In the September 29, 2009 issue of the NYT, the proposed federal health-care legislation finally meets federalism in the article, “In Some States, a Push to Ban Mandate on Insurance.” A number of Republicans in State legislatures are pushing for constitutional amendments in their respective State constitutions to protect their respective citizens from being required by the federal government to buy health insurance or face a stiff fine. Although Tom Emmer, a Republican in the Minnesota legislature, says all he is “trying to do is protect the individual’s right to make health care decisions,” he might be wiser to step back a bit and incorporate the larger view bearing on our overall system of public governance.–namely, federalism. I suspect this crucial overarching level has been floating somewhere below the public radar in not only the health-care debate, but many other issue-specific public discussions as well. To cut to the chase, my point is that relegating or ignoring the impact from particular issue-based legislation on the structure and processes of our (public) governance system is risky, or outright dangerous, to the long-term viability of our polities. Tom Emmer could just of well have said: “All I’m trying to do is protect the federal balance that is necessary to a functioning federal system; the federal government has been consolidating so much power beyond its enumerated powers by adding substantive strings to its spending power that I don’t think the State governments will be able to provide a check on the forming central government in Washington.” He would presumably have to shorten this sentence for public consumption through the media; I have written it out so the contrast is not lost on the reader here. Particular issues will come and go, while we continue to rely on our system of governance to be a viable structure while providing justice and (counterintuitively) protecting the citizens’ rights. Government protecting the rights of its citizenry seems like a contradiction in terms…like a wolf guarding the chicken koop, but the American Founders believed government could engage in that function.
In terms of the eclipse of federalism, I suspect that there is a subterranean and populist-based often unconscious anxiety based on a sense that something basic has gone wrong without anyone noticing it. Perhaps it is like the animals who can sense the advance tremors in the earth before humans can realize that a shift in the earth’s plates is about to occur. If we do get to a completely consolidated central state covering an empire-scale of territory (i.e., inherently diverse in many ways), our descendants could indeed feel a jarring political earthquake from the accumulated pressure pent up over decades from the “one size fits all” nature of a central state governing across a continent. At the very least, if we do want such a polity, intellectual (and moral) honesty would require us to amend the US constitution to repeal federalism here. We would then have to contend with the problems of a republic form at an empire-scale and the risk of a transformation into a dictatorship, but at least we would be focusing on our public system of governance itself–extracting out the interferring issues of the day that do not necessarily care what effect they have on the governance system.
Coming to terms with what we are doing to our public governance system–our structure of federal government that includes the federal and state governments–we would be well advised to better understand the U.S. constitution. In the NYT article, the reporter asserts that the constitution’s supremacy clause “ordinarily allows federal law to, in essence, trump a state law that conflicts with it.” Clint Bolick says that may not be the case, depending on “the strength of the state interest.” Both he and the reporter omit that the supremacy clause pertains only to the enumerated powers that the constitution gives to the federal government. It makes no sense to have enumerated powers if ANY federal law preempts a contravening state law. In the U.S. constitutional convention, King observed of the document, “the most numerous objects of legislation belong to the States. Those of the National Legislature were but few” (Madison, Notes, p. 398). Col. Mason stated in more general terms, “The United States will have a qualified sovereignty only. The individual States will retain a part of the Sovereignty” (Madison, Notes, p. 491). The question is thus whether the federal government has gone beyond its enumerated powers, because it is not supreme, or sovereign, in such extraneous domains that are reserved to the State governments.
The danger of encroachments by the General Government was not much anticipated in the constitutional convention in 1787. The delegates tended to be too absorbed in their own context, tacitly presuming it would endure. Wilson, for example, “did not see the danger of the States being devoured by the National Government. On the contrary, he wished to keep them from devouring the national Government” (Madison’s Notes, p. 85). This lapse is reflected in the document itself, and our parents and grandparents have extentuated the imbalance. For instance, the direct agency of the State legislatures in the federal government through the U.S. Senate–which the founders assumed would enable the State governments to protect themselves and prevent any encroachments from the general government–was compromised by the amendment mandating popular election in place of legislative appointment. As a second example, the umpire of such questions is the Supreme Court, which is a branch of one of the sides (i.e., the federal government). In the convention, Rutlidge said, “If the Supreme Court is to judge between the U.S. and particular States, this alone is an insurperable objection” (Madison, Notes, p. 537). The other delegates should have listened to him and arranged for rotating State Supreme Court Justices to sit on the U.S. Supreme Court. Otherwise, such an inherent structural conflict of interests, along with amendments that have inadvertantly removed some vital cards from our house of cards, evinces the sort of inattentiveness that I submit has compromised the viability of our system of public governance. As Rutlidge warned his colleagues, “As we are laying the foundation for a great empire, we ought to take a permanent view of the subject and not look at the present moment only” (Madison, Notes, p. 551). Similarly, Wilson said, “We should consider that we are providing a Constitution for future generations, and not merely for the peculiar circumstances of the moment” (Madison, Notes, p. 376). Unfortunately, they, and we, and those inbetween us, have failed miserably to follow this advice. Instead, vested interests and serial obsessions on particular titilating issues of the day have monopolized attention. What can be said of a people and its leaders who focus only on the moment? I must admit wondering whether we deserve to succeed.
My own two cents on the health-care issue (notice how I have relegated this issue here!): Congress can appropriate money to give the State for “health-care” and it would be up to the State governments how to spend it. This plan would be consistent with the checks and balences in federalism (and with the U.S. constitution’s enumerated and residual power framework) as well as with the inherent variety across a continent (i.e., empire-scale). Unfortunately, too many people want to impose their particular ideal health-insurance plan across the variety.
Having an empire-scale republic and nation-state scale republics in a federal system requires tolerance. That is to say, the people of Texas may not want the same sort of health-care system as do the people of Massachusetts, and this is not only ok–it is quite natural. To assume that unity requires uniformity is a good way to truncate what is natural and eventually be left without any Union. Ultimately, my plea is for more tolerance and less focus on the moment–meaning a little less selfishness and a little more statesmanship among the citizenry. Our representatives will not rise to the occasion unless we do–this is not to say they can’t. Rather, they won’t, because they want too much to impose.
Source of convention quotes: James Madison, Notes of Debates in the Federal Convention of 1787 (New York, W.W. Norton, 1966). I recommend it to anyone who is interested enough to reflect on our system of government in itself and consider what amendments may be necessary for its long-term viability.