Federalism and the Tenth Amendment: The Buttress of Our Republic – Guest Essayist: Andrew Langer
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“Federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” – Justice Sandra Day O’Connor in Coleman v. Thompson (1991)
There is a beauty in our structure of governance—a structure as carefully engineered as a Greek temple or medieval cathedral, and likewise meant to stand for centuries. In our federalist system, the branches and levels of our government are separate yet intertwined, both opposing and relying on one another to create a system that is both strong and delicate.
But like those engineered structures of old, whose beauty and durability can be compromised by misunderstanding and neglect, the same holds true for the support beams undergirding our republic. A failure to appreciate their role, a misguided effort to subvert their role, and the whole structure, the whole republic collapses. Most importantly, undo the various institutions of federalism (either through affirmative effort or neglect), and the republic decays and ultimately dies.
The body of the Bill of Rights represents an enumeration of further constraints on federal power, starting with the phrase, “Congress shall make no law…”. Given that the Constitution itself is an accounting of the full measure of the federal government’s power—the entire breadth of that power, with nothing more left to speculation, the Founders wanted to ensure that people understood that there were further constraints within those powers granted—starting with very specific enumerated constraints and ending with two very broad declarations of the power of individuals and other levels of government: the 9th Amendment, which makes it clear that simply because some rights were discussed in the Bill of Rights that this does not mean that other rights exist (rights are innumerable. Governmental power is finite); and the 10th Amendment, which makes the broad, but essential, declaration that all that is not surrendered to the government is retained, and that individual rights are protected by the diffusion of power our federalist system operates under.
The Founders were skeptical of concentrated power—whether that power was concentrated in a central, federal government or concentrated in a particular branch of that government. Concentrated power, as history had taught them (and, for the Founders, we’re talking both classical and proximate history) was apt to be abused—tyrants from Caesar to King George V had taken root because power had been concentrated in some central body.
But as invariably happens, because what is past is prologue and those who fail to learn history are doomed to repeat it, over time these already-precariously balanced institutions become threatened by those who want to see them undone—those who care little for individual rights, but, because of their own parochial interests, wish to see the power of government increased and concentrated.
One of the surest ways to minimize government intrusion into individual rights is to make government bodies as accountable as possible and practicable—and this meant, to the Founders, to leave as much of the day-to-day interaction between people and their government to be at a level closest to the people, with federal power constrained to dealing with issues of national defense and ensuring the free-flow of commerce between the states.
In fact, it was via this Commerce Clause power that the federal government began its expansion into spheres traditionally reserved to states and localities—with the predictably disastrous results. In 1935 and 1936, as the nation was grappling with the Great Depression, the Supreme Court issued two decisions invalidating key elements of President Franklin Delano Roosevelt’s New Deal agenda as being violative of the Commerce Clause. Frustrated with the Supreme Court’s adherence to basic principles of federalism, FDR then, essentially, threatened the Supreme Court with a “court packing” scheme in which he would appoint a new justice to balance any justice over the age of 70.
This would have enlarged the court to 15 members, and acquiescing to the president’s pressure, the court began ruling in favor of the New Deal by using a new interpretation of the Commerce Clause that essentially left the government with limitless power, allowing legislators and government bureaucrats to use the most marginal of “interstate commerce” nexuses to justify the constitutionality of a law: things like a “glancing goose” theory to justify the federal regulations governing local wetlands (the idea being that a goose, flying from state to state, might “glance down” at a wetland and want to land, thus justifying federal control).
The effect is that citizens lose the ability to effectively hold government accountable and assert their rights, since it becomes difficult to “push back” against ever-expanding federal control. Whereas, when a county or state wants to regulate a wetland in someone’s backyard, a property owner can go to a county council or to their state capitol to find a remedy. But if a citizen wants to push back against the US Environmental Protection Agency (or the US Army Corps of Engineers, which also regulates wetlands), it becomes nearly impossible—requiring legions of lawyers with federal expertise, a limitless bank account, and the patience of a saint.
But most-important, instances like this are illustrative of the interest the founders had in limiting federal government power because of the implications to individual rights. In this instance, we’re talking about the right to hold and enjoy private property.
It took nearly sixty years for the Supreme Court to finally find limitations to the federal government’s power under the Commerce Clause, and to re-assert the Tenth Amendment. From 1992 onward, the Supreme Court issued a series of decisions demonstrating the importance of federalism in the protection of individual rights (and the powers of states and local governments). Even the so-called “glancing goose” theory was finally rejected and the federal government’s power to regulate “isolated” wetlands was struck down.
But other threats to federalism remain—and the nation must guard itself against those threats, especially those undertaken in the name of greater “democracy”. We are not a “democracy”—federalism makes that manifest. Yet beyond the expansive interpretation of the Commerce Clause, other efforts have sought to undermine these republican institutions. The ratification of the 17th Amendment, which took power out of the hands of state legislators with regards to the appointment of senators to the United States Senate was an early example.
