The Constitution Today: Federalism
http://thedianerehmshow.org/shows/2010-11-15/constitution-today-federalism
The constitution of the United States established a government based on federalism or a power-share between the national, state and local government. The intent was to differentiate us from countries with a centralized government, like England. The relationship between federal and state governments continues to evolve. More recently there’s been a push for more states rights by the Tea Party and some conservatives, like the governors of Virginia and Texas. As part of our continuing series the Constitution Today, “Federalism,” its history and present day significance to American law
Guests
Stuart Taylor
contributing editor, Newsweek and National Journal
Michael Quinn
president and executive director of James Madison's Montpelier.
Nina Pillard
Professor of Law at Georgetown University
Comments
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It seems like the balance of power between the State and Federal Government is shifting gradually towards the Federal side. In most cases where the state government makes a decision about how they want to proceed with a difficult issue, like immigration or the environment, it seems like the Feds step in and basically tell the states that they don't really know what's best for their constituents.
One of the subjects rarely discussed in these matters, is the reason that the founding citizens opted for a limited federal government, which was/is the well established propensity for self-dealing by politicians holding the reins of power.
Latter day theories aside, the structure and content and hence the resultant [I would emphasize the word “RESULTANT”] , “balance of power” was not implemented by academic theorists but by a group of hardnosed citizen- politicians who understood that historical fact that, later included by James Madison in his brilliant essay, No. 10, of The Federalist, that the people holding political power would in almost every case opt to gratify their immediate personal interests over those of the long term common good and, in order to limit the potential for harm from that propensity, limited the scope of federal power by limiting it to just that necessary to maintain control of national security and the commerce necessary to a viable nation, reserving all the rest to the citizens or to the states, as they saw fit to delegate any of it.
Regarding the Constitutionality of the new health care law, could this be improved if the law was modified to provide money to those states that pass laws requiring the purchase of health insurance? If the federal government does not have this power, the states do and the federal government has the power of the purse.
You are correct, I think. Obabamcare is never going to survive, nor should it. Each state should be responsible for providing health care ala Mass. If the peoples of that state want it. Maybe some financial support for the states, but no administartive oversight.
Too much of the debate about Federalism, and about the Constitution as a whole, degenerates into a battle of simplistic slogans.
One example is the question of whether the Constitution is “dead or alive”, a silly inquiry. As the great John Marshall put it, the Constitution could not possibly expressly embrace every conceivable subject and be understood by humans. Thus it can only set forth general principles, whose application will indeed change as the nation changes. The principles may not change (may be “dead”), but the application of those principles and our understanding of them definitely do change, and are very much alive.
Another example is the misuse of the phrase “enumerated powers”, which actually is not in the Constitution (the word “enumerated” itself only appears in the Ninth Amendment). Those who argue Congress can’t regulate healthcare or health insurance because those words aren’t “enumerated” should explain where the Constitution enumerates an Air Force, or authority to regulate abortion.
I don't understand why Wyoming was able to preserve women's sufferage by refusing to become a state unless this was permitted when Utah was made to repeal women's sufferage. Did the Congress just fake Utah out? How do you justify removing personal rights?
Mary M on November 14, 2010 @ 4:18 am wrote: “. . . like immigration or the environment, it seems like the Feds step in and basically tell the states that they don't really know what's best for their constituents.”
Speak of simplistic (and erroneous) arguments, this is a perfect example. Mary, on immigration you have things exactly backwards. The Federal government has always had exclusive power over matters of immigration. Attempts by the states to legislate in this area is an invasion of powers “delegated to the United States by the Constitution”.
As for the environment, it should be obvious that this is very much a matter of “interstate commerce”. The winds blow from West to East. Are you seriously suggesting the Federal government can’t act to protect New York residents against pollution from California? What’s your solution? A second “war between the states”?
And please note, the environmental laws allow the states to create their own regulations. They just can’t “allow” more pollution than the Federal government. This is an example of "concurrent jurisdiction" between the State and Federal governments.
