Sunday, October 30, 2005


Do you think about federalism much? Or do you just think of the federal government: the big, bloated sow swallowing so much of every paycheck, rolling in its own filth, and . . . well, I'm no fan of the income tax, but hey, the federal government takes care of us, right? They built the interstate system, they provide for the common defense, they address diplomacy. And the Constitution designates specific duties to the federal government. Article I, Section 8 provides quite a list. Here's a sampling:

The Congress shall have the Power To lay and collect Taxes, . . . to pay the Debts and provide for the common Defence and general Welfare of the United States; . . .
To borrow Money on credit of the United States;
To regulate Commerce with foreign Nations, . . .
To coin Money . . .
To establish Post Offices and post Roads;
To declare War, . . .
To provide and maintain a Navy; . . .

But what about providing a free public education? Or laws against murder, rape, and robbery? What about your fundamental right to sue all doctors and rich people? But I know you're way ahead of me. All that stuff is left to the states. These and so much of the rest of life were placed by the Founders in that large group of governmental powers known as the Reserved Powers.

Like all rights spelled out in the first ten amendments (the Bill of Rights), this check on federal power was understood from the text of the Constitution. That is, some founders argued no Bill of Rights was necessary because everything in those ten statements was clearly the intent of the Constitution anyway. In other words, everyone present knew that if it was not written down as a power specifically designated to the federal government, then the federal government had no such power. But the Bill of Rights nevertheless was ratified and appended to the Constitution in 1791. And the right of the States to govern themselves was spelled out in the tenth Amendment.

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.

Today the tenth amendment is the foundation, the beginning of federalism, federalism being the idea that ours is a nation of free and independent states, united for various federal purposes, but otherwise distinct and free to govern ourselves as each state sees fit.

And is that how we see it? Is that how most Americans see themselves or their states? I don't have poll numbers, but I'd bet not. Today our conception of America is something much more homogenous than that, as if we were one big family. But still, the name United States is plural, you know? We are not exactly one and have never claimed to be. One of few Latin phrases I can translate:

E Pluribus Unum: Out of Many, One.

We are one, but we are many. Yet aside from the growing (and unhealthy) balkanization of our campuses and culture (black students for peace, hispanics for success, Chinese Student Union, Native American Club, Vietnamese Student Center, African Studies, Womens' Studies, Chicano Studies, ad infinitum), most of us see America as one big melting pot, and though some have said "all politics is local" most would argue "all interesting politics is national, and the local stuff is tedious."

Oh, how far we have strayed from the ideals of the framers. Throughout the Colonial period, each colony enjoyed tremendous freedom (at least from each other, if not from King George). As a result, they were extremely anxious about giving that up by joining some sort of large American nation. But because all the colonists shared the same reservations, they were able to agree to a sort of tenuous Republic, modeled in part (I believe) on Greek ideas of various city-states, each with self-government, but the ability to come together for the common good. Such relationships are older than history. But this idea of United States was different. The states are obviously bound together; this is a nation, no doubt about that. But this was originally a nation that provided for a tremendous amount of local control. Jefferson is famous for his insistence on States' rights. Most have heard that the Civil War was at least partly concerned with states' rights.

But what does all this have to do with Judges?

To put it bluntly, many have found ways to ignore the Tenth Amendment. On so many issues our federal government now intrudes in areas the states once held sacred. This has probably gone on throughout our history, but it really took off while FDR was president. Admittedly, we were coming out of a depression and fighting the second of two huge wars in 20 years. People were willing to unite behind the president and the United States. That was the right thing to do. But FDR, you may remember, was famous for his court-packing scheme. He knew the Judicial limits on his own power, and those darn judges weren't dying fast enough. So FDR tried to enlarge the Court by three seats, which would be his to fill, of course. It didn't happen. But he made inroads nevertheless, appointing men to fill eight of the nine seats during his four terms as President.

Did you hear Governor Rick Perry (or was it Mississippi's Haley Barbour?) who recently testified in FEMA hearings that he did not want the federal government to become the first-responders in cases of natural disasters. The locals know the place, they know the system, the roads, the people, the needs. Of course they should be the first on the scene and they should call the shots.

But does the debate strike you as odd? Years ago, there would have been no debate. For years, states that now climb all over each other racing to suckle up to the federal teat, turned down federal handouts the same way the men rejected charity if it was offered to their families by the neighbors. States were once too proud for handouts and fought vigorously to prevent any federal intrusions into areas reserved to the states. Jimmy Carter created the Education Department, a federal sinkhole that may have done some good, but is the money used efficiently?

