Most Republicans have long been concerned about the concentration of power at the federal level and the inability of states to act as a check on federal regulations and growth of federal programs. Republicans for decades have called for a better balance in the federal system.
Today, with Republicans in charge of most offices and levels of government, the issue of federalism is receiving renewed prominence, with many individuals and organizations pursuing initiatives to restore a proper balance between federal-state authority.
Many states have passed resolutions supporting a convention to amend the Constitution to achieve a better federal-state balance, as outlined under Article V.
Republicans hold three-fifths of the nation’s governors, two-thirds of legislatures, and now control the U.S. House, Senate, and the presidency. Now would seem like an ideal time to address the imbalance in the federal system — especially because many Democrats are now concerned about federal actions.
I have followed the federalism issue for many decades. Following are principles and guidelines I have developed that should be part of federalism discussions:
Balanced federalism should not be a Republican issue or a Democratic issue. It’s not a conservative issue or a liberal issue. It has to do with balance in the federal system. It is about states having a co-equal place in the federal system with structural tools to push back against the federal government when a consensus among states exists to do so. While conservatives have been most vocal about federalism, today liberals and Democrats are concerned that the federal government will interfere with state marijuana laws and sanctuary cities, among other things.
The federalism discussion should be focused at the procedural, structural level, rather than on specific, current issues. No one is smart enough to sort out exactly the roles of the federal and state governments. No one knows precisely just where the lines should be drawn. Once an improved balance exists, through structural reform, then the playing field will be level and push and pull will occur on specific issues. Once states will have a stronger structural voice in the federal system, a natural balance will be restored.
The fundamental problem with federalism isn’t that the federal government is aggressive in using its power. That’s the natural thing for any branch or level of government to do. Madison wrote that in federal-state relations, “ambition will counteract ambition” in the give and take of public policy development. The truly fundamental problem with federalism is that states have no tools with which to push back. Every tool granted to states by the Founders has been lost. Thus, it’s not a fair fight. The states are left with no protection. Rather than engaging in peer-to-peer negotiations, states are in a master-servant relationship with the federal government.
Tools states once had to compete in the federal system have been lost over many decades in court decisions that emasculated the 10th Amendment, and through the 17th Amendment eliminating the responsibility of legislatures to select U.S. senators. Obviously, no one will seriously propose that the direct election of senators be rescinded, but losing that tool was an enormous blow to the power of states in the federal system.
Those tools need to be replaced with new tools giving states a larger role in the federal system. Two suggestions that have been the subject of a great deal of scholarly study are: 1. Making it practical for states to propose constitutional amendments (as the Founders intended); and 2. Giving a supermajority of states the ability to overturn a federal statute or regulation, or require Congress to reconsider a statute.
If states had these tools, nothing would change overnight. But, over time, states would reassert themselves as significant players in the federal system.
It is fair to point out that at times in history states have not always responded as they should have to serious societal needs, so the federal government stepped in. But times and society have changed. State and local governments have become modernized, professionalized and competent. They are ready to rise to the challenges of the Knowledge Age.
Balanced federalism is needed not for partisan or ideological reasons, but because it is the best governance model in the Knowledge Age. States today can operate like intelligent, networked PCs on the Internet, while the federal government operates like an old-fashioned mainframe computer. States can collaborate, act quickly, and learn “best practices,” resulting in an upward spiral in competency, improved management and delivery of services. With freedom to innovate, we will see breakthroughs in many areas of government. Such innovation, creativity and energy will never be spawned by the top-down, mainframe approach of Washington.
State legislators need to understand, need to be empowered with the knowledge, that they are uniquely positioned to restore balance in the federal system. They are constitutional officers in the federal system, with the power to initiate amendment conventions and ratify proposed amendments. Other than Congress (which will never act to empower states), state legislators are the only ones with constitutional status to act. Governors can’t do it. Local leaders can’t do it. Only state legislators can do it.
The time has come for state legislative leaders to put together a plan to restore a proper balance in the federal system.