Guest Essayist: Patrick M. Garry

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South Dakota was admitted to the Unites States November 2, 1889 as the fortieth state. In the same year of 1889, the South Dakota State Constitution in use today was adopted.

On March 2, 1861, President Buchanan signed the bill that created the Dakota Territory. Within this territory were included the present states of North and South Dakota, Montana and Wyoming. After creating the Dakota Territory, the federal government paid relatively little attention to it, given the preoccupation with the war. But as soon as there was sufficient population in the territory, the settlers in the Dakota Territory began taking steps to achieve statehood. Starting in 1868, efforts intensified toward the admission of Dakota, either as a single state or two different states.

Even though the Dakota Territory was being settled during the Civil War, South Dakota did not become a state until 1889.  This long delay in the pursuit of statehood stemmed from political conflicts at the national level.  During the 1880s, for instance, the Democratic Congress opposed statehood for South Dakota, which was seen as a strongly Republican-leaning state. The Democratic Congress resisted admitting a state that was certain to send two more Republicans to the United States Senate. Consequently, the congressional debate on the issue of South Dakota statehood rested largely on a partisan basis.

However, the obstacles to statehood for South Dakota largely disappeared when Benjamin Harrison won the presidential election of 1888, beating Grover Cleveland. President Harrison had been a strong supporter of statehood for South Dakota during his time as senator from Indiana. At the same time, the Republican Party won control of Congress, and the national Republican Party platform of 1888 had stated that South Dakota should be immediately admitted as a new state.

The statehood bill was passed in February of 1889 and authorized the state constitutional convention of 1889, which was to be the first constitutional convention in South Dakota legally recognized by Congress.  The resulting constitution was approved by the people at an election held in October. And on November 2, 1889, President Harrison issued his proclamation admitting South Dakota as a state.

Although the 1889 convention produced the Constitution in effect today, it was not the first constitutional convention convened by statehood advocates.  The first constitutional convention for South Dakota took place in 1883, even though that convention was not authorized by Congress.

The 1883 constitution reflected the political concerns of the times.  South Dakotans sought statehood at a time when railroads and corporate conglomerates played powerful roles on both the state and national scene.  Although the railroads greatly contributed to South Dakota’s development and population, they also threatened to corrupt state legal and political processes.

At the 1883 convention, there were concerns that corporations should pay the same rate of taxes as private individuals, should not be allowed to consolidate, and should receive no aid that is not given private parties. The Convention also required the legislature to regulate railroad rates and prohibit unjust rate discrimination. The convention delegates feared that railroads or other large corporations could exercise excessive influence over the legislature.

A second constitutional convention convened on September 8, 1885.  This convention has been called the most important ever held in South Dakota, insofar as the constitution produced by that convention, with a few minor changes, became the constitution authorized by Congress and ratified by the voters in 1889.

The South Dakota statehood bill passed by Congress in February of 1889 necessitated a third constitutional convention so as to make the 1885 constitution conform to federal law.  By the time the 1889 convention occurred, the Farmers’ Alliance of Dakota Territory was playing a major political role. With declining prices for farm crops and higher production costs, many farmers had fallen deep in debt. For political relief, they turned to the Alliance, which played an influential role in securing the Initiative and Referendum provisions in the Constitution.

Perhaps the most unique feature of the South Dakota Constitution was its provisions on the Initiative and Referendum. South Dakota was the first state in the Union to adopt the Initiative and Referendum, which was later adopted by dozens of other states.

Whereas the Initiative allows the public to bypass the legislature and directly pass new laws in a general election, the Referendum allows the public to repeal a law previously enacted by the legislature. Initiative and Referendum was one of the hallmark causes of the Populist movement of the late nineteenth century.

The Populist movement promoted the Initiative and Referendum as an essential means of achieving economic reforms aimed at controlling the political power of railroads and eastern banks. South Dakota was the first state in the nation to have an active Populist Party, which in 1892 made the Initiative and Referendum a central part of its platform.

The campaign to bring Initiative and Referendum to the Dakota Territory was fueled by the economic events of the time, with Dakota farmers attributing declining commodity prices to the manipulations of railroads and eastern banks, and believing that rural interests would be better able to control those outside entities through the Initiative and Referendum process.

