Ok, so I’m going to have a bit of fun today and work to get y’all thinking. There are no real answers to the questions I’m going to pose or the conundrum I’m going to stir up. And that’s the fun of it. It’s going to make you think—really think—about where you stand on important issues like liberty, law and equality and the relationship our different levels of government have with these concepts.
It’s important, in this time of increasing state and federal power, that we wrestle with complex concepts like federalism. Are we willing to put up with state’s mandating what private businesses do in the midst of the coronavirus? Good question.
Consider the alternative: the federal government mandating what private businesses do in the midst of the coronavirus.
I just published an article detailing what selective incorporation is. Go read it if you haven’t yet. It’ll set the stage for this article.
Selective incorporation is the idea that the Bill of Rights now confines not only the federal government but also the state governments. This is an interesting and concerning change, one that I challenged you all to think about on Monday. The United States is a federalism. There are supposed to be distinct powers held by the federal government and state governments.
With this said, here are two questions to ponder, especially in this time of crisis when the state governments are the ones that are cracking down on our civil liberties the hardest.
ONe: What Is Federalism Anyway and Why Did the Founders Choose to Make the United States a Federalist Nation?
At it’s core, federalism is this: a central government with enough power to function effectively but one that does not completely dominate the states.
That’s the key right? The founders wanted a federal government that could function effectively, in contrast to the ineffectiveness of the Articles of Confederation, but one that didn’t completely dominate the states. It’s important that I establish for you all the theoretical reasons behind this kind of government.
Think about it. The founders were living under the Articles of Confederation. Under the Articles of Confederation, there was no peace, no order, and the constant threat of complete anarchy and chaos. Since the federal government, under the Articles, was so weak, it could do little to unify the states or enforce any law. Because of this, the citizens had little respect for the law and would take the law into their own hands. So the founders knew they had to do something different.
Important Concepts: Here are a few important concepts you need to know in order to understand federalism
Sovereignty: the supreme (ultimate) authority
Unitary government: government where all the power resides in the federal government. Sovereignty is wholly in the hands of the national government, so that the states and localities are dependent on its will. (Wilson 2020)
Confederate government: government where all the power over specific jurisdictions resides in the state and local governments. In other words, states are sovereign and national government is allowed to do only that which the states permit. (Wilson 2020)
The founders had experienced both types of government. Unitary (under the King of England) and confederate (under the Articles of Confederation) and both of these government systems suffered from major flaws. Allow the federal government to have too much power and it will abuse it and turn into a tyranny; allow the states too much power and it turns into anarchy and chaos.
So, the founders thought, well, why can’t we take the best aspects of both of these kinds of government and create our own hybrid government?
They did and we now know it as federalism.
Federalism is essentially a hybrid of unitary and confederate governments.
Two: What Are the Advantages and disadvantages to Federalism?
The founders knew what they were doing. They knew that America needed a stronger federal government to prevent anarchy but also knew that the government should be given very few powers in order to avoid potential abuse and tyranny.
They felt that leaving a good portion of the governing power to the states and their governments would do just that. They wanted the states to have complete sovereignty over all the areas not mentioned in the Constitution as Congressional powers. This meant that, as I said in my recent post on selective incorporation, the Constitution and Bill of Rights only prevented the federal government from violating the rights laid out in the Bill of Rights.
Their theory was, states were far better equipped to handle governing the daily lives of their citizens. Therefore, state laws, made to govern the people of the state, would be more representative of the state’s constituents. State government abuse might happen but at the state level, which is confined to that one state and less likely to last.
If a state abused its government power too egregiously, the state would eventually suffer the consequences of that. Their citizenry would dwindle and economy would suffer, ultimately forcing the state to adopt better governing techniques. OR the citizens living in a the state who were in favor of the increased use of state government power would stay and those who found it abusive would leave.
