America Has Lost the Federalism the Constitution’s Framers Established

The framers of the Constitution were opposed to establishing a strong, centralized federal government.  They were more comfortable with strong state governments and a small federal government that performed only carefully articulated duties—17 of them to be exact.  This is why they chose federalism as the form of government for the United States.  Federalism as established by the framers divides government power between the federal government and the states.

In theory federalism can tilt in favor of the federal government or state governments concerning where the most power resides and which specific powers reside where.  The framers clearly intended that the most power would reside with state governments.  But their strong-states version of federalism has long been a thing of the past in America.  We now have precisely what the framer’s feared: a strong federal government and weak state governments. By centralizing the lion’s share of government power in Washington, D.C., politicians—aided and abetted by the American people—have not just undermined the intent of the framers, they have done what the framers tried to guard against: removed government farther from the people and made it less accessible, less responsive, and less accountable to the public.

As originally envisioned by the Constitution’s framers, the duties of government would be divided between the federal government and state governments with both sharing a few concurrent powers.  For example, the federal government was originally responsible for national defense, currency, the postal system, foreign affairs, and interstate commerce.  State governments were responsible for chartering of local governments, education, public safety, registration and voting, and intrastate commerce.  Concurrent powers as originally established included lending and borrowing of money, taxation, law enforcement, chartering of banks, and transportation.

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The federal government has grown well beyond the stated intentions of the framers for several reasons: Power hungry presidents and members of Congress; a federal judiciary that frequently legislates from the bench; wars, natural disasters, economic calamities, and terrorism that have resulted in demands from the American public that the federal government “do something;” and a growing dependence of American citizens on the federal treasury for their sustenance.  As a result of all of this the federal government has burgeoned beyond anything the framers envisioned or that they intended.

One does not have to look far to find duties that have been either taken over or invented by the federal government that fall well outside of those prescribed for it in the Constitution.  Just recently the federal government’s foray into healthcare via what has come to be called Obamacare is a power found nowhere in the Constitution.  The same can be said about the Supreme Court’s redefinition of marriage to include same-sex marriage.  Executive orders are not in the Constitution, but they have been used by presidents since Washington (his were called proclamations) to expand the power of the presidency.  The concept of executive privilege is not in the Constitution but has been used by presidents since Washington to broaden presidential power.

Judicial review has become the stock and trade of the Supreme Court, but it appears nowhere in the Constitution.  Judicial review came into being in the landmark case Marbury v. Madison when Chief Justice John Marshall declared the Judiciary Act of 1789 unconstitutional, thus expanding the scope of the Supreme Court’s powers exponentially.  The size of the Supreme Court was not established in the Constitution.  The framers specified that there would be a Chief Justice and other Justices, but not how many.  Originally there were six members of the Supreme Court and the number has been as high as ten.  The number nine that currently exists was decided in 1869 increasing the size of the Supreme Court from the original six.  The Supreme Court expanded its reach into religion when chose to adopt the concept of a wall of separation between church and state; a concept that will not be found anywhere in the Constitution.  The justices borrowed the phrase from the writing of Thomas Jefferson, once again expanding their reach beyond the limits prescribed for them by the framers.

The biggest offenders when it comes to expanding the federal government have been the executive branch and Congress.  Congress has aided and abetted chief executives in expanding the federal bureaucracy exponentially either by directly assisting or by failing to stand up to presidents when doing so was called for.  The framers did not envision the alphabet soup of government agencies that have sprung up over the years and then dedicated themselves to self-preservation (e.g. U.S. Departments of Education, Labor, Commerce, etc.).  Just the EPA alone with its ever-growing mountain of federal regulations is bigger than anything the framers envisioned for a federal government.

Federalism that tilts toward the states—as envisioned by the framers—ensures that government is more accessible, more responsive, and more accountable.  Federalism that tilts toward the federal government as ours does now makes government inaccessible, non-responsive, and unaccountable.  The framers were prescient in their fears of an all-powerful federal government and they were right to try to preclude such a thing when developing the Constitution.  They would be aghast to see the nightmare their dream has become.

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