Federalism

Preserving the Union by Acting More Like Us

While working in Japan years ago, I read a book by Atlantic Monthly writer James Fallows. In the late 1980s, most pundits advanced that the cure for American economic and societal woes was to be more like the Japanese. The title of Fallows’ book suggests that the real solution to America’s challenges was to act “More Like Us: Making America Great Again.”

A Diverse and Divided Nation, Then and Now

Recent events in America reveal a deeply fractured nation. An “elections-have-consequences” justification to exert even more control from Washington over every aspect of America’s diverse communities will not heal this divide. It will exacerbate it.

The colonial America, which gave birth to a new nation and an entirely new system of government, was racially, culturally, geographically, economically, politically and religiously diverse. In fact, some at the Constitutional Convention even balked at the idea of praying together for their mutual safety and independence.

Recipe for the Coexistence of Diversity and Union

However, their mutual commitment to the American creed that all people are created equal with inalienable rights to life, liberty and the pursuit of wonderfully diverse views of happiness provided the purpose around which these diverse communities could come together into a more perfect union of states.

In order to “to secure these rights,” and synergize the blessings of diversity and stability of union, the Framers engineered an entirely new structure of government. They called this new form a “compound republic” (Federalist No. 51). They proved to the world that through faithful observance to this unique political configuration – American federalism – diversity and union could coexist then … as well as now.

Across the political spectrum, many still question whether diversity and union can coexist in America. The solution, presaged by Mr. Fallows, is not to be found from a new brand of politician, through a new type of policy, or in a new governing paradigm; it is to be found in being “More Like Us.” Restoring and preserving our uniquely American governing structure, the Supreme Court persistently observes, has been prerequisite to the coexistence of diversity and union from the beginning.

SCOTUS: Constitutional Canaries in the National Coal Mine

For more than two decades now, the U.S. Supreme Court – the constitutional canaries in our national coal mine – has been signaling that growing conflict between local diversity and national union is an outgrowth of widespread disregard for these structural protections.

While it may seem “a counter-intuitive insight, that freedom is enhanced by the creation of two governments, not one,” the Justices have admonished, “federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’” Bond v. U.S. (2011).

“Federalism is more than an exercise in setting the boundary between different institutions of government,” though doing so must be an indispensable, ongoing exercise. Continuing, the “allocation of powers between the National Government and the States enhances freedom,” the Court instructs, “first by protecting the integrity of the governments themselves, and second by protecting the people, from whom all governmental powers are derived.” Bond v. U.S. (2011).

States Have to Act Like States

Sensing the constitutional and societal dangers long before they are now clearly seen, the High Court repeatedly warned that renewed adherence to American federalism is central to preserving the integrity of our union and the individual liberty of Americans.

It is axiomatic that Washington will never restrain its own accumulation of power. Acknowledging this, the Court reiterated that “States are separate and independent sovereigns, sometimes they have to act like it.” The Court beckons that the future of American liberty and union lies predominantly in the hands of the States, as these examples demonstrate:

  • This separation of the two spheres is one of the Constitution’s structural protections of liberty. … a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.’” Printz v. U.S. (1997)
  • The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities. To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals.” Murphy v. NCAA (2018)
  • The “general power of governing, possessed by the States but not by the Federal Government, [is known] as the ‘police power…. Because the police power is controlled by 50 different States instead of one national sovereign, the facets of governing that touch on citizens’ daily lives are normally administered by smaller governments closer to the governed.” NFIB v. Sebelius, (2012)

The Erosion of Structure Erodes Liberty and Union

Despite these clarion calls from the High Court that American liberty and union require “a healthy balance of power between the States and the Federal Government,” this warning is more often honored in the breach, regardless of which party controls the White House or Congress.

Faced with this erosion of governing structure, ALEC established the Center to Restore the Balance of Government to support state leaders in their duty as constitutional officers to preserve and maintain our constitutional union.

Functional Federalism Working Group

This year, the Center is assembling a multi-Task Force Functional Federalism Working Group to examine the proper allocation and balance of governing powers between the National Government and the States essential to secure individual liberty and preserve our American union. An invitation to participate in this working group is being extended to ALEC members and friends, as well as to other state-supporting organizations. These meetings will feature scholarly presentations and deliberation to delineate the appropriate division and balance of governing powers, as well as the powers of state and local governments to maintain them.

Most Important Duty

Surely, there can be no more important duty for state and local officers than to restore and maintain these “most important … structural protections of freedom.”

Supreme Court Justices Scalia, Thomas, Alito and Kennedy explained why failing to preserve our unprecedented constitutional structure is simply unthinkable. “The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril.”

At this crucial time in our nation’s history when confidence in the national government is fractured on all sides, the American people trust their state representatives. They look to you to exercise the power vested in you as “the sure guardians of the people’s liberty” to restore and maintain the structural protections of our governing system so they can peacefully and confidently return to living and prospering “More Like Us.”

If you would like to know more about the Functional Federalism Working Group, contact Center Sr. Director Karla Jones at [email protected].

 

 


In Depth: Federalism

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