Posted on 07/14/2008 7:06:30 AM PDT by Congressman Billybob
(Third of a series of ten)
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.
John Armor John Armor practiced law in the U.S. Supreme Court for 33 years, and is currently the counsel for the American Civil Rights Union, whose website is at: www.theacru.org. He lives now in Highlands, N. Carolina, and is working on a book about Thomas Paine.
John / Billybob
“But this control is failing. “
Let’s go back to having our Senators appointed by the states, however each state shall choose to appoint the individuals.
Then see how Congress got around the Supreme Court and enacted the Gun-Free School Zones Act of 1995, adding that the federal prosecutor must show, as an additional element, the arm in question has some nexus in interstate commerce.
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