Understanding Federalism: A Key to Solving America’s Problems
The American system of government, as established by the Founders, was unique in all the world. Founder James Wilson expressed it this way:
“After a period of six thousand years has elapsed since the creation, the United States exhibit to the world the first instance, as far as we can learn, of a nation, unattacked by external force, unconvulsed by domestic insurrections, assembling voluntarily, deliberating fully, and deciding calmly, concerning that system of government under which they would wish that they and their posterity should live."
Wilson was referring to the federal system invented by the Founders. Federalism is defined as a system of government whose powers are distributed to different levels. The basis for the distribution was which level of government could exercise that particular power more efficiently and economically without violating the rights of the people. The different levels in the federal system are the national, state, county, town or city, and family or individual. Technically speaking, the term “federal government” refers to the entire system of properly assigned powers to all levels of government. As the powers of government have gradually concentrated in Washington D. C., the term “federal government” has come to mean that level associated with Washington, D. C. Thomas Jefferson and other Founders used the terms “national” or “general” when referring to the government of the nation, however, one still finds the term “federal” occasionally used in their writings referring to the national as a matter of convenience.
The Principles Underlying the Concept of Federalism
From the Principles of liberty established by the Founders, we find the following to be supportive of the concept of federalism:
- All men are created equal and are endowed by their Creator with certain unalienable rights. Just because men are chosen to serve in “higher” levels of government does not mean they can deny others of their unalienable, God-given rights. They are no more intelligent nor do they have more abilities than others at different levels of government or of the people themselves.
- A Constitution should be structured to permanently protect the people from the human frailties of their rulers. The weaknesses of human nature are present at all levels and the people need to be constantly alert to those officials who want to assume more and more power. As Jefferson said of Supreme Court justices, “Our judges [of the national government] are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps....”
- A system of checks and balances should be adopted to prevent the abuse of power. Strong provisions must be made in the federal system to prevent one level of government from assuming the duties and rights of the others.
- Only limited and carefully defined powers should be delegated to government, all others being retained in the people. All power to government comes from the people. There is no power in any level of government except what the people delegate to it. And the people cannot delegate a power they do not themselves possess. The Founders’ formula mandated that the farther the level of government was from the people, the fewer and more defined should be its powers. James Madison put 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.”
- Efficiency and dispatch require the government to operate according to the will of the majority, but Constitutional provisions must be made to protect the rights of the minority. The Founders believed that the body politic must move as dictated by the majority, not the minority, and that in a republic each member of society was bound to follow and obey the decisions of the majority. At the same time, they recognized the real possibility that even the majority could become tyrannical, so they dictated that Constitutional provisions on the national level be made to protect the rights of the people from a tyrannical national government and that constitutional provisions on the state and local levels be made to protect the people from tyrannical state and local governments.
- Strong, local self-government is the keystone to preserving human freedom. The Founders clearly said in the Tenth Amendment that the few and defined powers not delegated to the national government in the Constitution are reserved to the states and the people. Madison said: “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." In other words, the highest level of government which should touch the lives, liberties, and property of the people should be the state government. Actions which directly affect the lives, liberty, and property of the people are specifically declared as beyond the authority of the national government.
The National Bill of Rights and the States’ Declaration of Rights
The preamble to the Constitution’s Bill of Rights, which few Americans even know exists, declares the reason the Founders adopted the Bill of Rights. It reads:
"The Conventions of a number of states, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses be added; and as extending the ground of public confidence in the government, will best insure the beneficent ends of its institution, [be it] resolved...."
According to this then, each of the articles of the Bill of Rights applies only to the actions of the national government and not to the actions of state or local governments. For example, the Second Amendment could be read as follows: “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed by the national government.” All the other restrictions and prohibitions in the National Bill of Rights also only apply to the national government.
One might ask, “If the National Bill of Rights only applies to the national government, how, then, are the rights of the people protected from imprudent actions of state and local governments?” The Founders indicated that the states must also adopt a Declaration of Rights in their state constitutions in order to assure the people that states will not violate the people’s rights. Hence, as states have adopted constitutions, they have included a Declaration of Rights. Most of these are much more extensive and include many more rights than are listed in the National Bill of Rights. This whole concept is based on the principles, as outlined above, that people in the states are just as intelligent and just as capable in protecting their rights as those are on the national level, and as such, have every right to do so.
According to the Founders’ original formula, then, when a state or local government acts in an inappropriate manner which seems to violate the rights of the people, the remedy is not to look to Washington D. C. by claiming such local action violates the federal Constitution. Such action invites more national control over the lives of the people which, we have learned by sad experience, national officials are anxious to do. The correct action is to look to our own state constitutions and local municipal charters for the remedy. This is real local control which, as outlined in the principles above, best preserves human freedom. Once again, the purpose of the national Bill of Rights is to keep the national government out of these sensitive areas and leave it to state and local governments who can then best protect the people according to their changing needs and local situations.
