To balance federal/state power, state legislators must rise to their constitutional role

by LaVarr Webb – April 21, 2021

How Freedom is ProtectedIn Federalist 51, James Madison wrote: “In the compound republic of America, the power surrendered by the people is first divided between two distinct governments (federal and states), and then the portion allotted to each (is) subdivided among distinct and separate departments (executive, legislative and judicial). 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.”

In this era of federal dominance and massive federal intervention in every facet of life, it’s easy to forget that our nation’s founders intended the states to be co-equal partners with the federal government in the governance of America.

After all, it was the colonies that initially formed the national government. And the founders made certain the Constitution contained provisions to protect states from federal overreach.

The 10th Amendment states very simply and forthrightly that the power of the federal government is limited to those duties described in the Constitution. James Madison wrote in Federalist 45:  “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”

Madison further described a very limited role for the federal government and a much broader role for the states: “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, and the internal order, improvement, and prosperity of the State.”

The founders assumed the states would aggressively resist federal overreach. In Federalist 46, Madison predicted that “ambitious encroachments” by the federal government would be met aggressively by all state governments. “Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole.” He said states would oppose federal overreach as though a foreign government had invaded.

The founders also gave states a protocol to ensure their collective voice would be heard by the national government. State legislators from the 50 states were the state officials constitutionally charged with defending states.

Although many state legislators don’t appear to realize it, they are, in reality, constitutional officers in our “compound republic,” as Madison called it. The fate and future of the states reside in their hands. Their high status in our constitutional republic gives them important roles not just at the state level, but also at the national level.

In addition to the 10th Amendment, the founders invested in state legislators two powerful tools. First, they were to select U.S. senators, who served at their pleasure. This ensured that states helped control the federal political process. It made state legislators partners in the federal government instead of just another advocacy group. You can bet U.S. senators paid attention to state priorities when legislators elected them.

Second, legislators, under Article V, were given co-equal power with Congress to propose constitutional amendments. If they didn’t like the direction Congress was taking the country, they had power and a protocol to take action on their own, without lobbying and begging the Congress.

Today, unfortunately, both of those tools are essentially gone and the 10th Amendment is ignored. Since the 17th Amendment was ratified in 1913, U.S. senators have been selected by voters at large. The reasons for that change were valid, and we will never go back to legislators electing senators. But with that change, states lost incredibly powerful leverage at the federal level. That loss needs to be replaced with something else that gives legislators clout with Congress.

In addition, legislators have, for all intents and purposes, lost the ability to call a constitutional convention to propose an amendment, as provided under Article V. Fear of a runaway convention and lack of any procedures to call and conduct a convention have rendered it impractical. Thus, legislators have lost another crucial tool granted by the founders so states could be players on the national level.

It is ironic to me that critics of an Article V constitutional convention (and even some state legislators) trust Congress to sit, in effect, as a constitutional convention every day they are in session. But they don’t trust legislators to assemble in a constitutional convention that would have not one iota more authority than Congress has every day.

If legislators can’t get themselves motivated enough to perform their constitutional role, then certainly no one else will. State legislators once were a power in the federal system. They once had clout. Now it is gone, a victim mostly of neglect. Legislators today have no practical protocol, no means to work together in any meaningful fashion. They can pass resolutions expressing their will, but such statements are mostly meaningless.

It is admittedly difficult for states to work together. Congress meets on a very frequent basis. By way of process and protocol, it’s relatively easy for Congress to pass a law or propose a constitutional amendment. It’s much more difficult for states. Their power to influence policy at the federal level is a collective power. A supermajority of states must be in agreement. No state, alone, can effect change at the federal level. That’s a high hurdle to vault.

Resolutions passed at National Conference of State Legislature meetings or other organizations are mostly ignored. It is only the awesome and formal act of 34 or more states passing a similar resolution to call a convention to address a matter of great import that it becomes serious. Obviously, in this diverse country, such action won’t occur very often. The need would have to be enormous or the grievance very dreadful for states to take such action.

But, just having the ability to act in a formal, binding way would be a check on the federal government. Today, that ability is all but gone. So the states have no remedy, no clout, no protocol. Congress is free to ignore state desires, in violation of the founders’ intent.

A large part of the solution to getting the federal government under control and bringing government back to communities and neighborhoods is this:  Re-enthrone state legislators to their proper status in the federal system. Give them a protocol that allows them to work together in a binding fashion.

If legislators had the ability to collectively initiate constitutional amendments in a practical way, and the ability to collectively overturn or force reconsideration of bad federal legislation, then federal/state power would be better balanced. States would, once again, be players in the federal system — as the Founders intended.

To protect citizen freedom, the founders expected the three branches of government, and the two levels of government, to push and pull each other, to check and balance each other. Such tension does occur among the three federal branches. And Congress certainly pushes states. But states have little ability to push back, contrary to the founders’ intent.

If the status of states is to improve, if states are to regain their proper role, if we are to restore the ideals of the Founders, then state legislators must rise to the challenge of their constitutional role.

Utah Policy