Federal and State Unbalance
Federalism Is a Tug of War and States Need to Pull
REP. KEN IVORY/MAY 14, 2019
Did you have a nickname growing up? I did. And I hated it!
I detested this nickname so much that I hesitate even sharing it with you. However, if you’ll promise that it will stay just among us as close friends, I’ll let you in on it. This dreaded nickname was … Chunky. (Terrible, right?)
Now, there was one, and really only one, benefit to having the nickname Chunky. Whenever we had a tug of war, I got to be at the end of the rope. This meant that I was the last one to go into the mud if we had the weaker team.
I’ve often used this analogy of a tug of war to illustrate our jurisdictional duty as States (here and here), including while discussing a bill regarding federal assertions of control over land-use policies in our state. Even if you don’t face this particular issue in your state, no doubt you face any number of federal policies that interfere with your ability, right and duty to care for the health, safety and welfare of your citizens and communities.
Frequently, we point our fingers in derision at our national governing partner’s continued gobbling up of powers reserved to the states, and its negative impact on our ability to care for the unique needs of our people. We often wonder, what would happen if Washington should rediscover and abide by the separate governing roles and responsibilities between the national and state governments, engineered “as a double security to the rights of the people.”
By design, “in the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.” Federalist 51.
Our unique system of government really is like a Tug of War, creating the healthy tension between the state and national governments that is vital to securing the liberty of the people.
As this “more perfect Union” began, many of the Framers believed this governing Tug of War would not create the fair and balanced tension required to protect the rights of the people. In fact, many believed, like John Dickinson, that the national government “as trustees or servants of the several States will not dare, if they retain their senses, to violate the independent sovereignty of their respective States…”
James Madison, noted in Federalist 45, that “the State Governments will have the advantage of the Federal Government” from “the weight of personal influence” to “the powers respectively vested in them,” and from the “support of the people” to their ability “of resisting and frustrating the measures” of the national government.
Alexander Hamilton in Federalist 28, and James Madison in Federalist 46, both provided extensive lists of the powers reserved to the States to “afford complete security against invasions of the public liberty by the national authority.”
Rather than pull the national government into the tug-of-war mud at the outset of our governing experiment, the States preserved and maintained this essential governing balance. They did this by consistently pulling together. They didn’t have to pull hard … but they did have to pull consistently in order to maintain the governing tension that preserves the people’s liberty.
However, despite the power of the States to maintain balance, over time they began to loosen their grip on the rope. Perhaps things were going so well they wondered why they needed to keep pulling on the rope. Maybe some States simply got tired of pulling on the rope. Eventually, some States got money from the national government so they feared that pulling on the rope might cause their money to disappear. And some may have forgotten why the States were ever pulling on the rope in the first place… Little by little, more and more of the rope has ended up on the federal side of what was designed to be a healthy competition.
“When,” as Thomas Jefferson warned in 1821, “all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power,” we are tempted to assume that electing some new and enlightened leaders in Washington to push on the rope will solve all our problems.
This assumption defies common sense as well as our unique constitutional structure. In our compound republic, the States, by design, must pull on the rope. They don’t need to pull hard, but they must pull together, and they must pull always.
Even Alexander Hamilton admonished in the New York Ratifying Convention of 1788 that “This balance between the national and state governments ought to be dwelt on with peculiar attention, as it is of the utmost importance. It forms a double security to the people. If one 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 a certain rivalship, which will ever subsist between them.”
Colleagues, it’s time to fully re-engaged in the governing Tug of War that characterizes our distinctive system of American federalism. I would encourage you to study the tools that Madison (Federalist 46) and Hamilton (Federalist 28) both declared would “afford complete security against invasions of the public liberty by the national authority.”
When I was first elected in 2010, I was perplexed by the question “What rights and powers do I have as a state legislator to uphold and defend the U.S. Constitution?” Before taking office, I studied this question tirelessly. The outline I prepared for my own service was eventually published into a little book called “Where’s the Line? How States Protect the Constitution.” In the hope that my study might benefit you, HERE is a link where you can download this book for free. I only ask that you contact me directly and let me know your thoughts and impressions. I’d also like to hear your thoughts regarding how we can work together to pull on the rope in order to restore and maintain the delicate balance of governing roles and responsibilities that will enhance the efficiency, effectiveness and accountability of government and, in the process, restore the governing voice of our people.