings of Thomas Jefferson , ed. Albert Ellery Bergh, 20 vols. (Washington: Thomas Jefferson Memorial Association, 1907), 16:47. See also ibid., 15:328; The Federalist Papers, No. 39, p.245.
- The Federalist Papers , No. 31, p. 197.
- Quoted in W. Cleon Skousen, The Five Thousand Year Leap: The 28 Great Ideas That Are Changing the World (Washington: National Center for Constitutional Studies, 1985), p. 225. See also The Federalist Papers, No. 28, p. 181; and No. 51, p. 320-23.
- The Federalist Papers , No. 46, p. 298. See also No. 26, p. 172; and No. 28, p. 181-82.
- "Ending the Mandate Madness: A Contract to Restore State Sovereignty," a speech delivered at the Heritage Foundation in Washington, D.C., 18 November 1994; The Heritage Lectures , No. 509 (Washington, 1994), p. 3, 5.
- Desert News , 19 May 1994, p. A3.
- Ibid., 3 November 1993.
- Ibid., 7 April 1994.
- Thomas Atwood and Chris West, "Home Rule: How States Are Fighting Unfunded Federal Mandates," State Backgrounder (Washington: Heritage Foundation, 28 December 1994), p. 1, 17; emphasis added.
- Deseret News , 24 November 1994.
- Atwood and West, "Home Rule," p. 6, 8-11, 15.
- Ibid., p. 6.
- Ibid., p. 3, 13.
- Deseret News , 22 December 1994.
- Ibid., 11 February 1995, p. B3.
- Ibid., 24 November 1994.
- Human Events , 13 January 1995, p. 1.
- Deseret News , 1 February 1995.