Recalibrating the Power Balance
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On the other side of the debate were advocates of state sovereignty who worried that a powerful national government would eventually undermine the state powers and trample individual liberties. The best way to preserve freedom, they argued, was to sharply restrict national powers and keep most government action at the state, regional, and local levels - areas closest and most responsive to the people.Skip to next paragraph
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Union of 'dual sovereigns'
As a result, the Constitution contains checks and balances, not only among the three branches of the federal government, but also between them and the states. This second system - federalism - is a union of "dual sovereigns," with the states and the national government sharing power and existing on equal footing. The great advantage of federalism to a people who just fought a difficult war to end British tyranny was that it diffused power among different levels of government and provided a safeguard against despotism.
"The point of federalism is to create a level of inefficiency in government," says John Yoo, a constitutional law professor at the University of California at Berkeley. "The people who wrote the Constitution were 18th-century people, and the idea was that you couldn't have independence, liberty, and freedom unless you had limited government. So they made it hard to exercise government power."
But federalism and the vaguely worded Constitution that authorized it also gave rise to a debate over exactly where the line should be drawn between the exclusive powers of the federal government and the exclusive powers of the states. It is a question to which there is no correct answer.
American nationalists take an expansive view of the wording in the Constitution, and view the document as authorizing flexibility to adapt to changing times and modern conditions.
States' rights advocates, on the other hand, adhere to what they see as the strict letter and original meaning of the Constitution. To them, the clear intent of the framers was to sharply limit national power.
Through much of American history, the trend has favored the nationalist view and nation building at the expense of states' rights. More often than not, the Supreme Court played a key role in allowing it to happen.
Most major expansions of federal power came for good reasons - elimination of slavery, efforts to keep the country united in the Civil War, attempts to use national economic power to alleviate local suffering during the Great Depression, federal commands requiring desegregation, and enacting national civil rights laws to attempt to end discrimination and prejudice.
In many of these issues, those chanting loudest for states' rights were also seeking to maintain a status quo in their states that included a legacy of slavery, racism, and discrimination.
The irony is that the Founding Fathers envisioned federalism as a way to protect liberty and civil rights from an overbearing central government. But throughout much of US history, it has been the national government that has played the role of protector of liberty and civil rights in the face of oppressive action or policies of some of the states. It is a juxtaposition that gave federalism a bad name.
But that may have changed. "I think enough time has passed that federalism has lost its negative connotation," says Todd Zywicki, a constitutional-law professor at George Mason University in Fairfax, Va.
Part of it may be a legacy of President Ronald Reagan's attack on big government and the continuing "devolution revolution" - in which Washington is handing responsibilities back to states. Some analysts say the high court is merely following the lead of the rest of the country.
White House holds Rehnquist's reins
Whether the Rehnquist court secures a position in history as the first to sustain a major resurgence of the constitutional principles of federalism may depend entirely on the outcome of the coming presidential election and future appointments to the high court.
"Since these are all 5-to-4 decisions, it is quite possible that if a Democrat wins the presidency in 2000 these cases will all be overruled and the 1990s federalism decisions will all be seen as an aberration," says Erwin Chemerinsky, a constitutional-law professor at the University of Southern California in Los Angeles.
On the other hand, if a Republican wins in 2000 and appoints a conservative justice to replace a more liberal justice, it could mean that the 1990s was only the beginning of resurgent federalism, a mere appetizer to the main course still to come.