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Federalism is an intrinsically American governing principle whose relevance has increased with the nation’s geographical expansion. It sprang from our Founding Fathers’ unwavering commitment to liberty and their sober conviction that without strong safeguards, power would inevitably migrate to the national government and inexorably erode the rights of the governed. With the goal of preserving freedom by preventing the consolidation of control in any one political structure, the Founders came together to draft the U.S. Constitution. Mindful and somewhat humbled by the failure of the Articles of Confederation, they understood that a central authority was necessary to provide for the common defense and general welfare – and most important of all – to protect the liberty for which they had fought so hard. However, they also recognized that giving the federal government unchecked power would likely lead to a tyranny not so very different than the one they had just overthrown.
The Founding Fathers also recognized that government closest to the people being governed was the most just and effective. Compared to the original 13 states, the country has become remarkably vast and diverse lending even greater credence to this ideal. Local authorities understand conditions in their states better than a federal agency that might be located three time zones away. State governments are nimble enough to implement good policies more rapidly than a federal bureaucracy, and it is easier to hold local law and policy makers accountable for poor decisions. As Alexander Hamilton explained in Federalist no. 17, “It is a known fact in human nature that its affections are commonly weak in proportion to the distance or diffusiveness of the object. Upon the same principle that a man is more attached to his family than to his neighborhood, to his neighborhood than to the community at large, the people of each State are apt to feel a stronger bias towards their local governments than towards the government of the Union.”
And whether the Founders foresaw it or not, federalism created a fertile environment for policy innovation to flourish. The states have the freedom to craft solutions to problems unique to their locale without having to petition the federal government for permission to address an issue that might only have resonance in one part of the country. Federalism empowers states to develop policies that, if effective, can be shared to solve common problems. Damaging ideas can be discarded before being widely implemented. More than 130 years after the Founding Fathers drafted the U.S. Constitution, Justice Louis Brandeis in New State Ice Co. v. Liebmann observed that a “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.” The freedom to innovate also serves as a crucial political safety valve for Americans who feel powerless in the face of federal dysfunction or a federal government that they believe fails to address their concerns. Federalism helped shape the nation we have become and continues to exert a strong influence on American society today.
For the Constitutional Framers, success in Philadelphia would require striking just the right balance of power between competing governing entities. Their solution was an ingenious design that gave the federal government the authority that it needed to unite the nation while devising a system of internal and external checks to diffuse power so that the national government would ultimately be subject to the will of the states and the people. Internal checks and balances were incorporated giving the three branches of the federal government the ability to check each other so that none of them could consolidate too much power. Then the Constitutional Framers established that the states would be co-equal and as such could act as an external check on the national government. This external check, referred to by Alexander Hamilton as the “double security” heralded the arrival of the “compound republic.” Their constitutional equality empowered and even compelled the states to rein in a federal government that overstepped its bounds.
America’s Founders envisioned the states as co-equal partners with the federal government and included constitutional provisions devised to undergird the states’ sovereignty and ensure that no state would be rendered powerless due to population or geographical size. Every state is represented in the U.S. Senate by two senators giving each an equal voice irrespective of population or geographical size. Before the adoption of the 17th Amendment which provided for direct election of U.S. Senators, they were selected by state legislatures underscoring the significance of state legislative bodies to the Constitutional Framers. The Founding Fathers also put the states on equal footing in proposing amendments to the newly-drafted Constitution. Either two-thirds of both houses of Congress or applications from two-thirds of the state legislatures is required to propose a constitutional amendment. Ratification authority over proposed amendments devolves to the states. The Constitution enumerates what governing responsibilities fall to the federal government and in which branch of government authority resides. And as if to ensure that there would be no misunderstanding that the states would serve as its partners, not its subjects, the Tenth Amendment explicitly states that “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.” James Madison sums the concept up perfectly in Federalist 45 – “The powers delegated to the Federal Government are few and defined. Those which are to remain in the state governments are numerous and indefinite.”
Almost from the beginning, federalism faced strains which intensified during the 20th and first years of the 21st century as it became associated with restrictions on the very liberties it was created to protect. This led progressives to abandon state sovereignty. During the same period, the United States’ focus turned increasingly global with more policies legitimately decided at the federal level. Further erosion occurred due to a decline in civic literacy resulting in many Americans mistaking federalism for its opposite – concentration of power in the national government – as well as to the states’ failure to heed Founding Father John Dickinson’s warning, “It will be their own faults, if the several states suffer the federal sovereignty to interfere in the things of their respective jurisdictions.” These are the factors that caused a great governing principle to gain a reputation for being a relic of a bygone era. The states started accepting laws, regulations and executive orders without challenging their constitutionality. The reward for the states’ obeisance was federal dollars coopting them in order to solidify their dependence on the federal government. Without protest, the states exchanged their co-equal status with the national government for one of subservience. It happened just as James Madison foresaw when he observed, “There are more instances of abridgement of freedom of the people by gradual and silent encroachment of those in power than by violent and sudden usurpations.”
Federalism is experiencing a renaissance! This rebirth began quietly in the 1980s when then President Ronald Reagan issued Executive Order 12612 to restore the division of governmental responsibilities between national and state governments. The Order was ultimately rescinded by Clinton in the following decade. However, the conviction that federalism might hold the keys to address dysfunction in federal institutions continued to grow in popularity. Americans noticed the sharp contrast between state functionality and federal dysfunction and distrust of Washington, DC reached historically high levels. According to the Pew Research Center, only 18 percent of Americans trust the federal government to do what is right “just about always” (3%) or “most of the time” (15%).
