Loss of American Federalism   Leave a comment

It’s clear to me that the federalist system the Founders set up somehow went off the tracks and we are now in a nationalistic system where the government in Washington DC feels it can dictate to the states without fear of electoral reprisal.

I’ve tried to figure out what happened. Yes, you can say the federal system started to falter during the Civil War when Lincoln and what remained of Congress decided that states were not allowed to secede from Union. And, that was a big hit to federalism, but it was a temporary and limited hit. It gave the tyrants ideas, but it didn’t completely destroy the system.

In 1978, Alaskans began to seriously consider secession as an option to “fix” our DC problem. Instead of trying to work it out with our abuser, we wanted to move out on our own. We were alone. The “sagebrush” rebellion was a sign that federalism was on the rise and might end the union – or at least return it to the federalist system we were originally structured under. But something happened. In 2009, California Congressman Pete Stark felt comfortable to say “the Constitution pretty much allows Congress to do whatever it wants.”

How did we get there? Inquiring minds want to know. And, I found it.

Garcia v. San Antonio Metropolitan Transit Authority  http://www.heritage.org/initiatives/rule-of-law/judicial-activism/cases/garcia-v-san-antonio-metropolitan-transit-authority was a 1985 US Supreme Court decision that holds that Congress has the power under the Commerce Clause of the Constitution to extend the Fair Labor Standards Act, which requires that employers provide minimum wage and overtime pay to their employees, to state and local governments.

In 1976 (a mere nine years before) the Supreme Court held that the FLSA could not constitutionally be applied to state governments.

Yeah. The moral of this story is that what’s “constitutional” can change with the political wind which can shift in less than a decade. And, the Supreme Court is no less political than Congress; it just shifts slightly more slowly. Both were five-four decisions. The 1976 case was the Burger Court. William Rehnquist wrote the majority opinion, Harry Blackmun concurred and Justices Brennan and Stevens wrote separate opinions. The first ruling was that Congress may have the authority to regulate individual businesses under the Commerce Clause, but not state governments which have the protection of the 10th Amendment.

Nine years later, still under the Burger Court, Blackmun switched sides, rejecting his own prior opinion that the Constitution’s recognition of the sovereignty of the states necessarily implies limits on the power of the federal government to regulate their employment relations. In the majority’s view, the constitutional grant of authority to Congress to regulate interstate commerce was not qualified by any implied limitation on the right to regulate the activities of the states when they engaged in interstate commerce. They ruled the Commerce Clause invalidates state regulations that interfere with commerce, while the Supremacy Clause allows Congress to preempt state laws that conflict with federal law in this area. According to the majority, the framers believed that state sovereignty could be maintained by the peculiar structure they adopted: a Senate in which each state was given equal representation, regardless of its population, an electoral college that gave the states the power to choose electors, and the indirect election of Senators by the legislature of each state prior to the adoption of the 17th Amendment. Noting that the same Congress that extended the FLSA to cover government-run mass transit systems also provided substantial funding for those systems, the Court concluded that the structure created by the framers had indeed protected the states from overreaching by the federal government.

The dissent (Powell, Burger, Rehnquist and O’Connor) objected to the failure of stare decisis for National League of Cities and the failure to recognize the limiting role of the 10th Amendment.

Although subsequent opinions have tried to put the milk back in the bottle, it’s been difficult to do. The abuse of precedent (stare decisis) and the rejection of the 10th Amendment damages the Constitution by abusing both the Commerce Clause and the 10th Amendment, putting states at the mercy of the federal government even while exercising powers that have traditionally been state functions.

Which just goes to show you that the Supreme Court should not be the arbitrator of what is constitutional.

And, they weren’t originally, by the way. That came during the Madison administration. The original Framers did not intend for the Supreme Court to interpret the Constitution. The original role of the Supreme Court was to vet laws and determine if they passed Constitutional muster. That is a wholly different job than interpreting the Constitution itself.

So, how’d we get here? Politics, as usual.

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