The Way of Federalism

The framers sought to limit the power of the central government and thus “secure the Blessings of Liberty” both by creating three branches (separation of powers with checks and balances) and by retaining a substantial realm for each state to govern its citizens (federalism). The framers had lived through the Articles of Confederation and knew firsthand the problems of combining a feeble central government with all but autonomous states. Yet there was no sentiment in 1787 for moving to the opposite extreme and establishing a unitary form of government with the states relegated to mere administrative regions of an all powerful national government. On the contrary, federalism was assumed by the framers, the question being the degree of power to grant to the central government. Most of the framers assumed (at least initially) that the central government had no authority except as granted and enumerated in the Constitution.

The debates during the ratification process revealed that on various matters many activists and opinion leaders of the day did not share the framers’ assumption and wanted certain matters explicitly stated (these leaders included a few who were at the Constitutional Convention and many, such as Thomas Jefferson, who were not). Thus the Bill of Rights, including the Tenth Amendment, was added to the Constitution in 1791. The Tenth Amendment 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.”

Certain issues must be decided by the central government. Among these are those pertaining to foreign affairs, national security, war and peace, the national debt, and federal income tax rates. As these are properly the province of the national government, so are they properly matters of national debate.

But, with eager participation by the media, the national debate landscape has become cluttered with matters that are properly the province of state governments and their respective citizenries. Issues which cannot constitutionally and should not culturally be decided by the federal government include:  legalization of marijuana and/or other drugs, the death penalty, gay marriage, abortion, and legalization of prostitution.

If the citizens of state X prefer full legalization of marijuana, let them have it within their borders. If the citizens of state Y want to outlaw marijuana completely and punish any violation, let them have their way. If state Z takes a middle ground approach and decriminalizes marijuana use, so be it. In any case there is no need for a national debate on it because the citizens of each state are free to make their own decisions. The principle of federalism applies as well to gay marriage and other state issues which have, with full egging on by the media, divided us unnecessarily at the national level.

Associate Justice Brandeis made a valid point in his famous dissenting opinion:  “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” (New State Ice Co. v. Liebmann (1932))  If the fifty states are left free to make their own laws on these matters, there will emerge the variety that befits a large and diverse country. A few states will be at one extreme, a few at the other. Many states will come out somewhere in the middle with numerous (and likely innovative) variations.

For example, if Chris, a citizen of state X, strongly supports gay marriage and state X does not recognize the legitimacy of gay marriage, then Chris has three options. Chris can simply accept the status quo as part of the price for living in state X; or Chris can work within state X to have the law changed; or Chris can move to state Y or any state that recognizes gay marriage. And so forth with all these issues. Let there be diversity as many flowers bloom in the experimental laboratory.

By restricting the national government, and thus national debate, to matters properly within its domain, and rendering unto the states what is the states’, the tone of national debates should move up at least a bit on the civility scale. Then also the way would be open for greater focus and more in-depth discussions on the matters that truly need to be decided at the national level.