A Different Take on Federalism Part I

ArticleVBlog ^ | April 13th 2020 | Rodney Dodsworth

[Jacquerie]

Subtitle: The Insidious 17th Amendment.

The 17th Amendment did to federalism what the 13th Amendment did to slavery. Both are long-gone vestiges of our framing era. Tenth Amendment? States’ rights? Poof, and not only long-gone but neither slavery nor federalism can possibly return without repeal of their respective amendments.

Conservatives would do well to consider the 13th – 15th Amendments. Beginning with freeing slaves, then prohibiting state violations of privileges or immunities, securing due process, equal protection and entitling blacks to vote, the post-civil war amendments fundamentally altered society and the federal/state government relationship. Unlike the pre-civil war Constitution, the post-civil war amendments specifically charged congress, and not the judiciary by implication or otherwise, with enforcement. “Congress shall have the power to enforce this article by appropriate legislation,” (or equivalent wording) closes the 13th – 15th Amendments.¹ And a federal congress did just that. Congresses enacted assorted legislation to secure the franchise for blacks and liberty for all.

Before Scotus got into the habit of amending the US Constitution, state constitutions, federal and state laws, it was the presence of the states in the senate that kept a lid on, and prevented abuse of, the 14th and 15th amendments. While the 14th Amendment nationalized citizenship and granted congress enormous enforcement power, so long as the senate that had to concur in the actual employment of that enormous power was elected by state legislatures, federalism and the interests of the states as states remained secure.

[beancounter13]

I hate to tell you people this, but the 10th Amendment died at Appomattox. The secessions of 1861 where the original Article V, and that didn’t work out too well. The freedom the U.S. enjoyed at its founding ceased to exist as a result of that war. Look no further than the 14 Amendment for validation:

All persons born or naturalized in the United States and subject to the jurisdiction thereof... (emphasis mine)

We are all merely subjects now.

[PubliusMM]

Excellent read. Thanks for the post.

[Jacquerie]

I thank you back!

[redinIllinois]

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