Amendment Restoring Federalism   Leave a comment

The Founders feared concentrated powers and so created a federalist system.  Contrary to modern progressive spin, even the Federalists at the Constitutional Convention were not big government advocates (with the possible exception of Alexander Hamilton). They were federalists in that they believed the states, which formed the union, retained the strong position in the relationship and informed the “federated” government of its duties and obligations. That formulation of power — from states to DC and not the other way around — was the standard for about 80 years. We were not a nation, so much as a federation.

The term “federalism” has been demonized since the Civil War, relabeled “states’ rights” and usually forced to walk lock-step with slavery and the Confederacy. States’ right has been painted as evil and inherently abusive and anyone who questions that mindset is deemed “separatist”, “racist” or “unAmerican.”  The tactic has worked. The word “federalism” invokes passionate emotion in a day when so few Americans have any idea of the history of federalism or even of the Constitution.

Federalism is about states’ rights, yes! But it is also about individual rights. We are all, or could be, closer to our state and local governments than we are to the national government. Our Founders understood this and yet, for about a century, the federal government has increasingly sought to homogenize laws throughout all the states rather than allow for regional variations.

In 2011, the Supreme Court ruled unanimously in Bond v. United States that “by denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”

And yet you need to look no further than the EPA regulations on “clean” air to see that the homogenization of laws throughout all the states violates the liberty of individuals living in Alaska. Ultimately, the federal overreach rests with an interpretation of the Constitution that our founders would not recognize.

The powers “reserved to the states” under the 10th amendment are functionally non-existent if the Constitution’s enumerated powers are infinitely capricious. The 10th amendment doesn’t tell us what powers belong to the states, but its message is clear — the federal government has limited and enumerated powers, the states have all the rest and the states are required to exercise vigilant enforcement to keep the federal government in its place.

Yet, in 1985, a 5-4 court ruled in Garcia v San Antonia Transit Authority that “state sovereign issues — are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power.”

In other words, the judiciary is unwilling to limit federal power so beg Congress to do it.

Does any of us really think Congress will limit the power of the federal bureaucracy? Mark Begich is my senator — he who advocated for a carbon tax that would give ultimate power over commerce.

Article V is the people’s means to force reform where reform is needed. The only other non-violent alternative to strengthening federalism is simply to emigrate to some other country and hope things will be better there. I think that has about as much chance of working out as Mark Begich representing the people of Alaska.

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