As we approach both a national election and the Fourth of July, I am thinking about the competing visions of national identity offered by both the Democratic and Republican parties. So far, both the presumptive candidates, Hillary Clinton and Donald Trump have openly attacked one another, have presented opposite views on national defense, the Affordable Care Act, educational reform, and how to bring jobs from overseas back to the nation. The American voter has been courted with changes to the tax code, free college tuition, and promises to make the nation great again without any real definition of what that would mean. But among all the political discussion and debate, and untouched by either candidate is an issue that predates the Constitution of the United States: will we be a nation under state governance or will all political power be exercised by the national government?
The early argument for state governance
For those that know me, they will tell you that my favorite musical is 1776. There is one scene in that musical I feel is normally lost among the drama, the pageantry, and the songs. It is a small scene between John Adams (William Daniels) and Edward Rutledge (John Cullum) where Rutledge challenges Adams, “who will rule South Carolina? The people of South Carolina, or you, New England…” We know that this debate, although reduced to a small exchange in the musical, was serious enough that it did take up considerable enough time that the first government of the new nation, the Articles of Confederation actually defined the scope of state sovereignty:
Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.
Article 2, Articles of Confederation
What the founding fathers did was a reaction to the governmental system that existed during their lifetime – a strong centralized national government. The national government of the British Empire had a strong executive branch under King George III with a strong-willed legislative body through Parliament. The national government in London had made it clear it saw the colonial legislatures as something less than equal partners. On much the same scale, the court-appointed royal governors were held in much the same regard by those within the British imperial government. With independence of the colonies came the desire to prevent the former colonies from ever becoming secondary to any other national government. This carried into the new nation and what would define how its national government would operate.
Yes, the national government under the Articles of Confederation can be seen as a failure. Shortly after its official ratification in March of 1781, the shortcomings became apparent. While it did preserve state sovereignty, it didn’t allow for the national government to perform the duties of what was expected from a national government. It could not raise an army, it could not raise revenues, it could not pass nationally binding legislation, nor could it exclusively enter into treaties regardless of how essential or beneficial to the new nation. Near financial insolvency, politically castrated, and militarily deficient to defend the nation, the debate over state governance versus national governance would continue to be debated even as the nation headed towards failure.
The argument redefined under the Constitution
When the United States was on the verge of political failure, the call for a convention to correct the deficiencies was answered but in a manner that many objected to. Instead of amending the Articles of Confederation, the result was a redesigning and redefining of the relationship between the state and national government under a political theory called “federalism” where the state and national government would, in the explanation of James Madison, share sovereignty. The national government would be responsible for national defense, foreign affairs, coinage, regulate tariffs and excise taxes for revenue, regulating interstate and international trade, and handling disputes between the member states. The state governments would be responsible for any other area not reserved to the national government by the Constitution. It was understood by many that the size of the national government and its powers had to be increased; it was argued by those that if national government was strengthened, the balance of power would transfer from the states (and the people) to the national government.
The compromise was the creation of the Bill of Rights; the proposed amendments to the Constitution were to be limits placed on the national government. From the beginning, there were those who opposed such amendments out of the fear if even the most basic of rights could be defined by government, then the government could change the definition or view itself as the grantor of those rights. In the end, to secure the necessary requirements for ratification, the Bill of Rights was added. Within that Bill of Rights, the Tenth Amendment was intended to protect the balance between the national and state governments:
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.
Amendment X, Constitution of the United States
State or national governance – the debate continues
Since those early days of the nation, our country has fought a war, court arguments and decisions have been rendered, and politicians of both major parties still continue to make some arguments about federalism and state governance versus national governance. Since the early 20th Century there has been a transfer in governmental power from the states to the national government. In the strictest of historical context, the founding fathers believed the state governments were to be the most relevant in the lives in the citizen. For it was the state where the citizen resided; it was the state where democracy was to be practiced (after all, the new nation was to be a democratic-republic). The vast majority of American citizens would rarely have any interaction with the national government beyond the Post Office or the military. As the nation began to expand and with the introduction of new technology and new political philosophies, the debate between states’ rights and the extent of the reach of national government began to shift.
Within the most recent history of the nation, beginning with the George H. W. Bush administration, the reach of national government began a renewed period of expansion not seen since the Johnson Administration of the 1960s. Since the Bush Administration, each administration has increased national government involvement, often crossing the boundaries that have defined traditional state authority. The national government now has either usurped and displaced state authority or has curtailed state authority in a number of areas that have traditionally been regarded as belonging to the state. Education, highway (non-Interstate) regulation and maintenance, local building projects and permits, health care, law enforcement, and even social services program authority have seen the states surrender their sovereignty over these issues in exchange for federal funds. It is this practice that has increased the reach of national government, eroded the concept of shared sovereignty, and reduced the effectiveness of the state.
During the Obama administration, there has been a continued effort to bring more national control over local education through Common Core and the most recent directive regarding public school bathrooms. The Supreme Court decided to weigh into the marriage arena and in many states, override the democratic process where marriage laws were enacted by the choice of a majority of voters. As this blog is being posted, the state of North Carolina has filed a lawsuit against the United States Department of Justice over its “bathroom bill” that has a bi-partisan support base in both the state’s legislature and among the general population. None of these areas are expressively defined as being under the jurisdiction of the national government by the Constitution, yet the national government has assumed jurisdiction over them.
There have also been increases in the expansion of the reach of the national government through the various federal agencies such as the Environmental Protection Agency, the Food and Drug Administration, and a host of other agencies have expanded their reach through bureaucratically written regulations that have the force of law without any oversight or action by Congress. There’s legal battles across the country as states and individuals are beginning to fight against increased federal land management schemes designed to reduce state control over its own assets. The EPA has expanded its definition of “waterway” to include any drainage ditch that could possibly and eventually direct water into a river or large stream (several states have already filed suit against the EPA for this, including Virginia). The logical question for any American to begin to ask is if the state is actually relevant in the modern American nation.
The political action group, Democratic Socialists of America, is calling for the Senate of the United States to be abolished and unfortunately, this group has a lot of the younger generation – the average traditional college student – convinced they are right. They portray the Senate as being an eighteenth century left-over and anti-democratic in nature. The United States was never meant to be a pure democracy; it was intended to be a democratic-republic in which would not only protect the rights of the minority, but would balance political power between the national and state governments. To abolish the Senate would be end to essentially end the relevance of the state and consolidate governmental power at the national level.
Yes, the DSA is correct; in its current form, the Senate is inefficient but if the Seventeenth Amendment, which allows for the direct election of senators, were repealed and the process for selecting senators went back to the original procedure described in the Constitution:
The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.
Section 3, Article I
The restoration of this would return 1/6th of the national government to direct control and oversight of the states. When the amendment was enacted in the early twentieth century, the progressive movement was able to convince many Americans of the wisdom of direct election of the members of the Senate. Essentially, power was transferred from the state legislature to the political parties. Since its ratification the states lost the ability to provide oversight to the national government and has very little recourse beyond the nation’s court system to address its grievances against national government overreach. It is doubtful the 17th Amendment will ever be repealed, but if we are serious about national government reform, this is one possibility that should be addressed.
State governance has always been an important part of the political process of the United States. It is also something that has greatly suffered since the 20th century. Should the United States and its people continue to demand and protect state governance or should state governance yield completely to national governance? If personal liberty is to be protected,the rights of the state must also be protected. If either are to be protected, Americans must vote into office those who understand the concept of shared sovereignty and a basic understanding of the Constitution.