by Rob Natelson
Effectively defending American federalism requires us to remember that federalism was not created by the states â€“ nor was it created for state benefit.
Federalism was fashioned by the American people â€“ for the benefit of individuals and of the people as a whole.Â Justice Sandra Day Oâ€™Connor, possibly the most eminent defender of the Tenth Amendment to sit on the modern Supreme Court, put it this way:
The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities, or even for the benefit of the public officials governing the States. To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals. State sovereignty is not just an end in itself: â€œRather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.â€
People who reduce federalism to a matter of â€œstateâ€™s rights,â€ or who continue to argue for the long-discredited theory that our American union is merely a â€œcompactâ€ among states play into the hands of the centralizers.
The centralizers easily can point out that these â€œstates-rightsâ€ positions are not only historically and legally inaccurate â€“ but that they represent the same line once used to support slavery and segregation.
Thatâ€™s why we must promote federalism for what it really is â€“ a system that benefits people, and their lives and liberties.Â Here are some points to remember:
- The states did not, as some Tenth Amendment advocates would have it, create the federal government.Â The people did.Â Although the ratifying conventions met in individual states, the delegates were elected directly by the people for the sole purpose of judging the Constitution.Â State governments were deliberately bypassed.
- The Constitution was not primarily an interstate compact.Â That was the system of the old Confederation, which the Founders left behind.
- The people bestowed certain limited powers on the federal government.Â The remainder were retained by local state governments or by the people, according to the constitution of each state.Â As leading Founders remarked, it was like having one agent to do your legal work and another agent to run your business, while keeping the rest yourself.
- As Justice Oâ€™Connor pointed out, the major reason for dividing power this way was to create checks and balances and protect liberty.
- Another reason was efficiency: Most of the Founders recognized that, as to most issues, local government is more efficient than centralized government.
- It is true, of course, that federalism can cause inefficiencies â€“ no system in this world is perfect.Â There are some national or interstate issues that the Constitution does not give the federal government power to deal with.Â But if we want government to handle one of those problems, the answer is an interstate compact or a constitutional amendment.Â The answer is never to disregard the constitutional balance. Thatâ€™s a â€œcureâ€ worse than the disease…
- Federalism lets people govern themselves better.Â And it helps protect people from special interests.Â For the average hard-working American, a trip to the state capital to make his views known is far easier than a trip to Washington, D.C.Â Â Navigating the state bureaucracy is a lot easier than navigating the federal bureaucracy.Â Thus, the Tenth Amendment is not so much about â€œstates’ rightsâ€ as it is about this individual right to be governed locally.
- Because federalism was established by the people to preserve liberty and not by the states for state benefit, state politicians cannot waive it.Â The current practice by which state politicians purport to yield citizens’ Tenth Amendment rights in exchange for federal cash is contrary to the whole spirit of the Constitution.
So letâ€™s get the Tenth Amendment arguments right.Â Doing so greatly increases our chances of ultimate victory!
Rob Natelson is Professor of Law and David Mason scholar at the University of Montana, where he teaches constitutional law and constitutional history.Â He is currently seeking a publisher for his latest book, The Original Constitution.