Most world governments are unitary;
all powers are exercised from the center. By definition that means
dictatorships, but it also applies to most democracies. Only a few
of the world’s modern governments have states, provinces, or cantons with
powers of their own which the national / federal government cannot claim.
In the United States, the states came
first. They, in turn created the federal government. This is
not just a theoretical subject, of no real world consequence. To
the contrary, the separate powers in the hands of the states are one of
the reasons why the U.S. Constitution has survived as long as it has.
Because the Constitution required ratification
by nine of the thirteen states to go into effect, its design could not
directly threaten the state governments. The framers of the Constitution
sought to assure the states about the new federal government. James
Madison wrote in ''The Federalist, No. 45'':
"The powers delegated by the proposed
Constitution to the federal government, are few and defined. Those which
are to remain in the State governments are numerous and indefinite.
The former will be exercised principally on external objects, as war, peace,
negotiation, and foreign commerce.... The powers reserved to the several
States will extend to all the objects which, in the ordinary course of
affairs, concern the lives, liberties, and properties of the people...."
Just reading those words and considering
this week’s news stories, it’s clear the federal government is far beyond
those restraints.
Article I, Section 8, of the Constitution
grants these powers to Congress: Tax collection of taxes, borrowing money,
regulating international and interstate commerce, coining money, establishing
post offices, declaring war, supporting the military, and having exclusive
control over the capitol city. These are obviously concerns which
need be controlled at the national level.
Immediately following in Section 9 are
powers prohibited to Congress. These include no bills of attainder or ex
post facto laws, no money to be spent without appropriations, and no granting
of titles of nobility.
Madison argues that both in subjects
of law and administrative officials, the states will always be larger and
more complex than those of the federal government. Elsewhere, Madison
and his co-authors, John Jay and Alexander Hamilton, argue that the federal
government would not be concerned with such subjects as criminal law and
domestic relations law (family law, divorce, child custody, etc.).
Especially in laws passed during the
Great Depression, the federal government has become active in subjects
that formerly belonged to the state governments. The first question
is, why does that really matter? Isn't a good idea for a new law
still a good idea, regardless of what government raises it?
Thomas Jefferson’s philosophy of government
was that decisions should be made at the level of government, closest to
the people who had to live with that decision. That meant local government
first, state government next, and federal level as the last alternative.
When the federal government seizes powers that don't belong to it, this
principle is violated.
Justice Brandeis wrote in a Supreme
Court decision that the states are "legislative laboratories." Each
reaches its own decisions on any subject. State laws which prove
successful can be copied by other states. Those which fail, serve
as a caution to other states not to follow that path.
On the other hand, when the federal
government claims the same subject, if a law is passed that doesn't work,
there is no clear comparison to show the failure of the law. Instead
of being in only one or two states, being exposed, and being abandoned,
the mistaken law is nationwide and (often) permanent.
The concept of a federal government
with limited powers, unlike Monty Python's parrot, is not entirely dead.
Occasionally the Supreme Court will strike a federal law which clearly
invades the province of the states. (See U.S. v. Lopez, 1995, which
concerned the limits of the commerce clause.) More often, Congress
defines its own powers broadly, the president signs the bill, and the Supreme
Court, to its discredit, gives its stamp of approval. (See McConnell
v. FEC, 2003, on the First Amendment and campaign finance "reform.")
The framers warned that the natural
tendency government to accumulate power would succeed, whenever two branches
of government fail to obey their constitutional restraints. When
all three fail, the usurpation of power by the federal government is guaranteed.
"Separation of powers" was intended as a control system against violation
of the Constitution. But this control is failing. |