My point here, and sorry if I've strayed, is that the Court and its judges must remember and respect federalism. That probably won't happen if the people don't demand it. And we don't. But it matters. One of the biggest problems with Roe v. Wade, and decisions like it, is that it was an abuse of federalism. A power reserved to the states, the power to regulate abortion, was removed by the federal court.

Here are some more thoughts on Federalism from Robert Bork's book, referenced elsewhere.

"Today [federalism] is usually thought passe, quaint, or even tyrannical, this last because federalism, rephrased as 'states' rights,' permitted some states to legislate racial discrimination."

"But federalism also had an important benign aspect, the protection of individual liberty."

"Federalism is, moreover, the only constitutional protection of liberty that is neutral." (Because it is not related to specific subjects, like speech, assembly, religion, etc.) "In this sense, federalism is the constitutional guarantee most protective of the individual's freedom to make his own choices."

Remember, if you don't like the way it is where you are, you have 49 other states from which to choose. Environmental regulations choking your business? Move. I suggest Texas. Don't like that new state income tax? Move. Again, consider Texas. Tired of dropping your guns at the Potomac bridge? Get out of the beltway (probably the least likely to benefit from federalism) and move to Virginia. Want to smoke in public? Or to drive a gas-guzzler? Or to cut the timber on your own land? Federalism still provides a lot of options. But as judges neglect it, crushing states' rights under their federal jackboots, the states will become more and more alike, all burdened with more and more laws, many of them bad.

Federalism matters. And maybe all this gives you some idea about the Federalist Society. I'm a member of that august organization, but I honestly think the name is related more to the federalist papers. But you can check their website for more info.

By the way, kudos to Jennifer DiMaggio for the topic. We were talking about Roe and got onto federalism. She is headed to D.C. to work for International Christian Concern, where she will specialize in efforts to aid the persecuted church in Sudan. You can reach her at (Or is it ''). Anyway, Sudan is another topic dear to my heart.


Blogger J Holden said...

steven - i've learned more on your blog this past week than i have for 2 months reading every other blog i've come across

thanks again - i enjoy it so much

and if you don't mind me asking, what do YOU think is the ideal situation to occur with Roe v. Wade?

12:40 PM  
Blogger J Holden said...

or rather, the CORRECT situation?

12:41 PM  
Blogger dennis said...

Jennifer's email is ""

This is a really nice and concise summary of federalism- too bad our politicians don't look to be even close to ever getting back to the way things used to be. The Federal Machine keeps legislating more and more power for itself and it seems it is out of control.

1:02 PM  
Blogger Steven Wales said...

DSW--Agreed, and thanks.
J--Thanks. And the ideal solution is a constitutional amendment. That is a totally democratic solution, so those who "lose" can at least have the satisfaction of knowing it was done in the fairest process available.

I realize that is unlikely. And--one thing no one has confronted me with yet--is the actual fact that we are talking about the wholesale slaughter of the innocents. Herod and Rameses had nothing on us. And when you talk about the sheer numbers and the extraordinary immorality and evil of it, if you see it that way, well, then all I can do is shut up.

In other words, any USSC decision that reversed Roe would save thousands of lives. And that result is arguably worth it, even if it made our nation more cynical in the long run.

Or maybe it isn't.

Like I said elsewhere, a 5-4 decision reversing Roe would leave everyone cynical, thinking this is not objective jurisprudence, it's politics. And the next time liberals outnumber conservatives, will it be 5-4 the other way? (I wouldn't put it past them.)

So in terms of protecting the integrity of our judicial and democratic system, we really need to opt for the Constitutional Amendement. (Bork even writes that stare decisis being what it is, Roe is too entrenched to be reversed by the Court and an amendment is the only solution.)

But in terms of protecting the unborn.... I'm just glad neither decision is fully in my hands.

2:25 PM  
Blogger Steven Wales said...

By the way, I should note that federalism, unlike so many of these other issues, is one for all three branches to consider. You can hardly expect the president or legislators to be constitutional scholars or to talk and think about such things as judicial philosophy or originalism (I've been saving that topic).

But everyone in Washington is guilty of trampling on the doctrine of federalism. Sure, some fight for local control. But when was the last time they turned down federal funds? Not that you have to, but those funds ALWAYS come with strings, don't they? (And they should, lest Louisiana spend levee money on casino-building, for example. Accountability matters, as long as we're giving 35% of your paycheck away.)

Anyway, federalism is an important issue that everyone in Washington should be working to protect. Because when it comes to placing blame for the growth of the government and the loss of local control, the Court merely unlocked the door. It's the legislature and Executive that stormed the gates and flooded the local fortress.

Sorry about the silly analogies.

4:04 PM  
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12:15 PM  

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