I think we need to be the party of Conservatarianism/Federalism.
What is Federalism? Defining federalism has never been a simple task. As colonies, the states had developed independently and, even after the Revolutionary War, they remained "distinct, different and insular communities."1 Consequently, bringing the states together in a federal system was fraught with controversy. The states had become very jealous of their independence and autonomy and many people were suspicious of the new Constitutional arrangement that would require the states to give up power to the national government. Indeed, it was the states' reluctance to surrender even the smallest amount of sovereignty that had made the government under the Articles of Confederation so weak (see "Self Rule"). The events that had prompted the states to send delegates to the Constitutional Convention, however, had also made them much more willing to accept limitations on state power than they had been before. If a stronger national government could help solve the states' trade and commerce problems, they were willing to relinquish some of their independence. Then as today, however, there was controversy about just how much independence would have to be given up to make the national government strong enough to achieve the ends it was being created to pursue. Redefining "Federalism" The Articles of Confederation had established a "federal" system in the truest sense of the word. In the late 1700s, a federation or federal relationship meant an alliance between sovereign, independent and autonomous states or nations. Such was the arrangement under the Articles, which had created a "loose league of friendship" governed by a Confederal Congress with no authority to compel the states to do anything. It could simply request that the states comply with its recommendations. (Recall the difficulty the national government had trying to respond to Shay's Rebellion.) As internal problems and external crises became more severe, however, the states began to recognize that the Articles were insufficient for their needs. Having admitted that a stronger national government was necessary, the states were still not anxious about giving up authority or autonomy to a national government. Far from lending support to a "consolidated" government, one in which the states would be totally and completely absorbed into a larger nation with one government, they preferred a continued federal relationship between the states and the national government. Recognizing the attractiveness of the federal principle, the supporters of the Constitution called themselves "Federalists," even though their true intentions were not to form a "federal" government at all. By Madison's own admission, the Constitutional system created a consolidated-federal hybrid: The proposed Constitution . . . is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national (see Federalist No. 39). It turned out to be a stroke of political genius for Madison and his allies to call themselves "federalists" while supporting a Constitution that created a less than purely federal system. The opponents of the Constitution were left with the unenviable title of "Antifederalists," as if they were opposed to the federal principle.2 While the Federalists would eventually win the battle for ratification of the Constitution, the definition of federalism and the relationship between the national and state governments was not settled once and for all in 1789. Indeed, Woodrow Wilson, the 28th President of the United States, would later observe: The question of the relation of the States to the Federal Government is the cardinal question of our constitutional system. At every turn of our national development, we have been brought face to face with it, and no definition either of statesmen or of judges has ever quieted or decided it.3 Competing Definitions of Federalism As Wilson suggests, there have been numerous attempts throughout American political history to define and re-define federalism. However, the best efforts of both national and state political leaders and Supreme Court Justices notwithstanding, this nation has never settled on one definition of federalism. Historically, presidents, members of Congress, judges and state and local leaders have held often radically opposed definitions and interpretations of federalism. Dual Federalism During the first century of this nation's existence, the most widely accepted view of the relationship between the states and the national government was one of "dual federalism." Sometimes called the "layered cake" theory of federalism, dual federalism is based on the notion that there are two distinct spheres of government, a national sphere and a state sphere. Within each sphere, the relevant government is independent and largely autonomous, free from intrusions by the other. While the notion that states remained completely sovereign and independent from the national government had been rejected and soundly rejected during the Civil War, dual federalism continued to be the most widely held view of federalism in this nation until the 1930s. Historians and students of federalism generally point to the Great Depression as the point in time when dual federalism fell out of fashion. In response to this nation's worst economic crisis, the national government mobilized as it never had before, creating several new, large-scale programs, including nationally administered jobs programs and Social Security. The massive extension of national governmental authority and influence that accompanied these programs dramatically altered the balance of power between the national government and the states. With the cooperation of the Supreme Court, the dual federalism approach was replaced with a new understanding of national-state relations, one which gave much greater weight to the national government prerogatives. Since the 1980s, dual federalism has gradually regained support among politicians and, more recently, Supreme Court Justices. Presidents Reagan and Bush both sought to reestablish clearer lines between national and state functions. More dramatically, however, the Supreme Court has resurrected the concept of dual federalism and dual sovereignty in some of its recent decisions. When the Court declared a provision of the Brady Bill unconstitutional in 1997, it did so because, in the opinion of the Court, it violated the notion of dual federalism. At issue was a five day waiting period to purchase a handgun. While the Court was not overly concerned about the waiting period itself, it ruled that requiring local law enforcement officials to