Federalism, State’s Rights (1 of 3)

I believe in Federalism as it was constituted in the Constitution of the United States of America ratified in 1789 and the Bill of Rights ratified in 1791. Simply put federalism is shared government, in our case between the individual states and the Union of States, or central government.

When the Thirteen Colonies broke from England in 1776, in November of 1777 they formed into a Union of States under the governing document Articles of Confederation. Article II and III state:

II.

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled. 

III.

The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.

Note the use of the term “league of friendship with each other.” As I’ve stated in writings before, the 13 colonies were colonies of England made clear in Britain’s 1776 Declaratory Act that stated, “all colonies and plantations in America have been, are, and of right ought to be, subordinate unto, and dependent upon the imperial crown and parliament of Great Britain.” Even so, pragmatically each was independent from the other, sovereign in themselves having no jurisdiction outside their colony, certainly not upon another colony. It was almost like each colony was a nation unto itself. Even so in 1777 when it was abundantly clear they had to totally break with England they did not even consider dissolving their individual colony and together becoming one nation. In this case the official name they gave this Union, United States, would have then become United State, singular. The principle at work, though, was that the best government was local government because who knows you better and the needs of your community better than fellow members of your local community, your neighbors. They were rebelling against a government center that was over 3,500 miles away, or even if it was just hundreds of miles away.

This union was not formed like two people falling in love and uniting in marriage because of their mutual love, they were basically forced into it because it was better this than continuing to suffer under King George. Sen. Mike Lee writing in his book, Our Lost Declaration, writes:

“If there was going to be a movement for independence or a war, it was more likely that it would be betweenthe colonies than on behalf of all of them. The colonies had very little in common and represented a patchwork of classes, cultures, faiths, and traditions. They squabbled constantly.”

But neither was it thirteen strangers deciding to marry simply because they perhaps had more in common with each other than not in common. In fact they were communicating with each other through Committees of Correspondence first established in Boston in 1764 over common issues concerning all the Colonies like the Townsend Acts, and supporting each other in how they dealt with those issues. So it was in the beginning a practical marriage, not so much a morally decided marriage. This becomes clear in the fight over state’s rights versus national rights.

An example from my own life helps me understand this union. One summer I had a job with a national raisin company as a forklift driver. When the dried grapes came in from the various vineyards I would take the boxes filled with “raisins” and stack them for later when they would go into the processing plant and come out in little boxes of raisins shipped all over the world. The company was part of a co-op of farms united together to market, grow and sell their raisins and as a group they would make decisions on how best this union would work from farm to box. This initial union of states was like that, more a co-op than one government. A modern phrase probably expresses well how it went, it was like trying to herd cats. Without a strong enough central government it was almost impossible to get anything done and hard to represent themselves as a nation to work with other nations in trade.

Ten years later the need for change filled men like Jefferson, Madison, Washington, Sam Adams and John Adams, Hamilton, Franklin and many others and a proposal was made to “fix” the Articles. A serious tension developed over the meaning of fix. One camp wanted only a minor adjustment to the Articles, the other camp believed it must be radically changed into something new. In the summer heat of Philadelphia representatives from the 13 States met in Independence Hall and a compromise was reached over where the power of independent states rested and where the power of the central government would lie; federalism. This is made very clear in the 10th Amendment: 

“Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”

 

As you can see in the illustration above, the Articles of Confederation was set on the ten-yard line near anarchy. Anarchy in this case simply means each state totally independent from the others as they were before the Articles. Ten years later they shifted that position to the twenty-yard line not that much farther from where the Articles rested. There were those who wanted that line farther down the field near the fifty-yard line. Beginning with President Theodore Roosevelt that line kept being dragged farther away from anarchy to totalitarianism (or a term we today prefer, statism) and when I created this chart a decade or more ago the two political parties had by this time shifted far down the field from where we began. Today I would place the Republican Party at the 20-yard line and the Democrats at the 10-yard line. But that’s another topic for another day.

I began this with the statement that I support where the Constitution fell on that field, though I recognize that with our growth we would have to shift that line to at least the 30-yard or farther line, perhaps to the 40-yard line, but no farther. In other words, shift a little more of our state’s power to federal (central) government power.

The original federalism has never actually changed constitutionally. I say it this way because it has changed, there has been a great shift but this has come through Supreme Court decisions which technically were illegally decided as the law of the land. Only Congress has that role and the right to make laws, not the Supreme Court, not the Federal Court system, but we have allowed them to stand as law because of the modern doctrine of living Constitution. This is also another subject for another day.

There is a phrase that we commonly use to express the form of our government: three co-equal branches of government. I don’t think we really know what that phrase means, it doesn’t mean how we commonly interpret it. What it means is that Congress, the Presidency, and the Court are independent from each other as a check-and-balance so no one body has all the power. In that sense they are co-equal, but not in the sense that we traditional mean that term. They really are not “co” equal because the majority power rests in the Congress where laws are made. The least equal is the Supreme Court, instituted only to be an arbiter of disputes between the States and between the States and the Federal government. Today much of Congress’s power has been given away to the President, and mostly to the Supreme Court whose rulings are more in line with making laws than being a referee between disputes. To understand better what our Founders were thinking in this separation of powers (Congress, President, Court) read Federalist 51 written by James Madison.

When I was studying slavery in the United States for my essay on “Race and Racism” I could clearly see the battle between state rights and central government rights, who had the legitimate power to do what. Those for slavery argued state’s rights and those fighting slavery argued central government rights. This argument certainly goes all the way back to that Constitutional Convention in Philadelphia and the states with the smaller populations, which happened to mostly be the Southern states, feared the tyranny of the majority and argued, fought for, and won the inclusion of the Bill of Rights to ensure freedoms would not be lost. One of the arguments against the Bill of Rights was that the governing document already limited the tyranny of the majority. It did, but the smaller states wanted an insurance it wouldn’t.