Recently, someone advocated the dissolution of the federal government of the United States, insisting that the states could manage themselves. It also suggested that the federal government has usurped power and taken away the rights of states. Let’s consider a few things.
There is no doubt that the federal government has become what Jefferson didn’t want, and that was a tyrannical central government, much akin to the monarchies and aristocracies of Europe. Unfortunately, I will accede that this has been the case, and I have never in recent essays denied what my constitutional law professor claimed, that almost every decision by the Supreme Court has gone the way of the federal government. When in doubt, the federal government always wins, for the most part. The most egregious ruling was Gonzales v. Raich, which ruled that growing marijuana in one’s backyard for medical use was a federal issue. Sandra Day O’Connor bravely stated that it was not, but hers was the dissenting opinion.
Justice O’Connor stated one of the precepts of federalism quite well, when she wrote in 2005: “We enforce the ‘outer limits’ of Congress’ Commerce Clause authority not for their own sake, but to protect historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of power fundamental to our federalist system of government… One of federalism’s chief virtues, of course, is that it promotes innovation by allowing for the possibility that ‘a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.’” This is federalism at its finest, where the federal government is restrained, and the states have the right to experiment both socially and economically. Very few people of any intelligence would argue that the federal government needed even more power.
Let’s consider some historical precedents. One of the more salient and yet often overlooked Supreme Court rulings was Barron v. Baltimore, and don’t feel bad if you have never heard of it. Barron v. Baltimore was a Supreme Court ruling that the rights given by our Constitution to the citizens did not apply to the states. In 1833, in a unanimous decision, Chief Justice John Marshall ruled that: “the first ten amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them." Essentially, the states are not bound to guarantee the rights offered by the federal government. In later decisions, after the Fourteenth Amendment was passed, the Supreme Court has applied most of the rights of the Constitution using selective incorporation. While Barron v. Baltimore has been mostly overruled, it remains a precedent. You do not have the rights you thought you have, according to the Constitution; the rights outlined in the Constitution do not apply to the states. Where, with the exception of the District of Columbia, can you go in America where you are not in a state?
President Abraham Lincoln, in many ways, ignored the Constitution. Later rulings, however, decided that in a time of war, the Constitution has limited authority. Lincoln suspended the writ of habeas corpus, where an incarcerated citizen could be brought before a judge and grounds for their detention shown. Lincoln imprisoned around 1,400 citizens whom he considered to be dangerous to the Union, and did not allow them the right to appear before a judge to be charged or released. Lincoln incarcerated those people for what he considered the preservation of the Union. In a state of war, the president has exceptional powers, and Lincoln used them. In the end, as Lincoln himself put it in his Second Inaugural Address, we should live “with malice toward none, with charity for all” to live a single nation again. Slavery was by no means the only issue of the American Civil War, and Lincoln wanted most of all to save the Union, and he did so. That Lincoln preserved the Union using unconstitutional means is unquestionable. William Tecumseh Sherman’s March to the Sea was the unleashing of the federal government upon ordinary citizens and the origin of “total war.” Sherman was one of Lincoln’s favorite generals.
For some time it has been the position of the Republicans to favor the rights of states and the Democrats to favor the increase in the power of the federal government. Yet to describe the position of both of those parties as one being for federal power and the other against federal power is in my mind an oversimplification. Republicans are mostly “pro-life” also known as “anti-abortion” and believe that the federal government should make it illegal everywhere by federal law, and some of the states who lean more towards the Republican party try and try to limit abortion by state statute. The same goes for marijuana. The staunch Republicans would like to see the states compelled to enforce strict federal marijuana laws. I’m not here to argue abortion, and we can save marijuana for another essay. Neither issue has a clear resolution. All I am saying is that Republicans don’t want a great deal of federal power impinging on the states, unless, of course, that impinging supports their ideological position. The Republicans support strong anti-abortion and strict drug laws to appeal to their conservative base, and at the same time argue that the federal government has too much power. It is time they realized they can’t have it both ways.
Allowing the states to go their own way in terms of citizenship will never work. California’s state and local debt is $1.3 trillion. To suggest that their liberal position has nothing to do with that debt would be foolish. The number of non-paying illegals seeking medical attention has bankrupted several hospitals in Southern California, and yet California seeks to make many of their cities “sanctuary cities” where federal citizenship is ignored. The states cannot make decisions such as this, especially when they seek federal money to support their liberal policies. As I have suggested many times, simply cut off all federal funding to “sanctuary cities” and see how long they last. The federal purse strings are very powerful. The “sanctuary cities” would be like a teenager who “knows everything” about the world and sets out to “make it on their own.” They would be crawling back rather quickly. If people in the “sanctuary cities” didn’t have the funding for medical care, which is a large federal program, then whatever damages done would be the responsibility of the “sanctuary cities.” In fact, insisting that all recipients of federal funding should be forced to comply with federal regulations or face paying for all of it themselves should be a policy. You want the money, then you comply. States like California are attempting to make federal policy, in clear violation of our Constitution. Further, to protect those violating federal law is nothing less than conspiracy by the government to violate federal statutes.
The U.S. economy is far too big for each individual state to handle, though there are issues that can be let up to the states to determine. The United States has not achieved as much economic success as we have by allowing states to dictate economic policy all on their own. (This is why we have the Interstate Commerce Clause.) I am in favor of a smaller federal government, but I am not in favor of the states dictating their own economic policies when they affect other states. Refer back to Justice O’Connor’s description of federalism: “One of federalism’s chief virtues, of course, is that it promotes innovation by allowing for the possibility that ‘a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.’” If you significantly impact the other states, your right to experiment ends.
In many ways, the federal government is the moderator in all of this, and has been for some time. If it doesn’t cross a state line, then it is not the business of the federal government, and Justice O’Connor wanted that precedent to remain the gold standard. I also want the states to comply with federal rights and statutes, and limited in their abilities to create or enforce laws that violate our Constitutional rights, or impact other states.
Regarding “nullification” of federal laws, there exist means by which the states, if they can reach a majority, can change them constitutionally. The federal regulatory agencies can implement regulations without the consent of Congress, and if the states (via Congress and the Senate) had the stones to change that, then they certainly have the means. Reeling in the regulatory agencies is just another task our members of Congress choose to ignore. In many ways, we have the government we deserve, by not goading our representatives into changing the broken system. President Trump has reversed much of the legacy of the Obama administration, much to the chagrin of the Democrats who lauded those changes. As for presidents who understand the power of the presidency, I would offer up Richard M. Nixon, who understood the presidential powers rather well. Nixon, by the way, was in favor of and approved the Environmental Protection Agency, an accomplishment for which far too many Democrats refuse give him credit. Nixon, as well, understood the health care needs of the American people, and attempted to solve that problem way back when. “That men do not learn very much from the lessons of history is the most important of all the lessons of history.”-Aldus Huxley