The following is an interview with the Editor on the subject of Federalism:
Question – I don’t think it is taught or generally known that our “Federal” government refers to a unity or federation of independent sovereign states. The tenth amendment to the Constitution provides, “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.” This amendment embodies the general principles of Federalism in a republican form of government. Is this still relevant in America today?
Answer – It is if you believe the Constitution is still our nation’s governing document. Many today, including the liberal Supreme Court justices, believe the Constitution is a “living document” open to reinterpretation with each new generation without going through the required procedure to amend. This view effectively leaves it to nine justices of the Supreme Court to determine how the Constitution should be amended any time their folly decides it should be. I believe the Constitution, as written and legally amended, is the law of the land. That is why I have often called for the states to nullify (not abide by) any ruling of the Supreme Court that is clearly outside the law such as allowing abortions and homosexual marriage. There is nothing in the Constitution about issues such as these and thus the Supreme Court has no authority under the Constitution to override State laws on these issues. Really, even the Federal Government has no authority in these areas because it has not been granted to them.
Question – In the origin of the United States did the concept of Federalism merely carryover from the thirteen original colonies or was it considered a value within itself, such that a majority among thirteen different points of view would reveal the best course? Alternatively, was the intent to limit the power of a central government that could wield power over local matters traditionally reserved to the states?
Answer – Federalism does not involve anything about “majorities”but rather that there is a dual role for a central Federal government and the States as outlined in the Constitution, including the Tenth Amendment. The original Colonies, operating under the Articles of Confederation, were Sovereign States and that remained so even after the Constitution was agreed to as shown in the Tenth Amendment to the Constitution. As there was no Federal government per se under the Articles of Confederation (although a Congress was put in place) Federalism would have started when the Constitution was created and a Federal government established.
Question – Most people may consider the Tenth Amendment to be defunct or at least suspended after the Civil War, but did Roosevelt’s “New Deal” actually give more free rein to an unlimited central government? Marriage was defined for thousands of years as the union of one man and woman, but the Supreme Court changed this recently in spite of the fact that marriage licenses are issued by the separate states. Is the Tenth Amendment relevant is such an issue?
Answer – The tenth amendment was never superseded, even by the Civil War, although Lincoln and the Federal Government of the time certainly trampled all over it by forcing sovereign states back in the Union against their will. This included throwing half of the legislature of Maryland in jail so they would not vote to succeed. As for Roosevelt, he certainly tried to ignore the Tenth Amendment and state’s rights in his New Deal legislation. However, the Supreme Court of the time ruled against him in enough cases, such as the National Industrial Recovery Act, that he tried to add two additional Supreme Court justices and pack the court. For a long time after the Civil War a respect for state’s rights and the Tenth Amendment came back in favor in the courts and nation. Only in more recent times has the Federal government gained more sympathy with the people and power over the States due to our poor educational system and changing national values of the people. The people are increasingly looking for a more centralized power to take care of them and this has begun to thwart our decentralized form of government. Even so, the Tenth Amendment is still regularly considered and sometimes even deployed by the courts so the principal is not completely dead. However, unless the states rise up and assert their rights of nullification the danger grows of the Supreme Court (even more than the Federal government) ruling the land.
Question – Abortion is not mentioned in the Constitution, and regards the heath, safety and morality of citizens of the state. Many state legislatures are passing laws to either limit or expand abortion within their respective states. Do they possess the right to do so under the constitution? Various and different laws exist in the states regarding the right to bear arms. How do such differences among state laws apply to issues such as abortion, when, where, under what circumstances it can be performed?
Answer – There in nothing in the Constitution on these issues, except on the right to bear arms and that to guarantee it, and thus the Supreme Court has no role or power over these issues except to interpret that any laws passed by the State or Federal (as long as they stay in their lane) governments are carried out faithfully. States definitely have the right under the tenth amendment to rule on issues such as abortion, and rule in different ways from one another. See discussion below.
Question – Is it possible to restrain the power of the central government or has the breach become too wide? For example, the Constitution clearly grants to the Executive Branch/President power to administer border protection, as recently ruled in US vs Arizona, but now lower courts are overruling presidential actions with respect to border security. Must every action be sanctioned by nine members of the Supreme Court?
Answer – Yes through Nullification and reasserting of State’s sovereign rights. Each state should be free to operate under its laws on matters not specifically granted to the Federal government in the Constitution. The precedent for nullification may have been set by the “Sanctuary Cities” established (or at least allowed for) in some liberal states. Although some believe immigration is a Federal area of authority, it is not clearly so under the Constitution. I have no problem with states allowing illegal immigrants in their cities if they desire as long as we can restrict abortions and homosexual marriage and round up illegal immigrants in my state. That is the way it should be, but alas, the more conservative states are loath to thwart the Federal rules because they are, well, conservative in nature.
Question – Where do you see these issues and their clash with states rights going in the future?
Answer – Nowhere good. The Federal government has already largely won as the States have little power except on issues that the Federal government does not care enough about to act against them. The ironic thing is that, as the Federal Government usurps the State’s power, the Supreme Court, which has decided without authority that it can rule on the constitutionality of all things, will eventually rule over the Federal Government and then the Constitution will be fully turned on its head.