Let’s chew on this a bit more. The right of the states to govern their own states, apart from the federal government, was an essential part of the makeup of the Constitution. The power of the states works to counterbalance the power of the federal government and prevent any one government from getting too powerful. The founders knew that certain rights—for instance, the right to bear arms—could be violated by the state government if the state government Constitution allowed for that. Citizens who didn’t like guns or felt that gun rights were overblown, could stay there and citizens who wanted their gun rights protected by the state governments could leave that state and live in a state that was more friendly towards gun rights. Remember, the Bill of Rights originally only protected your rights (to guns in this example) from federal encroachment.
This means that the federal government was expected to protect the rights of the states at the expense of the rights of the individual if stepping in meant stepping over the federal government’s realm of sovereignty. Make sense?
So, why was it so important to our founders to preserve state rights, even at the potential expense of individual rights? And should we feel the same? This is the question isn’t it? (Think about it, they even set up an entire Congressional chamber to represent the states and their legislatures via the Senate. Prior to the 17th Amendment, all Senators were elected by the state legislatures not the popular vote of the citizens in the state).
Imagine the federal government trying to handle and pass laws about every single, minute issue for every county and city and state? Imagine the difficulty implementing all of these laws. Better yet, imagine our country with no states, just one big mass of land and one central government. How well would that work?
There are some flaws in federalism, namely that some rights do end up getting abused by the state governments. And that is a major problem, not to be minimized. And yet, prior to the 14th Amendment and selective incorporation, the federal government let it happen. It was not their sphere. Their Constitution confined them just as the state constitutions confined the state governments.
But as soon as the federal government stepped into the realm of state sovereignty and began to invalidate state law, suddenly states were at the behest and mercy of the federal government. This means that state governments and state law are nice in theory, but almost unnecessary since their laws can be completely eliminated should the federal government decide to do so.
But you may be thinking, “Yeah, so the state’s rights are violated, but it’s to protect the rights of the individual!”
You’re right. Aren’t we glad slavery was eliminated? Aren’t we glad everyone is able to vote with no state laws that target certain groups to stop them from voting? Aren’t we glad that states don’t have a mandated religion (as some did early on!)?
This is the challenge isn’t it? Abuse happens at every level of government, even local and state. Why? Because as Madison and the founders knew, men are innately selfish, ambitious and flawed.
Since the founders knew this, they really wanted to make sure that the potential abuse was kept as far away from the government with the greatest ability and amount of power to abuse…should that government ever choose to abuse its power. And we know, at some point, any government will abuse it.
Think about it. I remember having this discussion in one of my undergrad classes and it was riveting, so I hope it gets you all thinking as well.
What is worse, hypothetically?
A state limiting our gun rights, or the federal government limiting our gun rights?
A state hindering our free speech, or the federal government hindering our free speech?
For example: a state makes a law restricting gun rights. The citizens of that state have a few options. They can appeal to their state supreme court, move to another state or even appeal to the federal government (which is the very issue in question, isn’t it).
But what if it’s the federal government that makes a law, upheld by the Supreme Court, restricting gun rights? Who does a U.S. citizen turn to? Who do they appeal to?
There is no higher or more powerful source of government than our federal government, is there? Citizens can try to appeal to their state governments, but with how weak state governments have become—at the behest of the federal government—there is little the state government could do. The force and power of the federal government would win.
If we are to follow the Constitution as originally written, the federal government should not be allowed to impose it’s will or constitution on the states. And yet, there have been some rather egregious violations of individual rights by state governments that the federal government has stopped.
There are so many other theoretical components to federalism that I could unpack here, but I think I’ve given you all enough to chew on.
I’ll leave you with this food for thought. Should we start complaining to the federal government about the ways that our state and local governments are clamping down on private businesses during the coronavirus? Should we demand more federal control at the expense of state control?
Or should we re-evaluate how far away we’ve gotten from the founder’s principle of federalism and appreciate that it’s just the local and state governments that are clamping down, and nothing more?
I don’t have an answer for you, but I hope I’ve given you pause and a reason to look for your own answer.
The Liberty Belle