While serving as governor of New York, it is apparent that even Franklin D. Roosevelt understood the founders’ original formula when he said:
“As a matter of fact and law, the governing rights of the states are all of those which have not been surrendered to the national government by the Constitution or its amendments…such as the conduct of public utilities, of banks, of insurance, of business, of agriculture, of education, of social welfare, and of a dozen other important features. In these, Washington must not be encouraged to interfere.”
“Looking to Washington” encouraged by a runaway federal judiciary
This beautiful and delicate distribution of power as developed by the Founders in order to insure strong, local self-government was severely damaged by the Supreme Court in 1925 by its decision in the Gitlow case and continuing in some subsequent cases. In these reinterpretations, the court reached clear back to the Fourteenth Amendment, passed in 1868, and gave a completely different spin to its original meaning. It said that the original prohibitions of the Bill of Rights, which were designed to restrict the national government’s actions, now apply to all levels of government. In other words, for example, instead of the First Amendment reading, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”, the court said it shall now mean, “Congress, the states, the counties, the cities, the school districts, etc., shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”
The practical effect of these actions has caused local jurisdiction to cease celebrating the Christmas holiday as the local people wish, or cease trying to prevent undesirable elements such as gambling, liquor, and porn shops from coming into their cities, because someone claims to have a “constitutional right” to do so and governments are prevented from stopping them by the First Amendment. This has transferred a huge workload of cases to the federal courts, which, under the Founders’ formula, would have remained in local jurisdictions.
Other areas which have been taken out of state and local control in whole or in part and thus severely damaged the whole idea of federalism are: religion, speech, press, marriage, education, welfare, labor, manufacturing, property rights, gun ownership, law enforcement, elections, land, abortion, and numerous other areas. These areas were left by the Founders strictly under state and local control. The Tenth Amendment was adopted with the simplest language possible to ensure this would be so.
What could the states and local governments do under true Federalism?
The answer is—about anything the people want to do. Remember, the states are the great crucibles in which experiments can be undertaken to see what laws best promote the happiness of people. Some states may adopt more restrictive measures while others do not, and then we will see what works and what doesn’t work. And because it is done on a state or local basis, it is much easier to change or even repeal. The key is to keep the national government from interfering in matters in which it has no Constitutional authority. This, of course, necessitates a continuing program of education among the people, so that national intrusions into state and local matters can be identified and stopped.
It may surprise some to learn that under true federalism, a state may adopt a state religion, unless its Declaration of Rights forbids it (which most do). A state may adopt strict gun control, unless its Declaration of Rights forbids it (which most do). A state may ban liquor, unless its Declaration of Rights forbids it (which no state does. In fact, 19 states had declared themselves “dry” before the 18th Amendment was ratified, taking it to the national level, which proved to be a mistake). While the Founders adopted the federal Constitution of very limited and defined powers to the national government, they hoped the states, acting under the umbrella of federal protection, would continue to experiment to find the best level of government for the maximum freedom and protection of the people.
A misunderstanding of Federalism deprives people
of responsibility and accountability for freedom
Lacking a commitment to true federalism allows people to yield to the temptation to shift the responsibility to the national government to protect us in nearly everything we do and from nearly every possible harm. It also gives the feeling of not having to feel accountable for what happens to others in society. Some of our libertarian friends, in their desire to be free, get caught in this trap.
A form of libertarianism advocates that because the Constitution is so limiting in its delegated powers to the national government, that the states and local governments are also limited by that same authority. Hence, they speak of “government” as being all-in-one and that local governments should be as removed from the people as the national government is. However, local government is merely a group of people who have joined together to create a better atmosphere in which to raise families by saying that these freedom-destroying influences will not be allowed in our communities. William Blackstone, the great commentator on the laws, whose writings became the legal bible for all law students clear up to the Civil War, explained the point at which the people can use laws to keep communities free from harmful influences:
“Let a man therefore be ever so abandoned in his principles, or vicious in his practice, provided he keeps his wickedness to himself, and does not offend against the rules of public decency, he is out of the reach of human laws. But if he makes his vices public, though they be such as seem principally to affect himself (as drunkenness, or the like), they then become by the bad example they set, of pernicious effects to society; and therefore it is then the business of human laws to correct them....”
Blackstone recognizes that a person can be as wicked as he wishes as long as he keeps his vices to himself and does not affect another person. But he then recognizes that there are some vices, the influence of which can never be kept private because it is the nature of evil to spread. He uses the example of liquor and its ill effects on families and society, and says that when certain vices always affect other people, then it becomes a public matter and it then is proper and necessary to use public laws to control the spread of such vices. Hence, communities are completely justified under federalism to control the proliferation of such nuisances or to ban them altogether.
This local use of federalism shows all people and especially our Creator that we treasure the precious gifts of agency and that we are both responsible and accountable to create an atmosphere of freedom and safety where His children can experience the full measure of liberty.
Let us have the courage to understand and restore the Founders marvelous doctrine of federalism. It will lead to solutions to America’s difficulties.
Earl Taylor, Jr.