The Principles of Federalism: Still Alive, But Barely –

By Stuart MacPhail – October 2020
Over this past year a large portion of US citizens has been impacted by various forms of civil unrest, often triggered by growing belief that local, state and federal governance is less and less responsive to the voice of everyday people.

Part of that problem stems from local and state leaders ignoring their powers under America’s Constitution, and relinquishing powers and decision-making to the national government.  America’s founders intentionally divided governance powers under a system called “federalism.”  What follows is a reflection of what is being done to restore federalism.

• On September 17 – Constitution Day – a large number of state legislators and civically-active citizens from across the US participated in a webinar called Restoring the American Voice.  The special presentation was hosted by the State Legislators Article V Caucus and Path to Reform.

The main presenter, retired Utah legislator Ken Ivory, focused on the principles of federalism on which the US Constitution is based, and how this country needs to return to those principles to give Americans a stronger voice.  Those who missed the webinar can see it HERE.  The hosts will present another webinar on Tuesday, November 17, 8 PM Eastern time.  Watch for the November edition of this newsletter for details.

• Also on Constitution Day the Editorial Board of The Virginian-Pilot Daily Press (Norfolk, VA) published an editorial entitled On Constitution Day, a plea to make federalism ‘more perfect’.

The editorial made the point that “[t]he lines of [governance] authority have been blurred and we do not talk about it much.  We hardly talk about it at all, in fact.”  The editors commented that “since the 1932 election of Franklin Roosevelt election and the post-Second World War rise of the national security state, there’s been no serious doubt about the dominance of the federal government.”

They concluded by saying “[w]e can do better.  Really.  In the spirit of Constitution Day, we should … Get this sorted out better.”  Read the editorial HERE.

• That same day The Joplin Globe (MO) published a piece by county prosecuting attorney/columnist Will Lynch.

Lynch made the point that after the Sept. 17, 1787 signing of the Constitution, “delegates Alexander Hamilton and James Madison, along with John Jay, wrote and published the 85 Federalist Papers under the collective pseudonym ‘Publius’ to promote its ratification by the states.”  Among other things, those papers warned against factions, defended the checks and balances outlined in Constitution, and explained the federalist character of a democratic republic.  Read that column HERE.

• The Gainesville Sun (FL) also marked Constitution Day with a piece entitled It is time for Americans to reclaim their power by Sandy Clements.

About America’s founders and the Constitution they drafted, Clements observes, “[a]s a product of imperfect human beings, [the original Constitution] was seriously flawed in important respects.”  But, says Clement, “To their credit, the founders had recognized their fallibility and provided a mechanism in the Constitution to correct its errors, Article V.”   Read the article HERE.

• Chris Maisano recently wrote a lengthy piece in Jacobin Magazine entitled Why We Should Care About American Federalism, espousing the idea that federalism is bad for America.  He claims “we desperately need fundamental changes to the country’s constitutional order.”

Maisano asserts that “From its inception American federalism has primarily been a strategy of conflict management, an institutional filter intended to dilute the exercise of popular rule.  It has been one of the most effective means of protecting established interests and one of the leading engines of inequality in American life,” going on to say, “the fragmentation and competition it encourages has been nothing short of disastrous.”

The author drones on, listing his reasoning why all governing should come from the federal level.  While most thoughtful state legislators will sharply disagree with Maisano, his piece is worth reading just to see the rationale of today’s anti-federalists.  Read it HERE.

• Morgan Liddick, a former member of the US Foreign Service and a long time college professor, wrote a piece for the Summit Daily (Summit County, CO) that suggests it was because of a significant level of respect for federalism by the current national government that most responses to COVID-19 were left to individual states.  He concludes that such a federalism-based approach was good.  Maisano (above) said it was bad.

Liddick says, “American federalism has many advantages.  It allows states to learn from one another what works best or not at all.”

He points to eloquent arguments for the principles of federalism made in the Federalist Papers.  In Federalist 45 Madison argues that “[t]he state governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former,” wherein he points to establishment of the primacy of the states in his Constitutional view.  Read Liddick’s column HERE.