If the tenth amendment gives "powers" to states and people, why is it called a "Bill of Rights " if "powers" is not "rights?"
To samscram, writing on November 15, 2010 @ 5:53 am:
Bravo, sir, you’ve done a splendid job of turning Madison’s words (in Federalist Paper No. 10) on their head! According to you, he was arguing against the Federal government, when in fact the paper was devoted to arguing in favor of of a strong Federal Union.
His principle concern, as he says at the start, is the poisonous effect of what he calls factions. “By a faction I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” (Sounds like a good description of the Tea Baggers to me.)
Madison was especially concerned with factions based on “local prejudices”, that is the local interest of one state versus the good of the nation as a whole. He states that a Federal government and Union protects against such factions seizing power, by confining their influence to the state in which they arise. “The influence of factious leaders may kindle a flame within their particular States but will be unable to spread a general conflagration through the other States.” In short, Madison was arguing the exact opposite of what you claim.
As for how limited the Federal government may be, while there are limits, I defy you to quote where in the Constitution they are “enumerated” as narrowly as you pretend. Conservative ideology is not the same as Constitutional Law!
Tim D. on November 15, 2010 @ 11:28 am wrote: “Regarding the Constitutionality of the new health care law, could this be improved if the law was modified to provide money to those states that pass laws requiring the purchase of health insurance? If the federal government does not have this power, the states do and the federal government has the power of the purse.”
Actually, I believe there are parts of the new law that include funding for States that choose to participate in the system (such as by setting up health insurance exchanges). The law also provides subsidies to help people afford insurance. None of this is relevant to the issue of the mandate, though, which may (I say may) be constitutional for other reasons.
As for the “power of the purse”, that refers to the concept of “separation of powers” between the three branches of the Federal government, and has nothing to do with Federalism: the balance of power between the State and Federal governments. Congress alone can raise funds (through custom duties, taxes, etc.), and only Congress can appropriate that money and decide how it shall be spent (through the budget). However, that power only extends to the Federal “purse”. The State Legislatures wield “the power of the purse” over expenditures by their state’s government.
To pjnuge, writing on November 15, 2010 @ 11:39 am:
PART ONE
You are incorrect, sir. Do you also think each state should be responsible for providing Social Security, Medicare and Medicaid, Worker’s Compensation, Unemployment Insurance, regulating the purity of our food and drugs, insuring honesty and full disclosure in stock offerings, not to mention the thousands of other things the Federal government has authority over?
The fact is there are many issues which are national in scope, and which require a national solution (for the simple reason that anything less simply won’t work). While the “individual mandate” may lie at the outer limit of Congress’s power (and may even go beyond those limits), it’s hardly the “be all and end all” of the new healthcare law, and it’s purpose could be achieved in other ways.
PART TWO
One example of an alternative should suffice. The mandate is partly designed to deal with the problem of so-called “young immortals”: people who feel they don’t need insurance because they are young and fit. They choose to wait until they are old and infirm to buy insurance. The problem is: given the nature of insurance (the spreading of risk among a large pool of people), such conduct “games the system” and increases insurance costs for the rest of us. Furthermore, thanks to a law signed by that old “commie” Reagan, hospitals must provide emergency care regardless of one’s ability to pay. Thus, the “young immortals” aren’t really the “rugged individualists” ideologues like to pretend. They won’t contribute into our health insurance system, but they’re ready to benefit from it in an emergency. (Guess who ends up paying for treating those without insurance who can’t pay for such care? The rest of us do!)
The mandate is one way around that problem, but here’s a “modest proposal” as an alternative. Reverse “Reagan’s Law”. Instead, if you don’t have insurance, or a current, verified, net worth statement proving you can pay for treatment, the hospitals can literally “leave you on the curb to die”. I’m confident that after enough well-publicized deaths the problem of “young immortals gaming the system” will disappear, one way or the other!
