Give States Their Power Back

by Civitas Review online, September 19, 2013.

September 17 was Constitution Day, a celebration of our nation’s most important political document. For 226 years, our Constitution has weathered wars, disasters, civil strife, and economic downturns. However, a quick glance at the state of the Constitution today gives rise to serious concerns: the Department of Justice spies on journalists, the National Security Agency collects information on law-abiding citizens, the IRS tracks and targets conservative groups…the list goes on.

Now, threats to the Constitution are nothing new. Throughout our history, there have been grave and recurring dangers to our system of government. In 1798, the Sedition Act made it a crime to “oppose any measure…of the government,” or to “print, utter, or publish…any false, scandalous and malicious writing or writings against the government of the United States.” In 1831, President Andrew Jacksonflatly refused to enforce the Supreme Court ruling in Worcester v. Georgia, reportedly saying: “[The Chief Justice] John Marshall has made his decision, now let him enforce it!” And in the 1940s, the United States government rounded up and interned thousands of loyal Japanese-American citizens.

But today, one of the most worrying – and least visible – trends in constitutional deterioration is the dramatic erosion of the power and influence of state governments. Since the Progressive Era in the late nineteenth century, political power has been gradually stripped from the states and consolidated in the national government. This is wholly inconsistent with the design of the Founding Fathers, and poses a major threat to liberty.

When the framers wrote the Constitution, they enshrined state power in the Tenth Amendment, which encapsulated the federal principle. This principle held that states ought to have the greater weight of political power, while the federal government should assume a more limited role. The reason for this was simple: the Founders knew that a state government would be more representative of its people than a national government. Fisher Ames, a Massachusetts Federalist,wrote:

Too much provision cannot be made against a [national] consolidation. The state governments represent the wishes, and feelings, and local interests of the people. They are the safeguard and ornament of the Constitution: they will protract the period of our liberties; they will afford a shelter against the abuse of power, and will be the natural avengers of our violated rights.

Today, however, state authority is feeble and atrophied. Myriad federal regulations constrain state actions, reducing the federal principle to a transparent charade. There are federal regulations for everything: criminal justice, education, energy, the environment, the economy – the list goes on and on. And the state has to obey all of them. It is rather like an overbearing mother who tells her son: “Of course you can choose what you wear to school – as long as you wear blue jeans with a red T-shirt.” And where the federal government doesn’t exert control through outright mandates, they use the purse string to control states. “Do as we say or we’ll cut off your funding” is a common tactic used by the feds for everything from transportation to education.

The consequence for this destruction of the federal principle is disastrous in the long term. We have undone the institutional safeguards of liberty, trading away a responsive government comprised of our fellow citizens for a distant and faceless Leviathan in Washington. But it isn’t too late to save ourselves: the lessons of history remind us that the Constitution is always under threat of destruction, but its salvation is always possible through the determination and courage of good citizens.