“It is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government’s arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate.” United States v. Lopez, 514 US 549, 583 (1995).
What the Supreme Court is describing is called “the etiquette of Federalism” or the structural protection contributed by the Founders that provides an outer limit of national power relative to state and citizen power. As a first principle to our governance system, it is maddeningly complex and elusively subtle.
The Court has struggled throughout its history to find the right balance. The voters of Virginia just schooled them regarding where that balance is, with the new Lt. Governor of Virginia, Winsome Sears, spelling it out in plain language. To paraphrase her:
“Don’t come to our churches and tell us what to do. Who are you to tell us what to do? Just leave us alone.”
The voters of Virginia said that federal power ends where citizen power begins. The voters of Virginia said that indirect federal power, implemented through conditional funding of state agencies, will not be allowed to mask any overreach. The voters of Virginia said, our children are our children, they are not mere creatures of the state.
What is this nugget of governing genius the Founders left to us?
Federalism is a tug-of-war applied to governance. The force of compression draws power inward toward the centralized; the force of tension pulls power outward toward the decentralized. This is an ongoing battle, generation after generation, between the inclination toward the centralized or authoritarian and the decentralized or democratic.
The puzzle was, how would this new nation be governed, after separation from Great Britain was achieved? How could personal Liberty and citizen power be maintained in a world where foreign vultures were ready to devour the newly independent but weak nation? The answer was the creation of a Congress of thirteen sovereign states, all signatories to the Articles of Confederation. There was no President of the United States.
While the Articles were true to the loyalties all representatives had to their states, George Washington warned that extreme decentralization of governing power might leave the nation in danger.
“This is the time of their political probation, this is the moment when the eyes of the whole World are turned upon them. . . this is the favorable moment to give such a tone to our Federal Government, as will enable it to answer the ends of its institution, or this may be the ill-fated moment for the relaxing the powers of the Union exposing us to become the sport of European politics.” In a letter, 1783.
And so, in devising a new Constitution in 1787 that would strengthen the country’s defense and serve as a deterrent to abuse by other nations, the issue of how to create a check on the intoxication that national power inevitably produces became an issue of supreme importance.
The answer created at the Constitutional Convention was the concept of dividing power, splitting it apart, limiting its most dangerous manifestations at the national level, and placing plenary or general power with the states and ultimately with the people.
Issues involving national defense, war, sovereignty, finance, immigration, among other things, would be concentrated at the national level at full force. Power would be compressed for effectiveness. Regarding most other things where government control is necessary – the health, welfare, and morals of residents – power would be assumed by the states, who retain “police power” over persons in their jurisdiction.
This is Federalism. For the level of power most dangerous to people – the federal level – temperance is provided in Article I, section 8, and Article IV, section 4, of the US Constitution, both of which enumerate specific federal responsibilities. Federal responsibilities are limited but the power to carry them out is complete. Federalism provides a structure for the national strength George Washington thought we needed against the “sport of European politics”, without sacrificing liberties of the people and the rightful power of the states where the people reside.
As a check on accumulation of power at the national level, one of the amendments in the Bill of Rights, Amendment X, says: “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.”
So, the civics lesson we learned is that voters sensed that elected and appointed officials in Virginia were overwhelming the delicate balance between competing centers of power (state and federal) and the reserved power of parents. When the federal government decided that parents in Virginia questioning curricula in public schools are to be federally investigated as domestic terrorists – that was the last straw.
Though Federalism does not create a perfect balance between Tyranny and Liberty, the Founders would be very proud of these Virginia Moms and Dads. There are more gifts of statecraft the Founders left to us – a course in Civics to learn them, perhaps?