Patrick Garry is professor of law at the University of South Dakota and is the author of Limited Government and the Bill of Rights and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor.

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The Constitution establishes a dual governmental structure consisting of state and national governments.  Although its purpose was to create a strong national government, the Constitution also sought to preserve the independent integrity of the states.  This bifurcated system of power was codified in the Tenth Amendment, which divides sovereign power between those delegated to the federal government and those reserved to the states.  The Tenth Amendment prohibits the national government from exercising undelegated powers that will infringe on the lawmaking autonomy of the states.

The framers believed that by protecting the pre-existing structure of state governments the Constitution could safely grant power to the national government, since the former would independently monitor the latter’s exercise of power.  Similar to the way in which the colonial governments had mobilized opposition to oppressive acts by Parliament, the state governments would serve as vigilant watchdogs against abuses committed by the federal government.

The doctrine of federalism refers to the sharing of power between two different levels of government, each representing the same people.  The founding generation was so committed to federalism that even a nationalist like Justice Marshall acknowledged in McCulloch v. Maryland that the national government was “one of enumerated powers” and could “exercise only the powers granted to it.”  Indeed, federalism concerns were so important to the Founders that nearly all the arguments opposing the new constitution involved the threat to state sovereignty.

Although there is no single ‘federalism’ clause in the Constitution, the Tenth and Eleventh Amendments are often the focus of the Court’s federalism decisions.  In the constitutional scheme, federalism provides an avenue for local self-determination, in addition to a vertical check on government oppression, with the states serving as a localized control on the centralized national government.  Under the framers’ view of federalism, as expressed in the Tenth Amendment, the national government would exert supreme authority only within the limited scope of its enumerated powers; the states meanwhile would exercise the remainder of sovereign authority, subject to the restraint of interstate competition from other states.

Because the framers took for granted the sovereign powers of the states, the Constitution is somewhat one-sided in its references to governmental authority.  It explicitly lists the powers of the federal government; but to the extent it defines state powers, it does so primarily through negative implication, by setting out the limited constraints on those powers.  Furthermore, the Tenth Amendment, though not granting power to any governmental entity, recognizes that any and all powers not granted to the federal government have been reserved to the states.

During the nineteenth century and throughout the early twentieth, the Court adhered to a federalist vision, under which it often used the Tenth Amendment to limit federal power.  But after 1937, the Court switched positions, adopting a nationalist model.  In the wake of the New Deal, the expansion of federal powers increasingly eroded the Tenth Amendment protections, and the Court from 1937 to roughly the 1990s largely ignored the Tenth Amendment.  During that time, only one federal law was held to violate the Tenth Amendment.

The year 1937 is seen as a transformational year in the Court’s approach to the exertion of national power; in that year, President Roosevelt sent to Congress a bill that would authorize him to appoint one new Supreme Court justice for each sitting justice who had served ten years or more and had not retired within six months after his seventieth birthday.  Under this ‘court-packing’ plan, the number of Supreme Court justices was to be raised to fifteen.  Whether the Court was influenced by this bill and its likely passage cannot be known for sure; but shortly thereafter, the Court began upholding New Deal legislation of the kind that had previously been struck down.  Initiating a new era of constitutional interpretation, the Supreme Court endorsed a permanent enlargement in the scope of federal power, at the expense of the states.  Under this relaxed posture toward congressional power, the Court would later uphold a wide range of statutes over the next fifty years, including purely local incidents of loan sharking.

After almost sixty years of dormancy, federalism made a constitutional comeback in the 1990s.  In its federalism revolution, the Rehnquist Court reinvigorated the doctrine of federalism and restored power to the states.  Under the Court, there occurred a slow but steady trend towards curbing the power of the federal government and using the Tenth Amendment to safeguard the states from overreaching by the federal government.

This revival of federalism, one of the country’s most basic constitutional arrangements, became the hallmark identity and achievement of the Rehnquist Court.  And this federalism revolution, which fostered a new respect for the sovereignty of the states, also revived the Tenth Amendment as a limit on congressional power.

The Tenth Amendment continues to be a constitutional force and was instrumental in National Federation of Independent Business v. Sebelius (2012), the Supreme Court’s noteworthy decision on the Affordable Care Act preserving state autonomy.