JulieS wrote on November 15, 2010 2 11:55 am: “I don't understand why Wyoming was able to preserve women's sufferage by refusing to become a state unless this was permitted when Utah was made to repeal women's sufferage. Did the Congress just fake Utah out? How do you justify removing personal rights?”
I think you’ve got your facts wrong. (I’m relying on Wikipedia here, so be cautious about this.) As I understand it, Utah granted women suffrage while it was still a territory. Congress has the ultimate legislative authority over territories, and thus could reverse that policy. (Apparently, it was done because Utah women voted in favor of polygamy.)
I don’t know anything about Wyoming “refusing to become a state”. It seems to me that as a state it could grant suffrage free from Congressional meddling. Wikipedia reports that by the end of the 19th Century both Wyoming and Utah (as states) granted women the right to vote.
As for removing personal rights: what’s granted by law (even by the Constitution) can be removed by law (or by amending the Constitution). Justifying such actions is another matter. But humans are adept at justifying wrongdoing.
Robert Gordon D... on November 15, 2010 @ 12:11 pm asked: “If the tenth amendment gives ‘powers’ to states and people, why is it called a ‘Bill of Rights’ if ‘powers’ is not ‘rights’?”
Let’s not get bogged down in semantics. The guest was referring to the fact that the Tenth Amendment refers to powers, not rights. However, the other amendments known as the “Bill of Rights” do use that word. For example, the Ninth Amendment states: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
By the way, I’ve always felt this undercuts one of the conservatives’ favorite arguments against Roe v. Wade, that there’s no “right to privacy” enumerated in the Constitution.
I think the Constitution speaks for itself:
Section 8 Articles I -- Powers of Congress:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United ''States;''
(note: for the Welfare of the ''States,'' not the people -- i.e., the Congress takes care of the States, the States take care of the people)
Then the rest of the Powers for Congress are listed:
To borrow money, regulate Commerce, Naturalization, Bankruptcies, coin Money, Weights & Measures,
Punish counterfeiting, Post Offices, copyrights & patents, punish piracy and offenses
against the Law of Nations, war powers, jurisdiction over Washington DC and Federal Forts,
Magazines, Arsenals and dock-Yards.
Then the 10th Amendment states:
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.
It doesn't take a Philadelphia lawyer to understand this.
Dear elkojohn:
PART ONE
It may not take "a Philadelphia lawyer", but it certainly takes someone with a greater knowledge or understanding of American History, Law, and the English Language than you possess. (Or, rather, someone who doesn't let ideology get in the way of facts.)
Let's start with a cute bit of sophistry you employ, that the phrase "general welfare of the United States" refers to the welfare of the States themselves, not the people living in those states. Really? Then I suppose our military only exists for the common defense of the States as well, and the people living in those States (American citizens, remember) deserve no defense at all! And what of the payment of debts, which is also mentioned in that same paragraph? Does that include payment of the debts of the individual States, or of the United States (i.e.: of the nation as a whole)? How about the second paragraph of Article 1, Section 8, which gives Congress the power to borrow money "on the credit of the United States"? Does that mean when T-Bills are issued, it's the States (not the United States) that must repay that debt? And what are we to make of your beloved Tenth Amendment? If the phrase "United States" means each individual State (as you seem to believe) then the Amendment makes absolutely no sense. Here, let me "rewrite" it according to your "understanding":
The powers not delegated to the United States (meaning the States themselves) by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Doesn't make much sense, unless the phrase "United States" means something entirely different from the word "States", which of course it does.
TO BE CONTINUED
PART TWO
I note, that you still haven't explained where the power to create an Air Force comes from. Remember, the only enumerated power Congress has is "To raise and support armies . . .; To provide and maintain a navy; To make rules for the government and regulation of the land and naval forces; To provide for calling forth the militia . . . ." (Article 1, Section 8, paragraphs 12 - 15.) No mention of an Air Force anywhere.
Sorry, sir, but the "General Welfare" clause, like the "Common Defense" clause means exactly what standard English mandates: that Congress has the power to 'tax and spend' for those purposes throughout the nation of the United States.
Nice try, but no dice.