Tuesday's election was a giant civics lesson for our country
"It is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate."
—United States v. Lopez, 514 U.S. 549, 583 (1995)
What the Supreme Court is describing is called "the etiquette of Federalism" or the Founders' structural protection providing an outer limit of national power relative to state and citizen power. As a first principle to our governance system, it is maddeningly complex and elusively subtle.
The Court has always struggled to find the right balance. Virginia's voters just schooled the Court about where that balance is. The new lieutenant governor of Virginia, Winsome Sears, spelled it out in plain language when it came to Democrats' election-season church visits:
We don't need this kind of stuff. I mean, are you encouraged after you hear this so that you can continue worshiping? Why don't you go do that somewhere else?
Virginia's voters said federal power ends where citizen power begins. Virginia's voters said that indirect federal power, implemented through conditional funding of state agencies, will not be allowed to mask any overreach. Virginia's voters said, our children are our children; they are not mere creatures of the state.
So what is this nugget of governing genius the Founders left to us?
Federalism is a tug-of-war applied to governance. The force of compression draws power inward toward centralization; the force of tension pulls power outward toward decentralization. This is an ongoing battle, generation after generation, between the inclination toward the centralized or authoritarian and the decentralized or democratic.
The puzzle was, how would this new nation be governed after it successfully separated from Great Britain? How could personal liberty and citizen power be maintained in a world where foreign vultures were ready to devour the newly independent but weak nation? The answer was to create a congress of thirteen sovereign states, all signatories to the Articles of Confederation. There was no president of the United States.
The Articles honored the loyalties the representatives had to their states. However, in 1783, George Washington warned that extremely decentralized governing power might leave the nation in danger:
This is the time of their political probation, this is the moment when the eyes of the whole World are turned upon them . . . this is the favorable moment to give such a tone to our Federal Government, as will enable it to answer the ends of its institution, or this may be the ill-fated moment for the relaxing the powers of the Union exposing us to become the sport of European politics.
When the Founders devised a new constitution in 1787 that would strengthen the country's defense and deter abuse by other nations, a supremely important issue was how to create a check on the intoxication that national power inevitably produces.
The answer created at the Constitutional Convention was the concept of dividing power, splitting it apart, limiting its most dangerous manifestations at the national level, and placing plenary or general power with the states and ultimately the people.
Issues involving national defense, war, sovereignty, finance, and immigration, among other things, would be concentrated at the national level at full force. Power would be compressed for effectiveness. Regarding most other things where government control is necessary — residents' health, welfare, and morals — the states would assume power, retaining also "police power" over persons in their jurisdiction.
This is Federalism. For the level of power most dangerous to people — the federal level — temperance comes from Article I, section 8, and Article IV, section 4, of the U.S. Constitution, both of which enumerate specific federal responsibilities. Federal responsibilities are limited, but the power to carry them out is complete. Federalism provides a structure for the national strength George Washington thought we needed against the "sport of European politics," without sacrificing the people's liberties and the states' rightful power where the people reside.
As a check on accumulating power at the national level, one of the amendments in the Bill of Rights, Amendment X, says: "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."
Last Tuesday's civics lesson was that voters sensed that elected and appointed officials in Virginia were overwhelming the delicate balance between competing centers of power (state and federal) and the parents' reserved power. When the federal government decided that parents in Virginia questioning curricula in public schools should be federally investigated as domestic terrorists — that was the last straw.
Though Federalism does not create a perfect balance between Tyranny and Liberty, the Founders would be very proud of these Virginia moms and dads. The Founders left us more gifts of statecraft — a course in civics to learn them, perhaps?
M.E. Boyd's Apples of Gold – Voices From the Past that Speak to Us Now is available at www.amazon.com using the title and subtitle.
Image: The opening words of the Constitution.
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