Patrick Garry is professor of law at the University of South Dakota and is the author of Limited Government and the Bill of Rights and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor.

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The progressive administrative state now seems entrenched in contemporary American political governance.  While progressivism first arose on the political scene in the late nineteenth century, and the administrative state came into being with the sudden increase in centralized government during the 1930s, the two came together only later in the twentieth century to form what is now known as the progressive administrative state.

The term administrative state refers to the reach and power of the vast web of administrative agencies that populate the executive branch of the U.S. government.  Administrative agencies, directed by the executive branch and run by unelected bureaucrats, possess the power to issue legally binding rules and adjudicatory orders.  The heads of agencies may be appointed by the President, and through these heads the agency may be influenced by the President or by Congress, but otherwise the agencies have no elected officials and sometimes little political accountability.  The rules issued by the wide array of federal executive agencies far outnumber the laws democratically enacted by Congress.

The term progressive refers to a political philosophy that favors an ever larger federal government that will assume ever more authority over social and individual life.  Progressives believe that modern life is so complex that it necessitates a pervasive central government run by elites who can direct society with enlightened expertise.  Progressivism mistrusts traditional cultural values and non-governmental social institutions, such as religion and local communities and civic voluntary organization, and believes that the private sector is the source of injustice.  Thus, a strong central government is needed as an antidote or override to those other institutions.

Since the 1960s, progressivism has also referred to a set of substantive ideological beliefs characterizing a leftist political agenda.  Thus, the progressive administrative state has used the power of big government to push progressive political goals.

The progressive administrative state has its historical roots in the New Deal agenda of the 1930s.  Progressives believed that only an unrestrained federal executive branch could remedy all the effects of the Great Depression, as well as engineer society so that such a calamity would never again occur.  The progressive mindset saw limited government, the private-sector economy, and the complex web of social and cultural institutions that characterized America since its colonial beginnings as means of oppression.  To progressives, individual liberty gave way to the power of big government to engineer society for individuals who do not have the expertise to adequately govern themselves.  Government freedom trumped the freedom of the individual.

The New Deal agenda, powered by progressive ideas, brought about a dramatic expansion of the federal government.  This expansion occurred through an increase in the size and reach of the administrative state, accompanied by the birth of many new federal agencies.  But underlying all this expansion was Congress, since only through congressional laws creating, empowering and funding administrative agencies could such an expansion occur.  In rulings that have endured to the present, the New Deal era Supreme Court held that Congress could delegate unlimited power to the administrative state.

Following the New Deal, the administrative state witnessed another significant expansion during the 1960s and 1970s, with the Great Society programs being administered by new and enlarged agencies.  During one of the most liberal periods in American political history, Congress enabled the federal executive branch, through its administrative agencies, to pursue a progressive agenda that steadily enlarged the sphere of the national government, while shrinking the social space left to all other non-governmental institutions.  A somewhat similar expansion occurred decades later, during the presidency of Barack Obama.

Although Congress plays an essential role in fueling the administrative state, primarily through its funding of the executive branch, for the most part the personnel and operations of the progressive administrative state have remained insulated from Congressional oversight.  This is shown by the fact that even when Congress is controlled by a party populated by members who advocate a less expansive, more accountable federal bureaucracy, Congress has been unable to decrease the size or reach of the administrative state.  The administrative state has become so intertwined in national life, so involved in so many aspects of social life, that any attempted cutback runs the risk of shutting down the government altogether.

Various scandals and controversies in recent years have shown how politically-biased the progressive administrative state has become.  The Internal Revenue Service, for instance, used its vast power to target conservative organizations that might be opposed to the progressive administrative state.  The Consumer Financial Protection Board’s acting head refused to recognize or yield to the agency head appointed by President Trump.  The Veterans Administration actively covered up its failures to provide timely and adequate care to veterans, all the while doling out large pay increases to agency officials.

The progressive administrative state has undermined vital non-governmental social and cultural institutions.  The Great Society programs of the 1960s and 1970s, for instance, eroded the family and neighborhood.  Federal land and environmental agencies have eroded the power of local government.  And more recently, the agencies implementing the Affordable Care Act directly attacked religion by forcing religious organizations to act against long-held beliefs.  But as all these different aspects of society are undermined, the progressive administrative state grows ever more powerful and becomes the only institution on which individuals can rely for support.