perform background checks on potential gun buyers was improper. In its decision, the Court declared: The federal government may neither issue directives requiring the states to address particular problems, nor command the states' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. Such commands are fundamentally incompatible with our constitutional system of dual sovereignty (see Printz v. U.S.). Whether or not the Court continues to rely on this interpretation of federalism in future cases, however, remains to be seen. Given the narrow vote margins in many recent federalism cases, the definition of federalism will depend on future Supreme Court appointments. If the next president appoints conservative judges who are friendly to the notion of states' rights, the current trend is likely to continue. If more liberal justices are appointed, however, any further movement toward the reestablishment of dual federalism is unlikely. Permissive Federalism One of the more controversial definitions of federalism, especially in light of current trends toward decentralization and the emphasis on "states rights," is the idea that the states have only those powers and authorities permitted to them by the national government. Permissive federalism, as this view is called, holds that the states are subordinate to the national government and that they derive their existence and authority from the national government. Many conservatives have taken exception with this view of federalism, most notably Ronald Reagan who asserted that it was the states that created the national government and, therefore, the states were entitled to a comparatively greater share of governmental authority and resources. This view however, was not supported by the first Republican President, Abraham Lincoln, who declared: The Union is older than any of the states and, in fact, it created them as States. . . . The Union and not the states separately produced their independence and their liberty. . . . The Union gave each of them whatever independence and liberty it has.4 Lincoln's views of federalism were obviously motivated by the Civil War experience and the belief that no state had the "right" to leave the Union. Lincoln's view, however, is not entirely a defense of permissive federalism. In fact, it would probably be a misinterpretation to suggest that is was. However, the notion of national supremacy and the idea that the existence of the states is dependent upon the national government provide fertile soil for the "permissive" view of federalism. Cooperative or "Marble Cake" Federalism In response to the commonly held views of dual federalism and permissive federalism, both of which suggest an adversarial relationship between the national and state governments, some constitutional scholars have argued that attempts to draw lines between national and state governmental activities are counter-productive. Instead of a two or three-layered, cake, they argued that the relationship between different levels of government in this nation is more like a marble cake, with swirls that cut across the levels, often blurring the distinction between them. In practice: Functions are not neatly parceled out among the many governments. They are shared functions. It is difficult to find any governmental activity which does not involve all three of the so-called "levels" of the federal system. . . . [F]ederal-state-local collaboration is the characteristic mode of action.5 The "marble cake" metaphor suggests that the national and state governments are highly interwoven and interdependent. Accordingly, another term for marble cake federalism is cooperative federalism. According to this view, the national government and state governments are not, in fact, adversaries but rather different levels of government pursuing largely the same goals. For example, both national and state governments are interested in improving education, protecting the environment, promoting economic growth and reducing crime. To the extent that cooperation is feasible and beneficial, national, state and local governments can and do work together to accomplish these goals. In an attempt to formalize this view of federalism, President Clinton issued an Executive Order on federalism in March of 1999. After state legislators and governors complained that they had not been consulted in the process, the White House withdrew the order and began a series of discussions with state officials. The result was a re-written Executive Order on federalism issued in August, 1999.6 The Executive Order, among other things, holds that: Issues that are not national in scope or significance are most appropriately addressed by the level of government closest to the people. The Framers recognized that the States possess unique authorities, qualities, and abilities to meet the needs of the people and should function as laboratories of democracy. Acts of the national government--whether legislative, executive, or judicial in nature--that exceed the enumerated powers of that government under the Constitution violate the principle of federalism established by the Framers. The national government should be deferential to the States when taking action that affects the policy-making discretion of the States and should act only with the greatest caution where State or local governments have identified uncertainties regarding the constitutional or statutory authority of the national government. New Federalism As policy leaders and the Supreme Court gradually redefines federalism, they are confronted with the need to set priorities and determine which levels of government are best suited to perfume which tasks. The "new federalism" being created in the process is one which places a greater emphasis on the states, both in terms of funding and running programs. One of the most striking examples of this trend is the 1995 Welfare Reform legislation passed by the Congress which shifted much of the administration of federal welfare programs from the national level to the states. State governors and conservatives in Congress are eager to tip the scales even more toward the states. It seems unlikely, however, that a major change in the balance of power is on the near horizon. Members of Congress, conservatives and liberals alike, are unwilling to cede their authority and spending power to the states. Many interesting and difficult questions lie ahead, however, as the Congress and the states deal with the new realities of the economy, technology, education and health care. The issues surrounding "new federalism" are discussed in greater detail in "Controversies in Federalism."
