Re-Painting Constitutional Lines on the Field…
On July 17, the Heritage Foundation hosted a most timely conference entitled “Federalism: Giving Power Back to The States.”
As chair of the ALEC Center to Restore the Balance of Government, I was honored to speak at this event alongside such notable participants as White House Chief of Staff Mick Mulvaney; David Bernhardt, Secretary of the Interior; Andrew Wheeler, Administrator of the U.S. Environmental Protection Agency; Russ Vought, Acting Director of the White House’s Office of Management of Budget; Doug Hoelscher, Deputy Assistant to the President & Director of Intergovernmental Affairs; Mark Brnovich, Arizona Attorney General; Aric Nesbitt, Michigan State Senator; and United States Representatives Cathy McMorris Rogers (WA) and Rob Bishop (UT). U.S. Senators Mike Lee (UT) and Ron Johnson (WI) were scheduled to attend but judicial confirmation hearings prevented their appearance.
This lineup underscores just how important the issue of federalism is to the White House and to our nation as a whole. Kudos to the Heritage Foundation and their many capable staff members and fellows who arranged and moderated this conference.
As I considered what I might add, from nearly ten years in the state legislative trenches, to advance a restoration of our structural foundation of federalism, a few thoughts immediately came to mind. (My remarks start at the 32:30 mark).
Federalism Is Central to Liberty
The first was Justice Kennedy’s stark reminder that liberty unleashes the creative genius of Americans and is a direct function of our unprecedented system of American federalism. He warned that when we allow federalism to languish through inattention or inaction “we place liberty at peril.”
“Structural protections–notably, the restraints imposed by federalism and separation of power … tend to be undervalued or even forgotten by our citizens. … the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. 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.” NFIB v. Sebelius (dissenting opinion, 2012, emphasis added).
No Lines on the Field
Second, I recalled speaking on federalism in Des Moines, Iowa in January of 2017. It was the week before our legislative session began. I had been sick and just wanted to get home and rest before our session started.
As we drove to the airport, a freezing rain blanketed everything in a sheet of ice…including the plane and the runway. As minutes turned into more than an hour waiting for the plane and runway to be de-iced, it seemed certain that I would miss my connecting flight and be stuck in Minneapolis.
As the flight eventually took off and neared Minneapolis, I thought there was an outside chance that I could still make my connecting flight home. As I jockeyed to get off the plane as quickly as possible, I saw a giant of a man in a University of Utah football t-shirt just ahead of me. I figured he was going where I was going so I scrambled to catch up to him, running with my roller bag and briefcase, and drafted behind him like a running back following his pulling guard as he cut a swath through the sea of humanity crowding the Minneapolis airport.
We got to our gate just as they were closing the door. The flight attendants let us in and seated us next to each other in the exit row. As we exchanged names, he told me that he was a coach for the University of Utah football team and had played college ball for in-state rival BYU.
When he learned that I served in the Utah Legislature, he asked what sort of things I worked on. I didn’t want to just say “federalism,” so I tried to relate it to what mattered most to him.
“The BYU-U of U football game,” I asked, “is a pretty big deal, right? It’s called the ‘Holy War’, yes?”
“Yes,” he acknowledged.
“So, imagine game day comes and you suit up . The coach gives you his best, most fiery game day speech and you charge out of the locker room and down the tunnel toward the field. The stadium is packed, and the energy from the fans is absolutely electric.”
“Okay,” he conceded.
“You get out to the 50-yard line and face off with the other team. You put your helmet on and buckle your chinstrap, ready to lay it all on the field.”
“At that moment, you look down and discover that there are no lines anywhere to be found on the field…!”
“Imagine what it would be like to line up against the opposing team in the biggest game of the year and there is no line of scrimmage…”
“That would be a disaster!” he blurted out.
“That’s what government is like today,” I replied.
“Our unique and ingenious system of government was designed to be a healthy competition between two teams – national and state governments –each holding the other in check to protect the people’s liberty. However, in recent decades, the roles and responsibilities of the two teams have been overlooked and forgotten to such an extent that there are hardly any lines to be found anywhere on the field today.”
“I’m working to re-paint the lines on the field. This is called federalism,” I explained.
“I get it!” he remarked, “You certainly can’t defend a line you can’t define.”
In the Governing Tug of War, States Have to Pull
I followed this story with the one about our governing Tug of War from my May 2019 post.
In a speech to the New York Ratifying Convention in 1788, Alexander Hamilton, the big government guy of his day, cautioned of the States’ imperative duty to preserve this governing balance:
“This balance between the national and state governments ought to be dwelt on with peculiar attention, as it is of the utmost importance. It forms a double security to the people. If one encroaches on their rights they will find a powerful protection in the other. Indeed, they will both be prevented from overpassing their constitutional limits by a certain rivalship, which will ever subsist between them.”
This “rivalship” means that in order to preserve this essential balance in our governing Tug of War, the States have to pull on the rope. Federal officials, as well-intentioned as they may be, can’t push on the rope. They can’t “give power back to the States.” The States have to pull. They don’t have to pull hard, but they have to pull together, and they have to pull always.
Calls to Action
In order to re-paint the lines on the field, and to help the States exercise their duty to pick up and persistently pull on the governing Tug of War rope, I issued these two calls to action at the Heritage Federalism conference:
- For the President to immediately create a National Federalism Commission and convene a National Federalism Summit for the Administration, the States, and members of Congress to reestablish a clear division of roles and responsibilities in the governing partnership between the national government and the States – i.e. to repaint the governing lines on the field.
- For us to take upon ourselves the responsibility, and hold ourselves to a higher standard of professionalism, in securing the rights of the American people through committing ourselves to a National Continuing Legislator Education Certification. Hairstylists and flights attendants, not to mention doctors, lawyers, teachers and engineers all have continuing education requirements. How much more should we take upon ourselves the responsibility of elevating our knowledge and ability to preserve the delicate and essential governing balance that protects the rights and amplifies the voice of the American people?
If you’re ready to up your federalism game and engage with the Administration and with Congress to re-paint the constitutional lines on the field, send me an email at [email protected] letting me know you are willing and able to work on a plan of the States in preparation for the National Federalism Summit to restore and maintain this governing rivalship that is central to liberty.