Patrick Garry is professor of law at the University of South Dakota and is the author of Limited Government and the Bill of Rights and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor.

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Following ratification of the U.S. Constitution, political philosophers described the federalism inherent in the document as America’s hallmark contribution to the eighteenth century science of political governance.

Defined as a system of dual sovereignty, federalism envisions a constitutional order in which national and state governments each possess their own sphere of autonomy and authority.  Whereas the concept of separation of powers operates on a horizontal level, ensuring the autonomy of the different branches (legislative, executive and judicial) within any one level of government (state or national), federalism operates vertically, ensuring the autonomy of those different levels.  Both federalism and separation of powers act as a coordinated system of checks and balances.  Separation of powers checks the various branches, while federalism checks the different levels of government.  Under federalism, autonomous states with their own sphere of power can help prevent a national government from abusing its power.

American federalism was not so much a deliberate political theory as it was a development of history.  Throughout the colonial period, federalism evolved out of necessity.  Because of the great distance between London and the American colonies, local government arose to fill the void.  While the British parliament provided centralizing governance, local and colonial governments in America provided the day-to-day governance.  This scheme not only allowed the colonists to address their own local concerns, it supplied a political experience and structure that would be invaluable once independence from England was declared.  Consequently, when America designed its own constitutional structure, federalism naturally formed a vital foundation of that structure, ensuring the dual sovereignty of state and national governments.

Although there is no specific federalism provision in the U.S. Constitution, just as there is no specific separation of powers provision, federalism pervades the constitutional structure, which recognizes the autonomy of the states while also limiting the ability of the federal government to infringe on that autonomy.  The closest to a specific federalism provision in the U.S. Constitution is the Tenth Amendment, which states that all powers not specifically granted to the federal government are reserved to the states.

The U.S. Senate, prior to the Seventeenth Amendment providing for popular election of senators, once reflected federalism concerns.  Under the original Constitution, the House of Representatives was directly elected by the voters, but the Senate was chosen by the state legislatures.  This system gave states a greater voice in the makeup of the federal government.  It also created a sharper distinction and hence balancing function between the state-chosen Senate and the popularly-elected House.

Aside from its historical basis in the American experience, federalism also served several important values.  Federalism provides a check on the abuse of national power.  It also supports the diversity of a sprawling nation.  Diverse state and local populations can shape local policy to their particular interests, whereas the federal government can only enact a one-size-fits-all policy for the entire nation.

Federalism enhances political accountability and trust.  The smaller the governmental unit, the closer it is to the electorate and the more accountable it is.  This higher degree of accountability in turn builds a higher level of trust in government.  And finally, federalism creates a more flexible system of political governance, since smaller government units are more able to experiment in their policies.

From its colonial beginnings until the early twentieth century, the American political system rested on a strong belief in federalism.  But this abruptly changed in the 1930s with Franklin Roosevelt’s New Deal agenda, which greatly boosted national power at the expense of the states.  Congress acquiesced in this expansion of the national executive branch, as did the Supreme Court, which essentially abandoned one hundred and fifty years of constitutional jurisprudence in allowing such an expansion.

For nearly a half-century after this New Deal constitutional revolution, the Court continued to disregard the federalism mandates of the Constitution.  Not until the mid-1990s did the Court reconnect with federalism.  Dubbed by the media as “the federalism revolution,” the Court’s revival of constitutional federalism coincided with President Bill Clinton’s assertion that “the era of big government is over.”  Nonetheless, the Court’s “federalism revolution” attracted intense opposition from the advocates of an all-powerful central government.  These advocates opposed federalism because of the potential limits it places on the unrestrained growth of the national government.

In U.S. v. Lopez, the Court upheld federalism by ruling that Congress could not invade areas traditionally controlled by state and local governments.  The Court struck down a federal law prohibiting guns within a certain distance of a school, ruling that schools were historically state and local concerns.  This decision contrasted with the New Deal-era decision in Wickard v. Filburn, where the Court ignored all distinctions between local and national.  In Wickard, the Court held that a farmer’s growing of wheat on his own land for his own use constituted an act of interstate commerce legitimately regulated by Congress.