Contributing to federalism’s resurgence is its “rediscovery” by Americans on the Left who view federalism as a tool to advance progressive policies – especially on environmental and immigration issues. State sovereignty is once again being recognized for what it is and always has been – a governing principle that transcends political affiliation and was endowed by the Founders to future Americans as a mechanism to preserve freedom.
Federalism is a founding and defining principle of my organization – the American Legislative Exchange Council (ALEC). ALEC is America’s largest, nonpartisan, voluntary membership organization of state legislators dedicated to the principles of limited government, free markets and federalism, and state lawmaker members of ALEC have been leaders in pushing back against federal encroachment into matters better handled by the states. Several state legislatures have established Commissions on Federalism to evaluate and review any federal law that could potentially violate the state’s sovereignty. ALEC has adopted model policy to create such commissions as well as model policy that encourages the states to unite to evaluate examples of federal overreach. The model policy can be accessed here. However, state lawmakers need education in federalism in order to recognize federal infringement of state sovereignty. To help solve this problem, ALEC has adopted model policy calling for the continuing education for state lawmakers in federalism. Because it is imperative that attorneys who represent separate and independent sovereign states and their subdivisions have a clear understanding of the jurisdiction and authority of the states as well as the fundamental principles of federalism, ALEC has adopted model policy calling for federalism education for public attorneys. These model policies can be accessed here and here. Prioritizing the teaching of constitutional principles, including federalism, in schools would improve America’s civic literacy and engagement. Thomas Jefferson, recognizing the future need to protect the United States’ political heritage, prescribed a general education for all Americans, “to instruct the mass of our citizens in these their rights, interests, and duties, as men and citizens.” ALEC model policy to put Jefferson’s words into action can be accessed here.
When understood and practiced, federalism gives rise to dynamic political activity. Regulatory reform, an excellent example of federalism in action, is entering a critical juncture at the federal and state level. Federalism plays a unique role in regulatory reform especially with technology, financial regulation, and affordable housing issue areas. The emphasis is placed on accountability, problem solving and economic theory to reduce risk and increase freedom rather than compounding risk and imposing regressive effects on families and small businesses. While Executive Order 13771 Reducing Regulation and Controlling Regulatory Costs has reduced the rate of regulatory accumulation, progress is uneven across agencies. Regulatory reform legislation remains stalled in the Senate, and the policy focus in the U.S. House of Representatives is likely to shift to oversight activities to undermine efforts to reduce regulatory complexity with the introduction of legislation that emphasizes additive rulemaking.
There has been a growing trend for states to pursue some form of regulatory reform, and states with a few years of experience of regulatory review are near the end of picking the “low hanging fruit.” Those states are grappling with questions on how to make regulatory fixes permanent and how to improve complex and engrained regulatory programs more effectively.
Canada has much to share with the states on effective regulatory reform which is proceeding rapidly at the provincial level. There is a unique opportunity to inform the eight states and two provinces in the Great Lakes region about the effectiveness of a regulatory reform effort based on the British Columbia model and economic analysis and to demonstrate the benefits for economic development and trade with a regional analysis. If successful, this model can be replicated in other regions.
Although Article V of the U.S. Constitution describes pathways to propose amendments to the U.S. Constitution for both Congress and the states, only Congress has exercised this power. The Founding Fathers included an amendment process for the states anticipating a time when Congress might become the problem rather than a source of solutions to the country’s problems. When two-thirds of state legislatures submit applications to Congress, Congress is compelled to call a convention of states to consider and potentially propose a constitutional amendment. The convention has the same power that Congress does to introduce an amendment, and like a Congressionally-proposed amendment, one that results from a convention of states, would still require ratification by three-fourths of the states before being incorporated into the U.S. Constitution. Current applications address a wide array of topics, including a federal balanced budget amendment, Congressional term limits, campaign finance and regulatory reform, and some applications are open calls for a convention of states without a specific topic to be considered. Although none of the state-driven Article V initiatives have breached the 34-state threshold, some are closing in on this benchmark. Proposing amendments is a potent tool that states can use to rein in federal overreach. More information about the Article V process can be found here.
We are entering an era of renewed appreciation for federalism. National priorities that were once seen as universally held are now characterized by partisan bickering, and while Congress is trapped in an endless loop of gridlock, our nation’s challenges, including our national debt, are quickly becoming existential threats. As distrust in the federal government grows and policies advanced in Washington, DC with little or no input from outside the Beltway fail, more and more Americans are looking to the states for solutions to their most intractable problems. People on both sides of the aisle are acknowledging the states’ potential for policy leadership and innovation, just as our Founding Fathers intended. However, in order to retain the power granted them in the Constitution, the states must steadfastly assert their authority. In a 1791 letter to former Virginia State Senator Archibald Stuart, Thomas Jefferson wrote, “It is important to strengthen the State governments … it must be done by the states themselves, erecting such barriers at the constitutional line as cannot be surmounted either by themselves or by the General Government.” It’s time for states to hold Jefferson’s “constitutional line” – the nation will be better for it.
Lisa B. Nelson is CEO of the American Legislative Exchange Council, the nation’s largest and oldest voluntary membership organization of state legislators focused on limited government, free markets and federalism. Karla Jones directs the Center to Restore the Balance of Government—the ALEC Center on federalism. Learn more about federalism, ALEC and policies that increase freedom at www.ALEC.org.
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