Now, for some of you, it was not the first term that was the stumper - but the phrase taken as a whole. This is where I would like to focus my time today. What does federalism look like in contemporary America? Or more to the point, does it even exist, today?
This question was brought to my mind recently as my school debate club presented a debate on States' Rights and federalism in America today. Our resolution was that State legislatures should be able to nullify federal laws that they deem are unconstitutional - with the intention of checking illegitimate growth of government. I, arguing in opposition, found myself pointing to the flaws of the resolution on the basis that there was no objective standard for states to determine constitutionality - but then I considered - what check do we really have even now?
One answer is, of course, the Supreme Court of the United States - as the final arbiter of constitutionality. However, one need not be aligned with a particular political ideology to recognize that trusting in the infallibility of 9 men and women in black robes is a frightening possibility - particularly as we often see the vote swing on 1 justice.
Under our Constitution, there were several other checks on the growth of the federal government. First, powers for the central government were enumerated, or listed, while state powers included those not specifically delegated to the central government. The powers of Congress are carefully listed in Article 1, Sec 8 of the Constitution. Even so - the powers of the central government have grown over time, taking advantage of deliberate ambiguity within the Constitution to provide the basis for sweeping reinterpretations of the powers of government. If you haven't heard of the Supremacy Clause (Art. 6), Necessary & Proper Clause (Art. 3, Sec 8), or Commerce Clause (Art. 1, Sec. 8) - please, read up on them. These three clauses have been used to justify radical growth of the central government.
Another key check that we provided by our founding fathers was the 10th Amendment, which states:
"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 amendment is often the trump card used by many conservatives to argue for states' rights, and rightly so. This amendment does reserve any power not granted to the federal government, to the various states. I, being a "face value" kind of person, agree with this interpretation, since it appears to be a common sense protection - there is only one reason to include a passage like this in our governing document - to prevent federal encroachment on state issues. Unfortunately, even the 10th Amendment has been emasculated today - primarily through judicial interpretation and "necessary and proper" rhetoric.
As it stands then, I am frightened by the lack of protection that we have left to us, the American people, from the power of governmental encroachment.
I have no doubt that the checks and balances of federalism in America are crumbling, today. History has shown that the separation of powers always tend to weaken as government grows. We live in an era of federal mandates to states, sweeping legislation, and executive orders. I won't try to blame an ambiguous "big brother" for the problem either - in large part, it has come through repeated crises where the People demanded action by their government. The Great Depression, the Cold War, and the War on Terror have all afforded ample opportunity for the government to grow with full public consent. Changing the flow of government growth, then, may ultimately prove impossible - even the founding fathers recognized that their institutions would be corrupted over time. We can, however, do our best to educate future generations on the importance of preserving our pillars of protection, though. We must explain why they were instituted, and why it is vital to preserve liberty - even occasionally at the cost of security and comfort - so that future leaders will be equipped with the tools they need to make wise policy decisions.