Done in the name of encouraging popular democracy, the 17th Amendment has had devastating results in terms of accountability. Senators are less accountable. Whereas before, they would have to report, regularly, to elected officials who served at a level closer to their constituents, now these senators are only accountable once every six years when they stand for election.
Despite this undermining of federalism, there are those who want to see this eroded even more! Efforts to change the apportionment of the Senate so that it more-closely resembles the U.S. House of Representatives would completely undo the very protections to individual rights envisioned by having two different houses of Congress in which membership is determined in different ways. The founders did not want the most-populous states to be able to dictate policy to the least-populous states (not without great protections for the citizens of those states).
Worst of all, efforts to undermine the Electoral College would essentially bring the republic to an end as we know it. The Electoral College exists as a testament to these federalist principles – acting as a check against democratic impulses that can turn a civil society into mob rule. The values and interests of rural and agrarian Americans differ greatly from the values and interests of Americans who live in cities. This has been true since before the American founding and it remains true to this day.
This is why the founders created the Electoral College as the best system for electing a President—to balance the interests between these rural and urban Americans and ensure that a President cannot be elected from the most-populated states with a view towards holding the rights of rural Americans to a second-class status.
Whether it is an effort to remove the Electoral College via amending the Constitution or side-stepping the Constitution’s precepts through interstate compact, the end-result is the same: the collapse of our federalist system, and another affront to the protections of the 10th Amendment.
Our founders created a structure of government that is both delicate and complex. But that delicate complexity, like the construction of monuments of old, has a strength that can stand the test of time. We have to guard ourselves against the destruction of that system—whether through willful subversion or ignorant neglect.
Regardless, in the end, the result is the same.
Andrew Langer is President of the Institute for Liberty, and Host of the Andrew Langer Show on WBAL in Baltimore.
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If WE do not guard against the nationalization of the United States, the democrats will have complete control and all will be lost. We MUST continue to educate ourselves, not only of our nation’s founding principles, but also to the tactics the Left use to erode our government. Nothing would please the left more than to be able to institute their destructive policies because GOOD Conservatives have simply thrown in the towel and given up the fight. We CANNOT let that happen!
Unfortunately, I seldom hear, even on Fox News, discussion about the 10th Amendment. And I never hear anyone speak about how the 17th Amendment took power from the states and transferred that power to the people, resulting in the enormous number of federal mandates with which states must now comply or risk losing federal grants. If Senators are accountable to the people, perhaps the term for Senators should be reduced to two years. Better, transfer the power back to the states with an Amendment voiding the 17th.
Thank you again for another stimulating, well written essay.
I have considered the decay of Federalism, which for me was most notable in reduced States rights; but well argued in these initial essays as that and more as a troublesome trend. Thus, I look forward ot sharpening both my understanding and my ability to reason and discuss this issue in this 90 day series.
I do find it challenging to assert that the electoral college in its present state is remotely close to what the Founders envisioned. First, a close reading of the Federal Convention reveals that Founders were not settled in the EC for electing the President. They labored and debated long and hard during that hot summer only to let the Committee on style make the final decision.
Secondly, the EC was originally designed to be a scaled down replicate of the previous conventions that led to the Declaration Independence, the Articles of Confederation, and the Constitution. The EC was to be attended by Electorates who would deliberate over who would make the best Executive, much in the same way the Founders had deliberated through the prior 11 years. This is not surprising since they had seen this process work very well through most perilous times. Surely future Electorates would be equally deliberative.
But we see that was not the case as party and sectional preferences trumped deliberative consideration as soon as President Washington “retired.” The results was swift and numerous amendments were made to the Constitution to fix what was not working as intended. My recollection is no other part of the Constitution has undergone as many or as drastic amending as the election of the Executive. I readily concede that some of these amendments are very good and very positive, such as suffrage extending the right to vote to all citizens.
Thirdly, however is that some of the changes smack of the anti-Federalism discussed herein. The most pernicious is the “all or none” Electoral votes that some Sates have adopted. If extending representation to the senate based on census is detrimental to Federalism, then surely prescribing that all of the electorates of large States accomplishes the same thing in regards to the Executive. It surely does not square up with the Founder’s expectation that each Elector would vote independently. It is one thing for all Electors from the same State voted in for the same candidate. it is quite another to prescribe that all electors vote the same. The Founders did not intend it or they would have prescribed it.
The very writings of the Founders show discontent with the EC as a means to select the Executive.
So while I agree that we want a system that preserve Federalism I am unconvinced that the EC, as practiced today is the Founder’s wise and prescient answer to that concern; especially since it looks and performs nothing like what originally set forth.
In closing kudos to Mr. Langer and CA for provoking [in the good sense] thoughtful consideration of Federalism.