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.
The words of the 10th Amendment to our beloved Constitution of the United States.
What the 10th Amendment and in fact the Constitution generally purposes the delegation of certain rights and powers only to the federal government, limiting those powers, making them specific, and as a result, restricting the federal government from usurping any additional rights or powers which are expressly granted to or reserved for THE STATES or WE THE PEOPLE. Hands off, federal government, and allow the states, then 13 and now 50 and the people therein, to exercise their rights, enumerate their powers within their borders and develop lifestyles and approaches to issues and problems as they see fit.
But the federal government, including House, Senate, President and the Judiciary have functioned, especially in recent years exactly the opposite. Not only has the federal government usurped powers never intended by the Constitution or the Founding Fathers, but there is now an ongoing contest between the branches of government which creates in so many ways an imbalance of powers and the exercise thereof in unconstitutional ways. The most notable imbalance occurs with the Presidency. The first Bush, then Clinton, then the second Bush, then especially Obama, and now Trump continue the growth of the Presidency and oftentimes, think many, the exercise of unilateral authority through Presidential orders and vetoes to accomplish policy objectives. The Constitution never intended the Presidency to be so powerful, operate in such a unilateral fashion, nor the Congress House and Senate to be so inactive even indifferent and so divided, and certainly not the Judiciary to be so activist and involved, as it is today.
Many of the issues that recent Presidents have tried to decide at the national level through Executive Orders are best resolved at the state or local levels. In this era of fierce partisan divisions, all sides are beginning to see the virtues of our federal system accommodating differences and encouraging experimentation on issues such as immigration, law enforcement and education at the STATE levels. The exercise of that Constitutional authority and rights granted by the Constitution to the states can produce state solutions and resolutions to problems and issues, different from the federal government and promoting diversity, creative thinking and problem-solving for the benefit of the states and the people, and preventing the continued encroachment of the federal government. Remember again, my fellow Americans, the 10th Amendment protects states’ rights and it prohibits federal actions that commandeer state and local officials and legislative action taken. The Founding Fathers did indeed intend to allow the states and local governments to pursue a range of different policies or matters within what used to be called their POLICE POWERS. That is, the authority of the states to regulate behavior, maintain order and promote the public good within their own territory. The framers of the Constitution considered federalism the very best way to protect liberty and diversity of opinion, as well as to defend political minorities from national tyranny and concentrated federal power.
But in the pre-Constitution days and weeks, the debate raged among the framers as to what form the division of powers would take. Alexander Hamilton, brilliant statesman, passionately urged the national government to assume more powers and to assert them aggressively against the states. On the other hand, Thomas Jefferson and his close ally James Madison resisted this centralizing impulse pointing to the rights reserved to the states under the 10th Amendment and the limits on Congressional, Presidential and Judicial power. That debate regarding expanded or restricted federal power continues today. So-called Hamiltonians on the one hand and Jeffersonians on the other exist in every party, every state and even among we the people.
Brilliant Supreme Court Justice Louis Brandeis was a most proud Jeffersonian. Brandeis praised the states as LABORATORIES OF DEMOCRACY. He stated:
“It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory and try novel social and economic experiments without risk to the rest of the country.”
In short, states, do your own business within your own borders, the federal government notwithstanding.
Former Chief Justice Taft of the U.S. Supreme Court stated the following:
“The diffusion of power between the national and state governments serves to defend us all against the danger of sudden gusts of popular passion.”
Other states would be impressed with such experiments and follow suit or observe failures and dangers and move in different directions. But the bottom line, said Chief Justice Taft would force the federal government to make better choices, observing an influence by “the diversity of opinion in state governments and learning from them.”
President Ronald Reagan, the great orator, was a supposedly supporter of a Jeffersonian approach and states’ rights, and even more so rights reserved for the people. Get, Reagan famously said, government “off people’s backs,” let them live, let the economy run free market and let the states counteract the federal government. But at the same time, Reagan was a forceful President, issuing Executive Orders and otherwise utilizing the powers of the Presidency to get things done. Perhaps, Reagan set the tone for the succeeding five Presidents and showed them, even encouraged them to utilize Presidential powers aggressively, and especially so Obama. All such Presidents have tended to amass federal power and use it, rather than to devolve it. At the same time, opposition parties have always defended states’ rights as a way of protecting dissent and their own policy agendas to counteract the federal government and especially the Presidency. Federalism was the antidote especially to a President issuing Executive Orders to implement policies which those Presidents can not persuade Congress to enact. The states, the opposition parties believed were political enclaves which could resist and challenge the President, or the Congress, or even the federal judiciary.
Many believe that the critical issue of IMMIGRATION is a federal matter and should be handled by the federal government only, not the states. But there are many who believe that immigration policies can and should be made at the local state level even if some border states for example might stress enforcement while other states would adopt more permissive immigration (illegal immigration) policies. An example would be California legislation enacted in the year 2013 which in essence constrained police in the state from cooperating with federal immigration agents. Such legislation set precedent followed by other states Democrats in the majority which have themselves began their own movements to resist the Trump Administration’s immigration crackdown.
On the other hand, in a decision decided by the U.S. Supreme Court, the former great Justice Antonin Scalia wrote the following:
“What most would consider the defining characteristic of sovereignty, the power to exclude from the sovereign’s territory people who have no right to be there”
Would in fact be null and void if there was only one federal policy which applied to all states. Let Arizona do what’s right for Arizonians, Texas for Texans, and California for Californians, so thought Scalia and many others with him.
JEFFERSONIAN AT THE CORE.