• It was said above that there is “a significant level of respect for federalism by the current national government.”  But that is not true for every department of the current federal government.  In early September Ilya Somin wrote for The Volokh Conspiracy about the federal government’s Center for Disease Control (CDC) announcement that it was implementing a national “Eviction Moratorium.”

He said, “It’s a power grab that could undermine federalism and separation of powers, and imperil property rights.”  Read his article HERE.

• On September 16 Lavarr Webb of the UtahPolicy blog wrote a piece addressing the question Does federalism work in a crisis?  The writer weighs the pros and cons of top-down vs. state control of situations like COVID-19.

He says, “The founders intended ‘ambition to counteract ambition’. The tension between the levels of government is designed to prevent either from gaining too much power, thus preserving freedom for citizens and thwarting tyranny.”

“Personally,” says Webb, “I think that federal-state and state-local government tension is healthy and necessary, even in a crisis. States and local governments are bulwarks against federal tyranny.  A crisis can’t become an excuse for the federal government to consolidate even more power.  One-size-fits-all federal mandates simply don’t work.  I prefer even a somewhat chaotic, fragmented approach to national crises to a federal government that runs roughshod over state and local governments and does not take into account local and regional differences.”  Read his piece HERE.

• On September 10 The Fulcrum carried an article by Gregg Girvan entitled Reimagining the sharing of government authority in the time of COVID.  Girvan looked at the uneven levels of lockdown during the COVID-19 pandemic and suggests “a centuries-old constitutional debate keeps raging about the central question of federalism: What is the balance of powers among the local, state and national governments?”

Girvan offers several good, practical ways states and the national government can work in tandem to prepare for and deal with times of crisis, but that requires states having a reasonably united voice at the planning table.  Conference of state legislators anyone?

He says, “While centralization of power to fight a pandemic may seem appealing, we must resist the urge to plunge headfirst. The message is clear: Our system of federalism need not be vilified, but rather leveraged to take on the pandemics of the future.”  Read his thoughts HERE.

• On September 15 Governing (an affiliate of e.Republic) carried a column by Donald F. Kettl entitled A Forum for Federalism That’s Sorely Missed.

Kettl reports that “A small band of federalism fans has been plotting for some time to bring the old Advisory Commission on Intergovernmental Relations [ACIR] back to life. There seems to be little hope they’ll be able to re-create the old tunes, but the effort is a worthy one: We need the kind of forum the ACIR provided as much as ever.”

The ACIR closed down in 1996, and Kettl says fans of federalism have been debating how to bring it, or something like it, back ever since.  He continues, “We’re no doubt much poorer for the loss of the ACIR.  But its death decades ago — and the failure to bring it back to life since — is a sign of the widening divide between the  federal government and the states, and among the states themselves, that no single organization can bridge. It sure would be healthy, though, to have a forum in which to debate these questions — and a common language, fueled by a pool of rich data, with which to have the conversation.”  Read the column HERE.

• On September 2 the Wallowa County Chieftain (Enterprise, OR) carried a story entitled On Liberty: Local problems best solved locally.  The story dealt primarily with issues surrounding state vs. federal control/management of forests.  Again, federalism is proposed as the source of solutions.

The writer notes, “The concept of federalism was central to our founding and exemplifies the United States’ high regard for regional, local and individual diversity, which is widely varied but also capable of unity.  Federalism is the bedrock upon which federal (or central) government and state/municipal governments achieve harmony and cultivate optimal conditions in which individuals can thrive.  It limits the power of the central government and gives equal footing to state governments because each state is unique; policies that work in one state often don’t apply to other states.  Additionally, the larger the scope of a program or policy, the more difficult it is to implement, and the more risky it is because its potential failure will impact a larger group of people.”

He points out that “[t]he 10th Amendment of our own Constitution explicitly lays out the division of power, stating, ‘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.’”  Read the piece HERE.

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