Federalism not only limits the reach of the national government, it also allocates the use of legislative power among the different levels of government.  Legislative power is shared through a system of dual sovereignty between state and national governments, and Congress cannot use its power to threaten the autonomy of the other levels of government.

Patrick Garry is professor of law at the University of South Dakota and is the author of Limited Government and the Bill of Rights and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor.

 

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The Bill of Rights comprises the first ten amendment to the U.S. Constitution.  These amendments — containing provisions addressing such matters as freedom of speech and religion, and freedoms from search and seizure and compelled self-incrimination – are often seen as concerned with individual liberties and hence reflecting a different focus than that of the U.S. Constitution, which primarily addresses government structure and powers.  Under this view, the Constitution and the Bill of Rights are seen as separate documents with separate aims.  However, both the Constitution and the Bill of Rights focus on limiting the power of the federal government, although in somewhat different ways.

The debate over ratification of the U.S. Constitution occurred primarily between two groups, known as the Federalists and the Antifederalists.  The former supported passage of the Constitution, with its creation of a strong federal government, while the latter opposed the Constitution, on the grounds that it gave too much power to a potentially abusive central government.  To secure passage of the Constitution, and to address the concerns of the Antifederalists, the Federalists promised that a Bill of Rights would be adopted once the Constitution was ratified.  Thus, the Bill of Rights came into existence through a compromise reached between the Federalists and Antifederalists over the issue of constitutional limits on federal power.

The limitations on government power imposed by the Bill of Rights differ from the limits imposed by the original Constitution.  Provisions on freedom of speech and religion, for instance, as contained in the First Amendment, place substantive restraints on the federal government.  These provisions restrict the federal government from acting in certain substantive areas – e.g., individual speech and religious exercise.  On the other hand, the limitations contained in the original Constitution tended not to deal with substantive areas or issues, but instead created structural limitations that restricted the exercise of government power in general.

Structural limits on government power consisted of the checks and balances imposed by the Constitution’s separation of powers, in which each branch of government could check the power exercised by the other branches, preventing those branches from overstepping their bounds.  Federalism also amounted to a structural limitation, since it allowed the various levels of government – e.g., state, local and federal – to serve as checks and balances on the other levels.

The Bill of Rights provided substantive limits that existed in addition to the structural limits provided in the original Constitution.  For instance, even if the federal government possessed the power to act in a certain way, it could not, pursuant to the First Amendment, use that power to infringe on the freedom of speech or religious exercise.  Consequently, as demanded by the Antifederalists, the Bill of Rights provided yet another level of control and restraint on the use of federal government power under the U.S. Constitution.

Although the Antifederalist concern about limiting the power of the federal government provided the initial impetus for the Bill of Rights, the Bill does more than simply provide a restraint on government action.  It seeks to preserve liberty by protecting particular areas traditionally considered essential to individual freedom and dignity.

In preserving these areas of individual freedom and autonomy, the Bill of Rights also helps to strengthen the democratic fabric of the American political system.  It does so by maintaining the foundations of a democratic society, which in turn sustains a democratic political order.  Individuals can hardly participate in the political process if they do not possess the freedom to speak out on public matters and to hear the viewpoints of others who possess a similar freedom.  Likewise, a political system can hardly be healthy and vibrant if the society underlying it does not reflect the full concerns and values of the individuals living in it.  A society in which individuals are unable to exercise their religious beliefs, for instance, cannot be a free and vibrant society that will produce a healthy democratic governance.

By restricting government’s power to encroach on various areas of liberty, the Bill of Rights attempts to preserve the freedom of individuals to shape and influence the democratic society to which they belong, which in turn shapes and influences the political culture of society, which in turn shapes and influences the actions of the government and the content of the law.  Thus, through the operation of the Bill of Rights, citizens possess greater opportunity to exercise the sovereign and democratic powers envisioned by the U.S. Constitution.

Patrick M. Garry is Professor of Law at the University of South Dakota.
http://patrickgarry.com

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The Articles of Confederation provided America’s first form of government structure, in effect during the years immediately following independence from Britain and ending with the adoption of the U.S. Constitution in 1789.  The Articles created a very weak national governing structure, which resembled more of a loose confederation of the different states than a single, unified sovereign entity.

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