A key element of the United States Constitution is the division of responsibility between the states and the national government, which we call federalism. In a recent Defending Ideas podcast, two Utah legislators made a strong case that federalism could contribute to solving some of our most pressing political problems, like hyper-partisanship, abdication of lawmaking responsibility by Congress, and more.
Federalism is implicated in a wide range of current controversies, like the conduct of elections, business regulation, even immigration. Sometimes, though, the way we talk about it obscures its nature and purpose.
A slightly misleading phrase often used in discussions of federalism is “states’ rights.” This implies that the federal and state governments are at odds and must have protection from one another. While it is true that either of these levels of government may overstep and inappropriately take on tasks assigned to the others, our constitutional system of federalism conceives of the states and national government as working in a complementary way. Both have the same goal of ensuring liberty and self-government and derive their authority from the same source: the people of the United States.
This arrangement is at odds with some ways of characterizing the relationship between the levels. States are not the basic element of society, delegating authority to the national government to perform some tasks for the convenience of a loose league of 50 absolute sovereign powers. Neither are they administrative units of the national government, carrying out its tasks as a subordinate “employee.”
Rather, the people are the ultimate sovereign. As Professor John McGinnis summarizes, drawing on the historian Gordon Wood:
by locating ultimate sovereignty in the people, the Constitution allowed the Americans to delegate powers as they chose, thereby dividing sovereignty. This innovation, which Wood aptly describes, enabled the Framers to “split the atom of sovereignty,” granting enumerated powers to the federal government while leaving the residuum to the states.
This means that the core rights preserved in our system are those of the people to self-government and liberty, but that both the national government and state governments will have essential roles (and limitations) in securing them.
This is done, as Alexander Hamilton explained, in at least three ways. First, by “affirmative grants” of authority to the national government to carry out specific responsibilities. Second, by “negative clauses prohibiting the exercise” of some national power by the states where “concurrent jurisdiction” was “deemed improper.” Third, by the fundamental principle that “all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor.”
In an excellent article, Professor Robert Natelson explains that the drafters of the 1787 Constitution relied mostly on “general implication” to lay out the “reserved powers of states.” The Tenth Amendment then created a “general exception” that clarified the states’ authority. He also points out that the debates over ratification had the salutary effect of “enumerating” many of the responsibilities of the states. These include regulating the militia, local government, real property, family, criminal law, civil justice, religion, education, social services, and agriculture.
So, instead of focusing on the rights of the states or the prerogatives of the national government, it would be more accurate to discuss the responsibilities of each and to take seriously the provisions of the Constitution that delineate these responsibilities.
In future posts, I will talk more about what states are for – what they are supposed to do – and how the preservation of their ability to carry out their responsibilities advances the constitutional values of unity, justice, order, prosperity, and enduring liberty.
