The flourishing of federalism

The flourishing of federalism
Posted: October 31, 2007
1:00 a.m. Eastern

Focus on the federal government is relentless, with constant press coverage of issues before Congress, the progress of the war in Iraq, the debate over national health care and who might become our next president of the United States. Despite this excessive attention paid to the national government by many, the U.S. Constitution established a system of government wherein the individual states retained all powers not specifically granted to the federal government. Lost in this national tunnel vision is the crucial role the states play on the stage of national events.

For example, the recent attempt by Congress to pass an immigration "reform" bill has been well publicized, while pre-emptive actions taken by several state legislatures to deal with the problem have been far less noticed. Although it is within the power of the federal government to regulate immigration, the states retain power over local issues affected by illegal aliens.

Oklahoma's Taxpayer and Citizens Act, which will take effect this week, makes it a crime to transport, hire, harbor, house or conceal illegal aliens, and effectively ends state benefits to those who cannot prove they are legally in our country. The law further punishes employers who knowingly hire illegal aliens, and it enlists local law enforcement agencies in helping to check the immigration status of individuals with whom they come into contact on the job.

In April, Wisconsin began enforcement of a new law that prohibits illegal aliens from obtaining driver's licenses. Tennessee has also begun requiring proof of legal presence to obtain a license to drive, and the Tennessee Legislature has voted to allow law enforcement officers to effectively act as state immigration police. In fact, according to the Washington Post, "no fewer than 1,404 pieces of immigration-related legislation were introduced in legislatures during the first half of 2007, with 182 bills becoming law in 43 states."

Earlier this year, the U.S. Supreme Court made headlines with its ruling in Gonzales v. Carhart, which upheld a congressional ban on partial-birth abortion, but it has been the states that have been the driving force behind banning abortion. Last year, South Dakota led the charge by proposing a ban on most abortions. While the measure was defeated at the polls, it reflected the responsibility the states are assuming in changing the tide on this issue. Parental notification requirements, waiting periods and required counseling measures have also been adopted in several states. While these measures certainly have not ended the nightmare of abortion-on-demand, the states are attempting in the only way they know how to address the Supreme Court's unlawful exercise of authority over the right to life. And six states – Illinois, Kentucky, Louisiana, Mississippi, North Dakota and South Dakota – have enacted "trigger laws" to declare abortion illegal as soon as Roe v. Wade is reversed.

And while candidates for president bicker about their positions on marriage and homosexuality, the states have taken positive action to protect the institution of marriage. Forty-two states have passed laws prohibiting same-sex "marriage," and 27 states have approved amendments to their state constitutions to further protect marriage. Twenty-three of those amendments were passed after the infamous Massachusetts Supreme Judicial Court decision in 2003 that legalized homosexual "marriages" in that state.

In areas where the federal government has no authority it is altogether proper that the states take matters into their own hands. This is exactly what the Founders intended. As James Madison explained in Federalist No. 39, the new governing system created by the Constitution was neither fully national, in the sense of being a consolidation of the states, nor fully federal, in the sense of being a confederacy of sovereign states. Under our Constitution, Congress possesses what is known as "plenary" power in certain constitutionally enumerated areas, meaning the states have no authority to act in these areas. In some areas, such as taxation, the federal and state governments possess concurrent powers, where both forms of government have authority. But in all instances wherein the power of the federal government is not specifically defined in the Constitution, the states have sole authority to act for the health, safety and welfare of its citizens.

The Founding Fathers believed that such a composite system of government would provide maximum benefit to the people. Alexander Hamilton, in a speech to the New York Ratifying Convention, stated that the balance between the national and state governments was of the "utmost importance" to the success of the union. He explained in Federalist No. 9 that the Constitution, "far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty ... and leaves in their possession certain exclusive and very important portions of sovereign power."

Far from stirring up trouble or interfering with the national government, states perform a proper constitutional duty when they protect the rights, liberties and property of their citizens. Thomas Jefferson once advised, "[T]he States can best govern our home concerns and the general government our foreign ones. I wish, therefore ... never to see all offices transferred to Washington, where, further withdrawn from the eyes of the people, they may more secretly be bought and sold at market." Perhaps we see a flourishing system of federalism in our land today because so many things are secretly being bought and sold in Washington, D.C. Obviously, we need more federalism, not less, in today's political climate.
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