The Concept of Federalism
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By Aaron J. Biterman. September, 2000. Question: Justify the concept of federalism. My Response: There has been an ongoing debate from the time of John Adams onward about the strength of the federal government vs. that of the state, and the debate still continues with passion even today. The debate largely centers around individual interpretations of the Constitution. The Tenth Amendment states: "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." By its terms the Amendment tells us nothing about which powers are delegated to the federal government, which are prohibited to the states, or which are reserved to the states or to the people. To determine that, we have to look to the centerpiece of the Constitution, the doctrine of enumerated powers. That doctrine is discussed at length in The Federalist Papers. But it is explicit as well in the very first sentence of Article 1, section 1, of the Constitution ("All legislative Powers herein granted ...") and in the Tenth Amendment's reference to powers "not delegated," "prohibited", and "reserved." Plainly, power resides in the first instance in the people, who then grant or delegate their power, reserve it, or prohibit its exercise, not immediately through periodic elections but rather institutionally--through the Constitution. The importance of that starting point cannot be overstated, for it is the foundation of whatever legitimacy our system of government can claim. What the Tenth Amendment says, in a nutshell, is this: if a power has not been delegated to the federal government, that government simply does not have it. In that case it becomes a question of state law whether the power is held by a state or, failing that, by the people, having never been granted to either government. It is the doctrine of enumerated powers, then, that gives content to the Tenth Amendment, informs its theory of legitimacy, and limits the federal government. Power is granted or delegated by the people, enumerated in the Constitution, and thus limited by virtue of that delegation and enumeration. The Framers could hardly have enumerated all of our rights -- a problem the Ninth Amendment was meant to address. They could enumerate the federal government's powers, which they did to restrain that government. The doctrine of enumerated powers was meant to be the principal line of defense against overweening government. The Bill of Rights, added two years after the Constitution was ratified, was meant as a secondary defense. "After many years of neglect, Washington's policy elites once again are talking about the importance of federalism in the American system of constitutional governance. Federalism -- which uniquely determines the relationship between and among the jurisdictions of the federal, state, and local governments -- is perhaps most succinctly described in the words of President Reagan's Domestic Policy Council Working Group on Federalism: a 'constitutionally based structural theory of government designed to ensure political freedom and responsive, democratic government in a large and diverse society.' Federalism has long been considered by many to be the ultimate guardian of liberty in a large and diverse society." (Foundation Reports, January 27, 1999.) Federalism is a concept deeply rooted in the history of the United States and has great Constitutional relevance to this very day as states fight to become better and better while still helping to improve the federal government. And despite the fact that federalism is recognizable and justifiable, the debate will continue on for generations to come. |
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