Thoughts about Federalism.

In the late 1960s, shortly after I arrived in Washington and started by job at HUD, I was asked to chaperone a group of foreign journalists spending several days in Washington (as part of a broader US tour) to learn about US domestic policy. How or why I was asked to do this, I cannot remember, but it was a very interesting assignment, as I was as anxious to learn about the journalists’ homes, as they were to find out about America. I cannot even remember where they were all from, except that I remember having lengthy conversations with a reporter from Japan and one from Hungary (rare in those days for someone from behind the Iron Curtain to have an opportunity like this).

We attended a number of meetings and took a number of tours around Washington. The group was able to absorb most of what they were shown and told, I believe, with one notable exception. They could not get their arms around the American concept of “federalism”.

Most came from countries which had the equivalent of states or provinces – but these were all administrative entities, designed to make the governing of the country work a bit more smoothly. All of the officials of these provincial governments were bound by the policies of the national leaders. They were truly, for the most part, administrators.

They quickly realized that this was not the case in the United States, that here the states had a much more prominent and independent role. They learned that we were not a top-down country, where all power settled at the national level, but a bottom-up country, where power began at the state level, and that the federal or national authority was limited to that specifically provided by the Constitution, and that, according to the Tenth Amendment of the Constitution:

“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.”

This was a radical concept to the visiting journalists. They could not understand how it could work.

They were not alone.

The issue of states’ rights vs. federal authority has long bedeviled this country. The balance has been difficult to maintain. On specific issues, and in general, Americans have found themselves at odds as to where particular powers lie. The Supreme Court, the arbiter of Constitutional authority, has ruled in contradictory manners on various issues, depending on the time, and of course on the Court’s personnel.

In the current political climate, questions about the limitations of federal power have arisen again and again. In the area of health care. In the area of education. In the matter of workers’ rights. In the question of immigration control.

Some areas, like national security, seem clear. But in most areas, clarity is lacking. The Constitution does provide that the federal government has the authority to regulate interstate commerce, and the breadth of the definition of interstate commerce has been one of the most contentious issues of Constitutional law, with the court tending historically to treat the phrase very broadly.

In my ideal constitutional revision, the tenth amendment would be drastically changed or eliminated, and other changes would be made to limit the rights of states to set out on their own. Of course, there is potentially some danger here, but the dangers of over concentration of authority can be handled in other ways within a revised document.

We talk a lot about a “global world”, where American policy and prosperity is more and more dependent on what happens elsewhere, on things well beyond our control. But we seem to talk less and less about a “national country”, where again specific issues cannot be dealt with differently on a state by state basis if the United States is to be able to grow and compete.

People move from state to state, often living in two or more states, or commuting. Or they live in a metropolitan area which encompasses more than one state. Business, no matter where they are incorporated or formed, work nationally, often having physical locations in many more than one state. What is the justification for saying that crucial state laws involving these individuals and businesses can differ?

We have no national industrial policy. We have no national health system. We have no national manufacturing policy. We have no national immigration policy. We have no national education policy.

Of course, we have federal laws that touch on all of those issues. But “touch” is a good word – for all of the federal laws have to be sensitive to the Constitutional limitations, and all federal laws are subject to Constitutional challenge, and too often federal laws become an instigator of conflict between those who claim that federal government is being too intrusive, and those who think there should be a stronger federal presence.

There are times, such as the days prior to the enactment of civil rights legislation, that states’ rights led to some very dangerous and unfortunate situations. People seem to often forget this when arguing for more civil rights today. On the other hand, the proponents of a stronger federal government often use slight of hand to increase federal controls – an example being the withholding of highway funds from states unwilling to meet certain federal standards for speed limits. And of course, even those who would say that they are on the side of the states, have their exceptions when it comes to federal control: many of them think there should be federal laws against abortion, for example.

The conflict between state and federal rights is obviously very complex. But, as the world gets more global, it seems to me that the concept that the country should devolve more of these decisions to the
50 states is anachronistic and, in the short run and the long run, will not work.

But this is the way it is, and it is not going to change. So we will see.

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