Adjusting the Federal Balance
THE American system of federalism is much studied abroad, but sometimes little understood at home.
The Founding Fathers wanted to steer a middle course between what they saw as the tyranny of a king and centralized parliament, and the chaos of the United States' first attempt at a charter, the Articles of Confederation. The confederation's main feature was an extremely weak federal government that couldn't even regulate trade between the states.
The idea was to construct a series of checks and balances to keep power from concentrating in any one location. A broad consensus would be necessary to effect change. The president could veto congressional bills, but Congress could override the veto by a two-thirds vote. The Supreme Court was appointed by the president, confirmed by the Senate, and could strike down laws that did not meet the constitutional test.
Likewise, a balance was struck to keep large states from running roughshod over small ones. The legislature's lower house would feature representation based on population, while the upper house would consist of two senators from each state.
But the framers included another set of checks and balances - the balance between the powers of the federal government and those of the sovereign states. Senators would be elected by state legislatures. Congress could propose constitutional amendments, but three-quarters of the states would be required to ratify them. Two-thirds of the states could demand a constitutional convention. And at the states' insistence, the 10th Amendment, part of the original Bill of Rights, stated explicitly that "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."
Over time, many believe, the states' leverage has been eroded by practice, by constitutional amendment, and by the Supreme Court:
*A constitutional convention has become impractical. Nobody wants one, because such an assembly could reconsider the entire Constitution.
*The federal courts, especially the Supreme Court, have almost always chosen not to apply the 10th Amendment when asked to do so.
*The 17th Amendment changed the way senators are elected: by direct popular vote of a state's citizenry rather than election by the legislature. This removed states' leverage over the Senate and thus over federal lawmaking.
The consequence of this shift in power, many believe, has been the expansion of the federal government and bureaucracy into areas that ought to be left to state and local governments. Its epitome is Congress's requiring states and cities to provide certain services without giving them the money to do so - so-called "unfunded mandates." A new law passed this year by the Republican Congress and signed by President Clinton, a Democrat, is a start in correcting that problem. But a growing movement among state officials and others demands more.
Last week, the executive committees of five organizations representing state officials convened a "States' Federalism Summit" in Cincinnati to discuss ways to redress the balance. The bipartisan meeting called for study of four proposals to strengthen the states' hand:
*A "mechanism" giving states the power to force Congress to reconsider laws and regulations that interfere with state authority.
*A federalism law that would give states a more effective voice in congressional deliberations. This could require Congress to cite a constitutional basis when it passes laws and to justify any preemption of state laws.
*A constitutional amendment that would allow states to propose amendments, subject to ratification by Congress.
*Laws or amendments to prevent Congress and federal agencies from attaching detailed conditions to federal spending grants, regulations, and mandates.
The American Constitution should never be glibly changed. Each of these proposals has advantages and drawbacks and could represent a sea change in the functioning of the federal and state governments. Yet the questions they raise about how well the system works on the eve of the 21st century deserve serious discussion.