The new federalism: back to Jefferson Davis
President Reagan's much vaunted ''new'' federalism is not new at all but a throwback to the period of the Confederation (1781-89) when the 13 states did indeed claim to be ''sovereign'' and the national government was all but impotent.
In his inaugural address Mr. Reagan said that ''the United States did not make the states, the states made the United States.'' Now, in his first State of the Union message he has returned to the same fallacy, asserting that ''rights belong to states.'' That is just what Jefferson Davis, who never accepted the verdict of Appomattox, wrote as late as 1881:
''No such political community as one people of the United States ever existed or yet exists. No political action by the people of the United States in the aggregate has ever taken place or can ever take place.''
President Reagan does not go quite that far, but he is moving in that direction. Is his administration really prepared to repudiate the preamble of the Constitution of the United States, which proclaims that ''We the people of the United States, in order to form a more perfect Union, do ordain and establish this Constitution''? Is he prepared to forget his oath of office, ''to preserve, protect and defend the Constitution of the United States''?
The fundamental and pervasive error of this administration is its failure to understand the Constitution of the United States, or to be familiar with the evolution of the American constitutional system from John Marshall to Justice Warren. It is the failure to grasp the elementary, but revolutionary, concept that in the US it is the people who are sovereign; that rights belong to people, not to states; and that all governments, state and federal alike, have such powers as are allotted to them by the people - and no other.
And who are the people? They are not the people of one state or another, but of the United States. As Chief Justice Marshall said in Cohen vs. Virginia (1821 ): ''In war we are one people, in making peace we are one people. In many other respects the American people are one, and the government which is alone capable of controlling and managing their interests, is the government of the Union.''
Have we now, after almost 200 years of union, decided that we are not one people but 50?
The Reagan program is totally wanting in any coherent or consistent political philosophy. In some areas it is powerfully nationalistic and centralizing, notably in the military - throughout our history the most centralizing force in our political and economic life. To suppose that we can have a highly centralized defense economy and a decentralized civilian economy is folly; it is worth remembering that in the great contest of 1861-65 it was the government which accept%d nationalism that won, and the government which embraced states' rights which went under.
In other areas than defense and security - education, conservation, civil rights, commercial and corporate regulation - the administration has retreated into localism, and in some of these into anarchy.
What is most wanting in the current Reagan program is a grasp of the distinction between central authority and local administration - a difference the Founding Fathers understood very well. Yet the principle here is clear enough. In the words of Justice John Marshall, ''whatever concerns more states than one'' is the responsibility of the national government and, as he made clear, of the national judiciary.
There is almost nothing of importance now in our society, our economy, our environment, our culture or our security, that does not ''concern more states than one.'' All our major problems are national: energy, inflation, employment and unemployment, health, welfare, housing, crime, and, needless to say, security itself.
Does this mean, as Harold Lask asserted 50 years ago, that ''federalism is obsolete''? Clearly in some areas it is just that: in defense, social security, perhaps even in environmental protection, justice, and education. In these, and other realms, our constitutional system will eventually have to conform to national standards and embrace national supervision. In other areas, however, federalism is still viable, though more on the community or the regional levels than on the level of state action.
The most pressing issue, and one which this administration has studiously avoided, is how to develop a working relationship between the imperatives of national interest and mechanisms of local and state administrations. Not a new problem, this; after all, it was anticipated in the Constitution, and it developed, for more than a century, in the administration of public lands, education at every level, transportation, agriculture, banking, and manufactures. Thus we have had national control of public lands, but much local administration; national legislation on schools, universities, and research, but locally administered; national support to canals, roads, and railroads and aviation, but a considerable degree of state and local administration; national aid to agriculture and to agricultural research, but with farmers themselves, or the regional experiment stations, pretty well in control of what they would plant; national tariffs to aid manufactures, but state incorporation of industries, and so forth. The process of partnership was triumphantly vindicated by the Tennessee Valley Authority where ultimate authority has always been national, but administration from the grass roots up through every level of administration in seven states.
Certainly it should not be beyond American statesmanship to work out the principles of partnership between national, regional, state and local authorities in other areas as well as they have in such enterprises as the TVA, the Columbia Valley Authority, the Rio Grande Authority, and so forth.
There are four areas in which most civilized nations from Sweden to Japan have established national standards: social security, including health and medical care; education; penal codes; and environmental protection and preservation. Clearly all Americans, from whatever state, have an equal claim on education and health benefits. What, then, is the logic of discrimination? Children from every state will grow up to vote for presidents and members of Congress; all are entitled to move from state to state - move either with their ignorance or their intelligence.
All the males, and possibly the females as well, will be subject to national service. How sobering to recall that in World War II some 40 percent of all male draftees in three Southern states were rejected on grounds of health or intelligence, while the percentage of rejectees from Iowa and Minnesota was less than two percent!
There is the same objection to 50 different penal codes. Why should what is innocent in Ohio be visited with 20 years of imprisonment in West Virginia? Why should the mere possession of marijuana be visited with heavy penalties in one state, and perfectly legal in others? There are no such variations between Sussex and Yorkshire in England, or between Normandy and Burgundy in France. As for environment, neither floods nor soil erosion nor air pollution respect state boundary lines.
Much is to be said for localism and for regionalism, and much, too, for the role of private associations. But the Reagan administration is not saying it. It is subverting nationalism without nourshing localism.