What is Federalism? Defining federalism has never been a simple task. As colonies, the states had developed independently and, even after the Revolutionary War, they remained "distinct, different and insular communities."1 Consequently, bringing the states together in a federal system was fraught with controversy. The states had become very jealous of their independence and autonomy and many people were suspicious of the new Constitutional arrangement that would require the states to give up power to the national government. Indeed, it was the states' reluctance to surrender even the smallest amount of sovereignty that had made the government under the Articles of Confederation so weak (see "Self Rule").
The events that had prompted the states to send delegates to the Constitutional Convention, however, had also made them much more willing to accept limitations on state power than they had been before. If a stronger national government could help solve the states' trade and commerce problems, they were willing to relinquish some of their independence. Then as today, however, there was controversy about just how much independence would have to be given up to make the national government strong enough to achieve the ends it was being created to pursue.
Redefining "Federalism" The Articles of Confederation had established a "federal" system in the truest sense of the word. In the late 1700s, a federation or federal relationship meant an alliance between sovereign, independent and autonomous states or nations. Such was the arrangement under the Articles, which had created a "loose league of friendship" governed by a Confederal Congress with no authority to compel the states to do anything. It could simply request that the states comply with its recommendations. (Recall the difficulty the national government had trying to respond to Shay's Rebellion.) As internal problems and external crises became more severe, however, the states began to recognize that the Articles were insufficient for their needs.
Having admitted that a stronger national government was necessary, the states were still not anxious about giving up authority or autonomy to a national government. Far from lending support to a "consolidated" government, one in which the states would be totally and completely absorbed into a larger nation with one government, they preferred a continued federal relationship between the states and the national government.
Recognizing the attractiveness of the federal principle, the supporters of the Constitution called themselves "Federalists," even though their true intentions were not to form a "federal" government at all. By Madison's own admission, the Constitutional system created a consolidated-federal hybrid: .
The proposed Constitution . . . is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national (see Federalist No. 39). It turned out to be a stroke of political genius for Madison and his allies to call themselves "federalists" while supporting a Constitution that created a less than purely federal system. The opponents of the Constitution were left with the unenviable title of "Antifederalists," as if they were opposed to the federal principle.2 .
While the Federalists would eventually win the battle for ratification of the Constitution, the definition of federalism and the relationship between the national and state governments was not settled once and for all in 1789. Indeed, Woodrow Wilson, the 28th President of the United States, would later observe: .
The question of the relation of the States to the Federal Government is the cardinal question of our constitutional system. At every turn of our national development, we have been brought face to face with it, and no definition either of statesmen or of judges has ever quieted or decided it.3.
Competing Definitions of Federalism As Wilson suggests, there have been numerous attempts throughout American political history to define and re-define federalism. However, the best efforts of both national and state political leaders and Supreme Court Justices notwithstanding, this nation has never settled on one definition of federalism. Historically, presidents, members of Congress, judges and state and local leaders have held often radically opposed definitions and interpretations of federalism. .
Dual Federalism During the first century of this nation's existence, the most widely accepted view of the relationship between the states and the national government was one of "dual federalism." Sometimes called the "layered cake" theory of federalism, dual federalism is based on the notion that there are two distinct spheres of government, a national sphere and a state sphere. Within each sphere, the relevant government is independent and largely autonomous, free from intrusions by the other. .
While the notion that states remained completely sovereign and independent from the national government had been rejected and soundly rejected during the Civil War, dual federalism continued to be the most widely held view of federalism in this nation until the 1930s. Historians and students of federalism generally point to the Great Depression as the point in time when dual federalism fell out of fashion. In response to this nation's worst economic crisis, the national government mobilized as it never had before, creating several new, large-scale programs, including nationally administered jobs programs and Social Security. The massive extension of national governmental authority and influence that accompanied these programs dramatically altered the balance of power between the national government and the states. With the cooperation of the Supreme Court, the dual federalism approach was replaced with a new understanding of national-state relations, one which gave much greater weight to the national government prerogatives. .
Since the 1980s, dual federalism has gradually regained support among politicians and, more recently, Supreme Court Justices. Presidents Reagan and Bush both sought to reestablish clearer lines between national and state functions. More dramatically, however, the Supreme Court has resurrected the concept of dual federalism and dual sovereignty in some of its recent decisions. When the Court declared a provision of the Brady Bill unconstitutional in 1997, it did so because, in the opinion of the Court, it violated the notion of dual federalism. At issue was a five day waiting period to purchase a handgun. While the Court was not overly concerned about the waiting period itself, it ruled that requiring local law enforcement officials to perform background checks on potential gun buyers was improper. In its decision, the Court declared: .
