When Federalism Fumbles the Ball

What are we to do when our government refuses to perform its constitutional obligation?

Some would argue, and argue effectively, that the revolutionary concept that spawned America’s independence was not freedom but federalism. It is through federalism that the United States has truly achieved long lasting freedom. It is federalism that has kept absolute power, and subsequently absolute tyranny, away from any one particular person or body. The system of checks and balances and separation of powers has forced Congress, the presidency and the courts to a level of accountability not seen in human history.

But what many people do not realize about federalism is that it creates a working relationship between the national government and those of the states. In concept, it is a two way street. It is not, as some would assume a top down process, where the federal government reigns supreme. On the contrary, federalism was designed to create responsibilities and barriers between the two governments.

Perhaps a history lesson will put this into perspective. As most people know, the Constitution that we currently live under is not the first for the United States. The Articles of Confederation served as the union’s first constitution until 1788, when it was replaced by the current document. A Confederacy is a loose association of independent states, the governments of which wield more power than that of the national government. A modern example of a Confederacy would be the European Union. The EU does not claim sovereignty over its member nations. French law is still (or should be) the supreme law of the land in France. The same goes for the United Kingdom and the other members of the EU.

However in the summer of 1787, it was obvious that the Articles of Confederation were simply too weak to keep the fledgling nation together and free. If one races through a history book, one might get the impression that the Constitution was an easy sell – it was not. From its signing on September 17, 1787, the newly created Constitution underwent scrutiny from 13 states fresh off of a protracted and bloody war against their mother country, mainly to loose its self from the oppression of a tyrant. To ratify a new governing document that would take many of their freedoms away from the state level and consolidate them in a new, stronger federal government was not the objective of many who had fought for the cause of freedom.

The proponents of the Constitution, mainly through the Federalist Papers, eventually convinced all 13 states that their new government would not be one that ruled from the top down, but rather would be a symbiotic partner with all states in the union, creating many universal freedoms, but also leaving the lion share of the decision-making to the states.

This is what federalism is. Through the expressed, denied and implied powers of the Constitution of the United States, obligations of law are separated, shared and commissioned to the respective levels of government for the proper governing of its people.

But what happens when one of those governments – state or federal – is not living up to those obligations? We are quite used to (unfortunately so) the federal government superseding state’s obligations when it feels that said state has not lived up to its task. This is a disturbing trend in and of itself but now we are faced with the opposite. What are states to do when it is obvious that the federal government will not, for one reason or another, fulfill its constitutional obligations?

States like Arizona, Georgia and Alabama have recently answered that question, particularly when it comes to the subject of immigration. In the Constitution is the federal government’s responsibility to create laws of uniformity in regards to immigration. However, it is obvious that our federal government, like so many other issues, has decided to kick the can down the road in regards to the issue of illegal immigration from our southern border. For well over 30 years, this has been an issue for these border states and now it has become one of security for the people of those states.

The current violence on the border of Texas and Arizona has once again brought the problem of a porous border to the forefront. When those states become so overwhelmed with the criminal and financial burden placed upon them due to the negligence of the federal government, what constitutional recourse do they have? States, like the ones mentioned above, have been forced to take matters into their own hands, passing laws that simply require the enforcement of federal statutes that are already on the books.

There is a concept in our country known as the doctrine of nullification. Basically, this says that the states do not have to go along with federal policy or law that they believe is a violation of their constitutional rights. Currently, there are 26 states, that are using the doctrine of notification to declare President Obama’s healthcare plan unconstitutional, citing that healthcare should be a state’s rights issue, as per the 10th amendment. But how does a state nullify negligence? Such is the burden of a country that is slowly allowed its federal government to usurp power from the states and centralize it in Washington DC over the past 100 years.

They say that all politics are local, yet the slow, decades long march towards socialism has created a society that looks to the Potomac for all of the answers to its problems. As Ronald Reagan said, “government isn’t the solution, it’s the problem”.

The solution, of course, is and will be up for debate for a long time. But one thing is for sure – we got ourselves into this mess over a long period of time and it will not remedy itself overnight. The constant vigilant watch and occasional call to arms is the responsibility of every well educated individual who sees and understands what our founding fathers and framers intended for our great country. Rugged individualism, localized control and the understanding that the old adage is indeed old but true – absolute power corrupts absolutely.