A Republic, if you can keep it.

Americans know the story.  At the close of the Constitutional Convention of 1787 when the delegates came out of Independence Hall, a Mrs. Powel asked Benjamin Franklin, "Well, what do we have?  A monarchy or a republic?" to which Franklin immediately replied, "A republic, if you can keep it." Well, we have kept it, but now it is in danger.  This is not the first time it has been in danger, though we fear it could be the last because this time, when the crisis has come, the structural foundation of our republic is almost gone, to the point we have all but forgotten it.

US federalism has been mostly dead since the New Deal. Outside of government, only lawyers commonly deal with federalism issues and some of us don't understand it. I've found myself explaining federalism often of late.

This post is a basic description of the federalist structure for laymen. Note, federalism isn't a theory of limited government, but a structural framework for supporting limited government.  One can be for limited government and not be a federalist, just ask some libertarians. One need not lean to the right to be a federalist, either. There are progressive federalists. Now with the re-election of Barak Obama and the hardened lines between red and blue Americans, federalism is out way out of the gridlock. We only have remember how it works, first. 

The best way to start is a quick read of the US Constitution. It isn’t a long document and reading shouldn’t take more than 15 minutes. Pay attention to whom the document addresses, the shalls and the shall nots. 

A pattern emerges. The federal government has a list of things it is told to do and another list of things it is told not to do.  The state governments are addressed sparingly, mostly to grant them powers not granted or prohibited to the federal government.  That is, the federal government has specific limits.  The state governments have everything else. 

The Constitution grants the states, the more local, more easily controlled entities, the greater leeway in legislation. If California and Massachusetts want social welfare states, they can have them.  If New Hampshire wants a libertarian state, it can be done.  This is the essential federalist position: make government more local and you make it more responsive to the people it governs.

Breaking it all down, the Constitution starts with the Inherent powers (which most of Gen X can sing as a 70’s folk song). They are: 

  • establish justice, 
  • insure domestic tranquility, 
  • provide for the common defense, 
  • promote the general welfare, and 
  • secure the blessings of liberty to ourselves and our posterity. 
These are the purposes for Union stated in the Preamble. They are “inherent” because they are the powers that underlie all national unions; they are the reasons societies organize governments.

Then the document moves to the Enumerated powers, the specifically mentioned items of Congress’s powers. (The Executive Branch has its own powers, political appointments, vetoes, etc., but they are not considered part of the Enumerated powers and don’t affect the tension between the federal legislature and the state governments.) The Enumerated powers are: 

  • Borrow money 
  • Regulate commerce among the states 
  • Regulate naturalization 
  • Regulate bankruptcies 
  • Coin money 
  • Fix weights and standards 
  • Punish counterfeiters 
  • Establish post offices 
  • Establish post roads 
  • Record patents 
  • Protect copyrights 
  • Create federal courts 
  • Punish pirates 
  • Declare war 
  • Raise an army 
  • Provide a navy 
  • Call up the militia 
  • Organize the militia 
  • Makes laws for Washington, DC 
  • Make rules for the Army and Navy 
Then, come the Implied powers. The Constitution states that Congress can make laws “necessary and proper” to carrying out its powers. For instance, if Congress has the power to coin money, obviously it has the power to build a mint.  The power to build a mint is an implied power.

After the list of what Congress may do, comes the list of what Congress shall not do: the Bill of Rights. Congress shall not:

  • establish a religion or prohibit the free exercise of religion
  • abridge the freedom of speech or press
  • abridge the right of the people peaceably to assemble and to petition the Government 
  • infringe on the right of the people to keep and bear arms
  • quarter soldiers without the consent
  • conduct unreasonable searches and seizures
  • hold a person for crime without a Grand Jury
  • subject any person to double jeopardy 
  • compel a person to testify against himself
  • deprive any person of life, liberty, or property without due process of law 
  • take private property without just compensation
  • deny trial by jury
  • impose excessive fines or cruel and unusual punishment
At this point Congress has a list of things it can do, and a list of things it can't do.  The document only limits Congress, and plainly states in the 10th Amendment that the powers not delegated or prohibited to the United States, are reserved by the States or the people. The States could exercise any power not granted to Congress.  

Subsequent amendments add to the Congress's list: abolish slavery, establish citizenship standards, provide the vote to women and 18 year olds, and allow a federal income tax. 

In addition to adding powers, the subsequent amendments make a more subtle change. By the wording of the 14th Amendment, most of the shall-nots of the Bill of Rights were Incorporated against the States. Prior to the Civil War, Massachusetts, for instance, had a state church.  After the Civil War the prohibition against established religion applied to Massachusetts as well as DC. (Some of those provisions have not been formally incorporated because USSC decisions became so consistent about incorporation that the Circuit courts started assuming incorporation and lawyers stopped challenging those assumptions.)

In the end, Congress has a list of specific things it can do and another list of things it shall not do. The states, they can do anything not on either of Congress's lists. 

Therefore, when Congress passes a law, we have a two part test: 

  1. Is it within one of the powers granted to Congress? 
  2. If yes, then is the action prohibited by any of the restrictions on Congress? If no, then it passes Constitutional muster. 

When Texas passes a law, however, the analysis is simpler--one part.  

  1. Is the action is prohibited to the states, either because it is within Congressional power or prohibited by the amendments?  If not, then it passes US Constitutional muster. 

That is, for the federal government, there is a threshold question about whether the action is permitted. For the states we only need ask if the action is prohibited. It is a subtle but significant distinction, though it is of little consequence these days because Constitutional jurisprudence has twisted US federalism.

After reading the above short list of Congressional powers, one might wonder how Congress does all of the things it does--light bulb regulations, hearings on steroid use in the Major Leagues, etc. The tale is multifaceted and complicated but often involves the Implied Powers of the Necessary and Proper Clause. In Con Law, "necessary" doesn't mean necessary as English speakers understand the term. In fact, the Necessary and Proper Clause is nicknamed the Elastic Clause for it's ability to stretch to fit whatever the post-New Deal Congresses want to do. Lots of things are "necessary" to regulate interstate commerce, for instance. And by the way, "interstate commerce" doesn't have to be actual interstate commerce. Theoretical interstate commerce will suffice.  

Worse, due to federal preemption reasoning, states are often prohibited from acting in the expanded realm of Congressional power even if Congress hasn't legislated on the issue. (Query Dormant Commerce Clause for the prime example.)

The result: the presumptions set up in the Constitution have capsized, turning federalism on its head.  Instead of limiting Congressional power, we presume Congressional power.  Instead of presuming State power, we limit it. In the simplest of terms, a modern federalist wants to restore the balance of presumptions.

Other links
The Federalist Society blog
AEI Federalism Project
Freedom's Charter series
Justice Thomas, swinging for the fences
Randy Barnett on A Bill of Federalism

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