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A new power center in the U.S: The states

It was just a question of time

April 2013

Formally, there are three branches in the U.S. federal government: Legislative, Executive, and Judicial. These branches together execute the principles and requirements laid down in the U.S. Constitution. But there's a fourth power, greater than these three: the only power that can change the Constitution: The states. Watch for them to rise.

For several decades, the U.S. federal government has been gathering to itself greater and greater power over the lives of Americans, at the expense of the states. By use of such devices as the "commerce clause" of the Constitution and the concept of "revenue sharing," the feds – far away in Washington, DC – have multiplied their involvement and their control over our daily lives. The American Constitution envisions a power-sharing arrangement – a federated arrangement – between the states and the federal (central) government. But this arrangement is not clearly defined, the states have been unorganized and have not presented an effective front against power incursions by the feds. The saying, "Nature abhors a vacuum" is nowhere more true than in politics. When our Washington politicians discover that the states are not effectively protecting their turf, they move in and grab power. It's inevitable; it's the nature of politics; it's human nature and we can't entirely blame Washington for the result: the states have failed to look after their own interests. I offer some thoughts on how the states can get back in the game and stand up for more local democracy.

Let me say first that finding the proper division of authority between the states and the federal government is no simple task, in fact it must be an ongoing, varying relationship, adjusting to changing needs. But the federal government's intrusion on state power has been so invasive that at this time a revolution in thought about this relationship, backed up by revolutionary action, may be necessary.

What power resides in the states? According to the Constitution, all governmental authority other than that which is specified for the federal government in the Constitution belongs to the states. Theoretically. Now, even though the feds have grabbed a lot of power when the states weren't looking, and the states have carelessly given the feds carte blanche in several constitutional amendments, the states naturally retain a lot of authority in local matters. For most people, perhaps 90% of the laws they have to relate to are state and local. Yet, in both commercial, financial, and environmental matters, as in many other areas (education comes to mind, and recently, health care) regulation by the federal government has become more and more common, and has rarely been challenged by the states. The Supreme Court's recent ruling on the national health care law awarded Congress and the President yet more power – perhaps almost unlimited power – to direct our lives. (See the recent BRJ essay on the Court's creative reading of constitutional provisions in the case of the Health Care Act. The Court's interpretation bears no relation to the intent of the constitutional language, but intent – which has long been at the core of proper interpretation of law – has become a foreign concept for some of the justices when they deal with the Constitution.)

In 1913 the states gave away a significant check on the power of the federal government, when the seventeenth amendment to the Constitution was ratified. Prior to 1913, senators had been chosen by the state legislatures, and were therefore answerable to their legislatures. It's the nature of state legislatures that they will defend their state's power. With the seventeenth amendment, senators are elected directly by the people of the state. This is perhaps an improvement from the perspective of popular democracy, but the point for this discussion is that this action resulted in a significant loss of concern in Congress about the balance of power with the states, and since then power has flowed in one direction: from the states to the feds.

What powers can the states muster vis-à-vis the federal government, if it comes to a show-down? You'd be surprised. The states, working together, could be a real force for genuine federalism, for the idea that the best democracy is that which is closest to the people, for the idea that a federation should give the central government only that power which cannot be effectively exercised at the local level. That was, of course, precisely the idea that kickstarted this country, and while things necessarily change and develop over time, the notion that local democracy is the best democracy has not been shown to be false. The migration of power from the states to the central government may already have reached a point of excess, where it must be checked if we the people are to retain any measure of control over our government.

The greatest power that the states have is one they've completely neglected: They "own" the Constitution. What do I mean by that? That the Constitution is, and was always meant to be, a work in progress, a basis for our laws that would be adjusted and improved as our experience with democracy grows. And that the role of continually improving the Constitution – of offering and approving amendments – is placed by the Constitution almost entirely in the hands of the states. Congress also has a role in the process, but it's largely ministerial, though it may propose amendments to the states. In other words, if two-thirds of the state legislatures agree on an amendment, it will be formally debated at a constitutional convention, and if 3/4 of the states (i.e., 38 states) agree, the deal is done, the Constitution is amended. Congress is here essentially a bystander.

The power to amend the Constitution is potentially an enormous power. It can exceed the power of Congress because the states, by exercising the power of constitutional amendment, can not only vacate and amend national laws, but can limit the power of Congress as well as define their own power. The states, working together, can thus function as a kind of "super-congress." And yet the states have not been alert to this power. So what are the chances that our sleepy state legislatures will awaken and assert this power? Let's see: The state legislatures are populated with wanna-be congressmen. Like politicians everywhere, they crave power, perks and publicity. They're irritated that the politicians in Washington get more press. If given a plausible plan to gain additional power, and thereby national exposure, there's roughly a 99% chance that the average local politician will jump at it. Here's a plausible plan that should get them hopping:

The first step must be to have a mechanism for discussion and communication. Fortunately, this already exists in the "National Conference of State Legislatures," a body headquartered in Chicago that concerns itself mainly with lobbying Congress on issues of interest to the states. It has not concerned itself with the Constitution - the states' forgotten responsibility. The NCSL has ten standing committees dealing with issues such as environment, education, commerce, public safety, etc. The committees have representation from all the state legislatures, and serve as important sounding boards for ideas in these areas. It could be that an 11th committee, on the Constitution, is the way to go to kickstart the project that will ensure that the states present a strong, cohesive voice in the federal system. The existing structure of the NCSL could allow the states to promptly initiate this project.

The notion of "states' rights" has picked up some unsavory baggage through the years, initially with its use as a slogan by the slave-holding states before and during the Civil War. Their argument was that each state's legislature had the right to "nullify," within that state, laws made by the federal government. Their purpose was to counter federal anti-slavery laws. Again in the mid-1900s the slogan was used by southern segregationist political parties. But in spite of this unsavory history, the idea that the states do have rights and powers that ought to be respected for the sake of workable democratic government is valid and important. I suggest that an organized program by the states, working through an organization like the NCSL, to examine the Constitution and propose amendments to preserve and restore the interests of local government could be a political game changer, potentially of benefit to the U.S.

It may seem that even if such an effort were mounted by the states, the likelihood of getting 75 percent concurrence among the states on any meaningful amendment is slight, given the mutual antagonism of the political parties. But there are issues where the state-federal power struggle may trump the partisan divide, and constitutional amendments have been adopted 27 times before. I wouldn't bet against the states discovering, and eventually employing, their neglegted power of de facto control over the U.S. Constitution to begin to right the power balance with the federal government.

© 2013 H. Paul Lillebo

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