The Bat-Signal

Constitutional Considerations
Legal experts add their insights into the Constitutional aspects of  redefining the states' role in American government.  State legislators comment on the political prerequisites.

"One thing that has hampered discussions about federalism is the assumption it's a conservative/liberal issue," argues Brannon Denning, a professor at Samford University's Cumberland School of Law. In fact, acrimony over the states' role in the constitutional structure runs far deeper than today's ideological spectrum. "The problem is that the [Supreme] Court's jurisprudence is still haunted by a theory of state autonomy that has its roots in the ratification debates and some of the classic decisions of the Marshall and Taney Courts," writes University of Michigan law professor Roderick M. Hills, Jr. It's "a theory of state autonomy that was rooted in contempt and distrust for state officials," he says.

By Teddy Roosevelt's time, Washington was well on its way to displacing state governments in the popular mindset—largely because it was what the nation wanted and needed at the time. The 17th Amendment, the New Deal, and two world wars accelerated that trend. By 1954, constitutional law expert Herbert Wechsler had all but dismissed any independent role for the states by asserting that they are adequately protected in the federal system "by their crucial role in the selection and composition of the national authority."


Federal intervention in the civil rights movement, the Great Society, and marquee achievements such as NASA's space program cemented Washington's authority and omniscience—a number of ominous portents (the Vietnam War, ballooning federal deficits, and the cost imperative of TV-ad campaigns) notwithstanding.

The Supreme Court sought to throw a Constitutional lifeline to the States through a series of decisions including National League of Cities (1976), Garcia (1985), Lopez (1995), and Printz (1997), but to little or no avail.

Relentless fundraising has enabled the two dominant political parties to put a hammerlock on the national electoral process, while state legislatures, squeezed by fiscal pressures, have retreated to filing the occasional lawsuit and lobbying a disinterested Congress.

"The core of state autonomy is the preservation of state autonomous governance, especially as to allocating revenue," says Hastings Law School Professor Calvin Massey. Unsurprisingly, an insolvent national government has been reluctant to share the government's broad fiscal base, and more importantly, its "full faith and credit" —now supporting $9 trillion worth of debt.

As Denning notes, "everybody has pretty much resigned themselves that a judicially mandated federalism will only be episodically enforced."

A state that must be divided

Largely unnoticed by the media and the electorate, though, political momentum has shifted to the states. Congressional gridlock and a self-absorbed Oval Office have thrown the national government into reverse, while the states have found their political gear.

Despite unending budget battles in several larger states, state legislatures have generally been major innovators in health care, the environment, and economic development. They have passed immigration laws where Congress has stalled, and funded K-12 education despite the structural deficiencies of No Child Left Behind.

At a theoretical level, Wechsler's theory has been largely discredited says George D. Brown, Robert Drinan, S.J., Professor of Law at Boston College Law School. "Everyone recognizes that federal officials view themselves as federal officials." In short, senators now see themselves as national figures, and representatives are beholden to local party primaries—not state legislatures.

"Not only is the premise of this [Wechsler's] view clearly at odds with the proliferation of national legislation over the past 30 years," former Supreme Court Justice Lewis Powell wrote in Garcia, but "a variety of structural and political changes occurring in this century have combined to make Congress particularly insensitive to state and local values."

Yet, the states remain reluctant to sound the charge. Neither they nor the feds, however, may have a choice for much longer. That the states can act as  Brandeis' "laboratories of democracy" is fine, but the present situation may require more.

"Today, the states have the amount of power that Congress has given them. Constitutional provisions that have strengthened the states have died," says Henry P. Monaghan, Harlan Fiske Stone Professor of Constitutional Law at Columbia. He adds, "The remedy to reasserting the states' role is not going to be found in the Constitution."

While the question is generally framed in Monaghan's terms, i.e., "what Congress allows the states to do," the real challenge has become "what Congress urgently needs the states to do."

"The Founders had no intention for federal lawmakers to be operating Medicare plans or public schools," says former Illinois State Senator Steve Rauschenberger. Similarly, Utah Senate Majority Leader Curt Bramble notes, "We have the federal government paying money to build a bridge somewhere in Mayberry. Why?"

As these elected officials suggest, among the many reasons Congress can't act or acts improvidently, one thing is clear: they have taken it upon themselves to do everything. That may be politically appealing; and, the Supreme Court has been powerless to stop them legally, but structurally—read Constitutionally —that has clearly become a very bad idea.

Enter the states—or not. In  a political structure reflecting the Framers' belief in Adam Smith's "invisible hand" and free market competition, the states have been oddly silent. Why? Policy Today's Roundtable II (See Cover Story, p.5) offers multiple clues. Lawmakers themselves, however, provide the ultimate answers.

Texas State Senator Leticia Van de Putte: "You've got to have the will; that's the first thing. There are so many other fires that legislators have to put out every day, but the number one most powerful thing is the will to intervene. We can all complain about it, but what are you willing to risk to affect change?"

Washington State Rep. Sharon Tomiko-Santos strikes a similar chord: "Do we have the will to be more aggressive in our behavior? While we focus on our relationships with our partners in Congress, we cannot forget the principles of federalism, including the separation of powers and checks and balances."

And finally, as Maine Senator Libby Mitchell puts it, "I guess we have to get our own act together." As Pogo said, "we have met the enemy, and he is us."