Thirty years ago, federalism, like God and the post-Goldwater Republican Party, seemed on the verge of extinction. All three have since made a remarkable political recovery. But it is the current revival of federalism as a serious principle of American government that seems the most miraculous.
With the same fervor advocates of civil rights attach to the 14th Amendment, Senate Majority Leader Bob Dole of Kansas and the GOP governors have all evoked the 10th Amendment (adopted in 1791) to remind us, "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."
This long-neglected article has become a rallying banner for all who hope the elections of 1994 will usher in a new era of federalism--shifting authority to the states and getting the federal government off our backs and out of our lives.
This animus against national government takes several forms. The debate about welfare is cast as an effort to allow the states to exercise greater discretion over conditions of eligibility. The recent Senate vote to prohibit Congress from imposing "unfunded mandates" on the states suggests that the national government will no longer treat local jurisdictions as its administrative lackeys. And even if a balanced-budget amendment is never ratified, it seems unlikely that the national government will soon undertake the great reform initiatives that began with the New Deal of the 1930s and reached their peak with Lyndon B. Johnson's Great Society.
If a radical devolution of power from Washington to the states takes place, the revivalists preaching the gospel of the 10th Amendment will have worked a political miracle. But their success will have less to do with vindicating a constitutional principle than with converting the current disenchantments of a volatile electorate into a solid political consensus.
To understand why this is, we have to go back to the founding of the Republic in the 1780s, and ask how American ideas of federalism evolved since.
This is no easy matter, for federalism is an inherently messy and ambiguous concept. It assumes that two, or even three, levels of government will operate on one people--each passing and enforcing its own laws and levying and collecting its own taxes. Often the functions of these different levels of government can be easily distinguished. States and counties do not develop weapons systems, while the federal government will not stoop to collect garbage. But in between lies a broad middle ground where national, state and local jurisdictions can and do overlap. Each level of government exercises regulatory powers over the economy; each has authority to levy taxes; each has a court system and bureaucracy that affect our rights and liberties.
Even in 1787, Americans worried that the government proposed by the Philadelphia Convention would reduce the states to hollow jurisdictions lacking real power. The Anti-Federalist opponents of the Constitution regarded its unlimited taxing power as a weapon that would leave the states with few productive sources of revenue. They thought clauses asserting the supremacy of national law would strip the states of their autonomy.
Anti-Federalists had cause for alarm. Such influential Framers as Alexander Hamilton, James Madison and James Wilson held state government and politics in contempt. While they recognized states would remain part of the U.S. system, they hoped to reduce them to "subordinate jurisdictions," mere "planets" orbiting the federal "sun." Madison even hoped the national government would have an unlimited veto over all state laws.
On balance, however, the compromises reached at Philadelphia left the states' jurisdiction largely intact, while allowing the national government to act directly on the people. Once the Constitution was ratified, Madison took it upon himself to ease residual Anti-Federalist doubts with a Bill of Rights that included the 10th Amendment.
But the actual text of this amendment had little import. It neither added nor subtracted any powers from those that the main body of the Constitution had already "delegated" to the federal government, or "prohibited" to the states, or "reserved" to the people. All the 10th Amendment does is affirm that the Constitution has divided powers among the nation, the states and the people; it does not tell us where those lines of division run.
In practice, the Anti-Federalists were wrong to think mere ratification of the Constitution would set the states on the road to extinction. For the next century, they were the active force in U.S. politics--while Washington did little more than deliver the mail, collect a few customs duties, push the Indians west and sell and settle the lands they were forced to abandon. The states were pretty much as sovereign in the 19th Century as during the Revolution. Even the Civil War did little, at first, to erode state power--beyond demonstrating the states could not secede from the union.
By the turn of the century, however, the transformation of federalism was under way. The creation of a national economy generated new pressures for regulation--many coming from corporations that preferred uniform national rules to a patchwork of state laws they would have had to comply with. Two World Wars separated by a Depression brought the national government to the summit of its power; states lacked the responsibility and resources to deal with these problems. Then, the prosperity and the political consensus forged around the Cold War finally gave the United States the vigorous national government Hamilton and Madison had once envisioned.
By the 1960s, scholars seriously wondered if states were withering away as meaningful units of governance. The civil-rights movement had struck a decisive blow against whatever was left of the ideology of "states' rights." The Great Society transferred the real initiative to make domestic policy from state capitals to Washington. State legislatures seemed like sleepy relics of the 19th Century, poorly paid and understaffed, while the expertise and resources available to Congress and the federal bureaucracy grew by leaps and bounds. Under these circumstances, the idea that 19th-Century notions of federalism would again prove attractive was dismissed as fantastic.
But a generation of mounting discontent with Washington, its politics and even its lifestyle, has left the 1960s looking much like the crest of U.S. nationalism. Certainly, all the events that finally converged to give the GOP control of Congress in November can be seen as a reaction against the idea that all public problems merit federal solution. With the Democratic Party under the feckless leadership of a former small-state governor, it is hard to imagine anyone articulating a nationalist vision to counteract the 10th-Amendment enthusiasms of House Speaker Newt Gingrich (R-Ga.) and his acolytes.
So, perhaps federalism, 19th Century-style, is on its way back. But this presupposes Americans agree that they want to reduce government activity at every level, and that the states, in turn, can deliver the services Washington has failed to provide--at such expense, or so heavy-handedly, that we would rather go without. If the states prove incompetent, a volatile electorate may again look to national solutions.
That is why Gingrich is so intent on creating new constitutional rules--like a balanced-budget amendment--that will make it difficult for a new nationalist consensus ever to emerge again.
Yet, federalism, at bottom, is not likely a matter of constitutional principle or 10th-Amendment truisms. It is a formula that enables the American people, with some difficulty, to choose which level of government best serves their interests at any specific moment. The great disputes of this year and next will be about politics first; more time is needed to tell whether the Constitution of the next century will resemble 19th-Century practices more than 20th-Century departures.*