Give the States Some Teeth

Think about powers reserved for the states, powers which the federal government in no way have. Can’t think of any? It is incredibly difficult to find many powers, much less any major ones, reserved for states exclusively.

This is all wrong. As a federalist country, separation of powers between the different levels of government is essential. Once upon a time it was true, but today the traditions of federalism are little more than theory. The federal government has expanded at an extraordinary rate, affecting nearly every part of our lives.

What happened to the states?

Our Founding Fathers never wanted it to be like this, and any reading of the Constitution and The Federalist Papers reveals it was never expected. Yet it happened nonetheless.

This is because of a flaw in the Constitution and its checks and balances. Though in theory the federal government stays within its enumerated powers and the states or the people get all the rest, the onus of maintaining this perfect state of federalism is on the federal government alone.

It requires the Congress to not pass any bills which infringe upon federalism. It requires the President to not sign into law any bill which infringes upon federalism. And lastly it requires the Supreme Court to strike down any law which infringes upon federalism.

The odds of this are unlikely in principle. It makes sense that the Congress, President, and Supreme Court would check each other. They get to maximize their power so long as they keep the other two within the parameters of their powers. But what do states have to gain from protecting their rights? Absolutely nothing, as with the revocation of these rights come with hefty bribes in the form of federal grants.

How to change course

We cannot look to the federal government to correct this. What we must do is give states teeth in the form of constitutional amendments so that they may check the federal government and protect their freedom. There are several proposals under debate for how to accomplish this goal.

The first is an amendment repealing the 17th amendment. The 17th amendment ended the practice of having state legislatures pick Senators, instead declaring they shall be picked by popular vote, just as Representatives are. It is no coincidence that since the ratification of this amendment, the powers of the federal government have increased exponentially. Senators are no longer accountable to their respective state legislatures. By reinstating this accountability, states have an avenue to prevent the growth of federal power. This would ensure the Senate is full of Senators hesitant to take away power from the states, and will give the states a voice which must be heard in the federal government.

Of course, states may become corrupt and abuse this power, but this is a possibility with any level of government.

The second is an amendment which allows states to overturn federal laws. How many states should be necessary to do so is up for debate, but 3/5ths is reasonable. Just as the President and the Supreme Court have a check on laws, it is only logical the states should have one as well.

The third is an amendment similar to the second, except it involves overturning for Supreme Court decisions instead. The Court has infringed upon the rights of the states just as much as the Congress and President, while also protecting things like the concept black people not being citizens or that ruling that it is acceptable to put Japanese-Americans in camps. It is safe to say they have a less than stellar record.

The Supreme Court’s record is essentially uncheckable. When the Court chooses to violate federalism, that precedent becomes the law of the land barring any constitutional amendment, which is unlikely to pass due to the stringent requirements super majority requirements behind amendments. Having 3/5ths of state legislatures vote to overturn precedent gives states a badly needed check and ensures if the Court messes up, it may be corrected by the states.

Lastly, an amendment that reforms the amendment process would give states more oversight of the federal government. Right now Article V of the Constitution says there are two ways to amendment the Constitution, either a state convention, which is rare and could risk becoming a runaway convention, or by passage in both chambers of Congress with a 2/3 majority with both options followed by a 3/4 ratification by the states. What this amendment would do is merely reverse the latter process. It would also allow states to propose amendments, and if 3/4 of them ratify it within seven years Congress would be required to vote as well. (They may certainly vote sooner if they so choose.) This would just be another way of giving states a voice when it comes to the federal Constitution, which effects their power immensely.

These four amendments would allow the states to restore federalism, and we should strive to ratify them, whether it be in Congress or a Convention of the States.

 


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