Federalism Gone

In an excellent article in The New Republic, Sean Wilentz takes to task those who wish to resurrect the pernicious doctrine of “nullification” to thumb their nose at the federal government on health care reform. Unfortunately, Wilentz conflates nullification with the idea of “states’ rights” in general:

Although not currently concerned with racial supremacy, the consequence of their doctrine would uphold an interpretation of the constitutional division of powers that would permit the majority of any state to reinstate racial segregation and inequality up to the point of enslavement, if it so chose.

Is opposition to health care reform at the state level leading to a resurrection of slavery? Really?

That much has been done in the last 100 years to undermine the 10th Amendment is not debatable. That the cause for this was considered just is equally true.

At the same time, in our zeal to improve the lives of American citizens, we have allowed the very concept of federalism to atrophy. Even debating the idea that the 10th Amendment can be redefined so that it can be made relevant in a 21st century industrialized democracy is seen as an exercise in futility.

There are few functions of government that are incompatible to the concept of federalism. While the idea of 50 nuclear regulatory commissions doesn't make sense, there is no doubt that the FDA (just to use one example) could be modified to be an agency that is overseen by a consortium of 50 States and that issued recommendations to the states instead of being an agency that wields the power it currently does. Nobody wants to see 50 OSHAs, but couldn't OSHA be another body that recommended standards to be adopted by states, instead of requiring them?

It is possible to take a hard look at federal agencies and discover a few responsibilities they currently enjoy that might be better performed by states? If it can be done without gutting them, why not try? Shouldn’t states have a lot more to say about how federal lands are used within their boundaries? Those lands are enormously valuable in many respects and yet the states have little say in the leasing and development schemes of the federal government. And it is long past time we take a very hard look at the Department of Education (with a $63 billion budget) and find a way to turn that department into an adjunct to local efforts at teaching our children rather than as a repository for bureaucrats to carve out their petty empires. With educational achievement at historic lows, it is evident that at least some of that money might be better given to states and local school districts to use as they see fit.

The concept of federalism today is a far cry from what the Founders envisioned. They may have written the Constitution for a small coastal republic of 7 million citizens, but were prescient enough to give their creation the revolutionary ability to change with a changing country. Yet the basic concepts, separations and the freedoms granted by the Constitution must remain in place. By deciding that we can simply toss portions of the constitution aside because they are inconsistent with our political ideology puts us in the same company as the former Soviet Union, China, Fidel Castro and Hugo Chavez.

Now that we are a continental nation of 300 million – as diverse and vibrant a society that has ever existed -it is time to re-examine and reinvigorate the founding notion that power shared and dispersed among many is the bulwark against which no force can threaten our liberties. Resurrecting the ghosts of the past to discredit this notion should be met with the contempt it deserves.