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Recalibrating the Power Balance

(Page 3 of 3)

What would America look like if strict federalism, as conceived by the framers of the Constitution, was restored today?

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The theory is that all issues not related to interstate trade, the national economy, national defense, or foreign affairs would fall to the states for regulation and legislation. Many regulations and policies that violate federalist principles, such as Social Security and Medicare, would most likely remain in place.

But a meaningful push toward federalism's principle of dual sovereignty could have a significant and immediate effect on the reach of congressional legislation. Such hot-button matters as gay marriage, gun control, school vouchers, affirmative action, and perhaps eventually abortion would be decided at the state or local level, with the eventual emergence of a patchwork across the nation of different approaches to each issue.

Proponents of states' rights say the prospect of 50 states grappling with tough issues in different and experimental ways is a better guarantee of liberty than having Congress attempt to decide once and for all how a controversial issue will be resolved.

It would also undercut the influence of special-interest groups by forcing them to focus on 50 different governments across the nation, rather than one government in Washington.

Mr. Zywicki of George Mason University says that states are better suited to decide controversial issues such as gun control or gay marriage. "If the federal government voted [on gay marriage], it would probably vote to preempt it," he says. But if the issue is left to the individual states to decide, there is a better chance that laws in at least some states will protect the interests of a threatened minority, he says.

Others challenge this view, noting that most major civil rights advances are the result of federal intervention rather than on the initiative of state governments.

States' rights advocates make their strongest case when they complain about the unrestricted expansion of federal power: When students open fire in a Colorado high school, Congress immediately debates a national gun-control measure. When a rash of high-profile car hijackings grab headlines, Congress responds by making car-jacking a federal offense.

Making a federal case of ... everything

"The expansion of the federal bureaucracy, together with the decline of the doctrine of enumerated powers, gets Washington to the point where it could conceivably run every aspect of everyone's life," says Thomas Odom, a constitutional-law professor at Oklahoma City Law School.

"There used to be a phrase that went: 'Don't make a federal case out of it.' The notion was that it was something truly exceptional that would get the attention of the federal government," Mr. Odom says. "You don't hear that so much anymore because, frankly, everything is made into a federal case now."

John Baker, a constitutional-law professor at Louisiana State University in Shreveport, agrees. "Too many people want the nanny state. They want the federal government to solve all their problems," he says. "It can't happen. But the politicians are always there to promise that he or she will do it for them."

Where the chips ultimately may fall remains unclear.

"For some of the die-hard nationalists and centralists, they jump up and down and say that the Supreme Court is going to send us back to the pre-New Deal Roosevelt era," says John Shannon, a senior fellow at the Urban Institute in Washington.

But Mr. Shannon says the court's actions are still relatively tame. "What they will do is at the edges where Congress is passing laws where they have stretched the interstate-commerce provision beyond all limit. They blow a whistle now, but it is way, way out at the margins."

Whatever the final outcome, some analysts say the court's action points up the genius and durability of the American system of government.

"This is America at its best," says Richard Nathan, director of the Rockefeller Institute of Government at the State University of New York at Albany. "This is what is wonderful about our political system: that it is so flexible in ways that are not radical and reflect changing ideas that can be expressed in the body politic, and then later on we may do something different."

(c) Copyright 2000. The Christian Science Publishing Society