The federal government may neither issue directives requiring the states to address particular problems, nor command the states' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. Such commands are fundamentally incompatible with our constitutional system of dual sovereignty (see Printz v. U.S.). Whether or not the Court continues to rely on this interpretation of federalism in future cases, however, remains to be seen. Given the narrow vote margins in many recent federalism cases, the definition of federalism will depend on future Supreme Court appointments. If the next president appoints conservative judges who are friendly to the notion of states' rights, the current trend is likely to continue. If more liberal justices are appointed, however, any further movement toward the reestablishment of dual federalism is unlikely. .
Permissive Federalism One of the more controversial definitions of federalism, especially in light of current trends toward decentralization and the emphasis on "states rights," is the idea that the states have only those powers and authorities permitted to them by the national government. Permissive federalism, as this view is called, holds that the states are subordinate to the national government and that they derive their existence and authority from the national government. .
Many conservatives have taken exception with this view of federalism, most notably Ronald Reagan who asserted that it was the states that created the national government and, therefore, the states were entitled to a comparatively greater share of governmental authority and resources. This view however, was not supported by the first Republican President, Abraham Lincoln, who declared: .
The Union is older than any of the states and, in fact, it created them as States. . . . The Union and not the states separately produced their independence and their liberty. . . . The Union gave each of them whatever independence and liberty it has.4 Lincoln's views of federalism were obviously motivated by the Civil War experience and the belief that no state had the "right" to leave the Union. Lincoln's view, however, is not entirely a defense of permissive federalism. In fact, it would probably be a misinterpretation to suggest that is was. However, the notion of national supremacy and the idea that the existence of the states is dependent upon the national government provide fertile soil for the "permissive" view of federalism. .
Cooperative or "Marble Cake" Federalism In response to the commonly held views of dual federalism and permissive federalism, both of which suggest an adversarial relationship between the national and state governments, some constitutional scholars have argued that attempts to draw lines between national and state governmental activities are counter-productive. Instead of a two or three-layered, cake, they argued that the relationship between different levels of government in this nation is more like a marble cake, with swirls that cut across the levels, often blurring the distinction between them. In practice: .
Functions are not neatly parceled out among the many governments. They are shared functions. It is difficult to find any governmental activity which does not involve all three of the so-called "levels" of the federal system. . . . [F]ederal-state-local collaboration is the characteristic mode of action.5 The "marble cake" metaphor suggests that the national and state governments are highly interwoven and interdependent. Accordingly, another term for marble cake federalism is cooperative federalism. According to this view, the national government and state governments are not, in fact, adversaries but rather different levels of government pursuing largely the same goals. For example, both national and state governments are interested in improving education, protecting the environment, promoting economic growth and reducing crime. To the extent that cooperation is feasible and beneficial, national, state and local governments can and do work together to accomplish these goals. .
In an attempt to formalize this view of federalism, President Clinton issued an Executive Order on federalism in March of 1999. After state legislators and governors complained that they had not been consulted in the process, the White House withdrew the order and began a series of discussions with state officials. The result was a re-written Executive Order on federalism issued in August, 1999.6 .
The Executive Order, among other things, holds that: .
Issues that are not national in scope or significance are most appropriately addressed by the level of government closest to the people. The Framers recognized that the States possess unique authorities, qualities, and abilities to meet the needs of the people and should function as laboratories of democracy. Acts of the national government--whether legislative, executive, or judicial in nature--that exceed the enumerated powers of that government under the Constitution violate the principle of federalism established by the Framers. The national government should be deferential to the States when taking action that affects the policy-making discretion of the States and should act only with the greatest caution where State or local governments have identified uncertainties regarding the constitutional or statutory authority of the national government. .
New Federalism As policy leaders and the Supreme Court gradually redefines federalism, they are confronted with the need to set priorities and determine which levels of government are best suited to perfume which tasks. The "new federalism" being created in the process is one which places a greater emphasis on the states, both in terms of funding and running programs. One of the most striking examples of this trend is the 1995 Welfare Reform legislation passed by the Congress which shifted much of the administration of federal welfare programs from the national level to the states. State governors and conservatives in Congress are eager to tip the scales even more toward the states. It seems unlikely, however, that a major change in the balance of power is on the near horizon. Members of Congress, conservatives and liberals alike, are unwilling to cede their authority and spending power to the states. Many interesting and difficult questions lie ahead, however, as the Congress and the states deal with the new realities of the economy, technology, education and health care. The issues surrounding "new federalism" are discussed in greater detail in "Controversies in Federalism."