In fact, some states are actively pursuing immigrants to come, live and work in their states, unlike Arizona or Texas. Governor Rick Snyder of Michigan, a Republican, supports a proposal which would attract some 50,000 highly skilled immigrants to Detroit. There is work to be done in that city and to rebuild it, says Snyder. Congresspersons in Ohio and Wisconsin advocate the very same policy, proclaiming that states should be able to handout thousands of guest worker visas to those, including immigrants, whom they think most worthy. Perhaps they follow Scalia who encourages the states to do what is right for them with regard to immigration WITHIN THEIR VERY OWN BORDERS.
Recently, Attorney General Jeff Sessions ordered federal prosecutors to pursue the toughest possible sentences even for low level drug crimes. That is so with regard to federal offenses only. But such a policy, contrary to California and other Democratic states, could well do harm to ongoing experimentation at the local and state levels to determine policies better suited to the circumstances of that state and that particular part of the country and its economy. Such a policy, in short, would be harmful to the concept of FEDERALISM.
Attorney General Sessions has gone even farther with respect to local police and police departments. The federal government has monitored certain police departments where there have been rising racial tensions and an increase in violence and murders. Sessions announced that the federal government will back away from the Obama Administration’s strategy of monitoring and involvement. Sessions claims that federal involvement exacerbates the problems and the Attorney General believes that the withdrawing of federal oversight could help to shape a new consensus and new opportunities for relationship. Police departments, says Sessions, need the autonomy to build trust in their own communities while at the same time, being held to rigorous standards of accountability by local and state authorities with respect to upholding Constitutional guarantees rather than federal officials.
Policing has always been state rather than a federal responsibility. The most innovative new strategies in law enforcement have come from localities dealing with practical problems on the ground. Local police departments operate in many different ways to enforce law and order and to strike the right balance between privacy and public safety. They are far more capable of doing so, says Sessions, than the federal government or any of its agencies.
And then there is education. Such an area has been traditionally left to the states to decide, prioritize and implement. The Trump Administration has struck a blow for federalism by launching a review of Obama-era regulations and guidance for school districts for the end purpose of deregulating and once again empowering the states with respect to local education. Trump’s Executive Order directs Education Secretary Betsy DeVos to modify or repeal measures that she considers to be FEDERAL OVERREACH. Said Trump about the Executive Order:
“For too long, the government has imposed its will on state and local governments. The result has been education that spends more and achieves far, far, far less.”
If in fact such deregulation occurs, then states will once again assume their rightful position to decide the educational principles for their citizens.
Former Governor Jeb Bush of Florida agrees, echoing Jeffersonian sentiment, Bush stated the following:
“The state laboratories of government should have ample chance to innovate with scores of new ideas and policies to spark economic growth and improve education to lift people out of poverty and lift up the middle class.”
That they should, and state control of education would be critical in implementing those goals.
Perhaps a more controversial aspect of education policy is the recent debate over bathroom policies for transgender students. For some reason, neither President Obama nor President Trump has been able to motivate Congress to deal with this issue. Because of such congressional inaction, both Trump and Obama have attempted to fill the void through Executive action. In fact, as with all issues national or local, if Congress abnegates authority and responsibility, a President would have no other choice but to decide and exercise through Executive Orders what he thinks right for the country at large. With President Trump especially, many believe his Executive Orders would favor federalism and the states over the federal government and they encourage him to act accordingly.
Eventually, all such matters would be decided by the United States Supreme Court. That court, now fully constituted with nine justices, may indeed return more power and prerogatives to the states as the Constitutional principle of federalism would have it. The court may decide to “keep social issues local” and avoiding as one scholar stated:
“A war of all against all.”
It seems true that a rich diversity of preferred lifestyles can only be achieved at the local (state) level. Elevating such issues to the national level for decision and uniformity may well be a recipe for more contentious, bitter attitude and debate and with the continuation of perhaps the greatest problem in America today:
The end result is that for the good of America and its citizens, federalism and state autonomy must be revived and respected. That seems the only real way that all sides can peacefully co-exist in today’s political environment. Our society is so diverse in so many ways, so bitter, contentious and divided that uniform policies, whatever they are, are in fact doomed to failure in so many parts-states of our country. Federalism seems to be the only way that all peoples can peacefully co-exist in today’s political environment. There is political dysfunction everywhere, and especially on Capitol Hill. There is in so many ways an inactive, do-nothing Congress to the chagrin of everyone. There now comes an activist federal court system, and especially the Supreme Court, ready to strike down the unilateral actions of Presidents and otherwise, directly or indirectly make policy, finding at every viable turn new Constitutional rights never intended by our forefathers. We live in a day and age of rabid POLARIZATION. We strongly disagree with each other, in most such areas there is no compromise, or dialogue, and the divisiveness and bitterness only grows. We are eating away, eroding our very own freedoms, active if unknowing participants in the erosion of our Constitution and its precious rights. We are indeed, America is:
A HOUSE DIVIDED
And as we know, a house divided can not stand. Federalism, states’ rights, 10th Amendment powers establish 50 political entities and enclaves which can experiment, form policies and priorities, and otherwise develop lifestyles for their citizens, right for them, no matter what other states do. No longer would it be a matter of winner takes all, but rather American citizens exercising their freedoms within their own state borders. Critics of course think that would create chaos nationally. But federalism as a viable political concept has never really been tried. It is now no longer conceptual but actual and factual. It is at work and there are federalistic states in the lead, championing federalism including California, Texas, Arizona, Ohio and Michigan to name some with others sure to follow. Such state actions break gridlock, move policy decisions forward, and allow citizens to live with certainty within their borders, controlling their very own lives. Right or wrong, it is what the forefathers intended. It is what our Constitution requires. It is THE 10TH AMENDMENT of the Constitution at work. It is, say the forefathers, what America should be. It is what is right for the people (the 9th Amendment) and for the states (the 10th Amendment). It is the Constitutional way to live.
DO YOU AGREE?