The Decline of American Federalism

Friday, August 15, 2014 by Jonathan R. Gibbons in

Politics

Introduction: The Unique American System of Government

On October 18, 1787, New York Judge Robert Yates, writing under the pseudonym of Brutus (Ketcham 2003, 269), wrote the following in his first essay arguing against ratification of the United States Constitution (USC, Constitution) drafted at the Constitutional Convention of 1787 (CC):

History furnishes no example of a free republic, anything like the extent of the United States. The Grecian republics were of small extent; so also was that of the Romans. Both of these, it is true, in process of time, extended their conquests over large territories of country; and the consequence was, that their governments were changed from that of free governments to those of the most tyrannical that ever existed in the world. (Ketcham 2003, 276)

James Madison “The Father of the U.S. Constitution”

Yates invokes Montesquieu– a beloved and inspirational political philosopher of many of the Framers –in arguing that a republic is best when it is small in both geography and population. When writing his essay, Yates pointed out that the United States (U.S., America) contained just shy of three million people which were to be inappropriately represented by the new federal government. He held profound concerns of inappropriate representation at the federal level as a result of population growth. These concerns were not only justified, but in fact underwhelming compared to the current lack of federal representation. According to his figure, at the cusp of the ratification of the USC, one federal representative represented less than 30,000 citizens, whereas today one federal representative represents over 700,000 citizens. Stated differently, if U.S. citizens had the same federal representation in the U.S. House of Representatives (House) today, as they did in 1789, there would by approximately 10,000 representatives in the House. The famous American revolutionary exclamation that there should be, “no taxation without representation,” should penetrate the conscience of all watchful patriots when contemplating this reality. This is yet, only one concerning prediction that Yates and others (Ketcham 2003, 319) held, which indeed came to fruition. It’s paramount that we revisit the debates had between CC delegates to better understand the purpose of the federal government and the decline of federalism.

The genius of the Framers is that they designed America to be a government of balanced powers both within the federal branches of government, and also between the federal and state governments, in order to resist tyranny. Legislation is slow and often stagnant in America by design, not by accident or malfunction (Jacobson 2013, 689). Stagnation is part of the design which prevents the dominance by a majority and/or dominance by a single sovereign. As Abigail R. Moncrieff quips, “Congress can regulate more quickly and efficiently than the states. There is someone who can regulate more quickly and efficiently than Congress, too: King George III. The benefit of diffusing regulatory power is that it checks against governmental abuse and tyranny” (Moncrieff 2012, 303). Moreover, despite the lack of federal representation and the decline of federalism, America has not become a dictatorship because of both the Bill of Rights (BOR), and the very checks within the federal government which are also supposed to exist between the federal government and the states as well. This system of federalism, which protects liberty, provides the crux of this paper’s theme, the author’s assimilation of political science studies, and the core thesis posited in the final sentence of the next paragraph.

America is in trouble and the USC is in need of alterations to more clearly define the role of the federal government to meet the needs of a new generation of Americans facing problems the Framers could not foresee in some instances, and ones that some of them chose to ignore or reject in other instances. More state autonomy is required on various issues, but the argument that smaller “states rights” government is always better ignores the realities of contemporary socio-economic problems. It ignores the empirical reality of negative externalities (Friedman 2006; Hayek 1994) which imperil, not only multiple states (Moncrieff 2012), but in some cases the entire planet. The Framers intended a balance between the federal and state governments, not an all-powerful federal government or collection of all-powerful state governments, but unfortunately this balance is dwindling. American federalism has declined in favor of the federal government serving as the main agent of the people’s democratic will, endangering representative democracy and liberty, while imploring the necessity of constitutional reform.

Federalism and the Framer’s Intent

Immediately following the drafting of the USC in 1787, those delegates who supported the new Constitution for the U.S. wrote a series of essays published in major newspapers (Madison & Hamilton & Jay 1987). These supporters are known as the Federalists. Those who did not support the drafted Constitution are known as the Anti-Federalists and they published a series of essays in opposition to ratification of the USC (Ketcham 2003). Yates was one of the delegates at the CC who refused to sign the final draft of the USC and was hence one of the Anti-Federalists. He represented New York, just like Alexander Hamilton, but he, unlike Hamilton, was strongly opposed to ratifying the USC for fear it would destroy the state governments. James Madison, Alexander Hamilton, and John Jay, the Federalists, refuted many of the Anti-Federalist’s arguments by arguing that the USC did not dismantle the state governments, but that it granted the new federal government specific powers and left the majority of other governing tasks to the individual states.

It should be noted that Hamilton was especially fond of a singular federal authority and indeed has been accused of wanting to simply reinstate a form of monarchy at one point during the CC (Bruns 1986). Madison, conversely, wanted to preserve the state governments, but also to empower a new federal government with the tools necessary to handle problems encompassing all of the states. This appears to have been the intention of most of the Framers (Bruns 1986). The Federalist Party which was supportive of a vastly superior federal government, born after ratification of the USC by Alexander Hamilton, should not be confused with the positions of the Federalists who sought to persuade the states to ratify the USC. Indeed, Madison formed the opposing Democratic-Republican Party along with Thomas Jefferson in opposition to Hamilton not long after ratification of the USC (Schaffner 2010, 19-21). Nonetheless, both Hamilton and Madison wrote extensively in their essays that arguments of Yates and other Anti-Federalists were unfounded and that the newly drafted USC would not enable a complete destruction of the state governments. In hindsight, Madison was perhaps duped by Hamilton as Hamilton’s actions following ratification of the USC were anything but supportive of the state sovereignty and stringent federal roles he exclaimed in his essays (Schaffner 2010, 19-21).

The Anti-Federalists ultimately lost the debate and the USC was ratified, however they won in a very important respect. The Anti-Federalists argued vehemently that the USC should include a Bill of Rights (BOR) as was common of all the state constitutions throughout the states (Killian & Costello & Thomas 2004). Yates explained the newly drafted USC would, “… annihilate the state governments… without such amendments…” (Ketcham 2003, 280). Without the addition of the BOR, the USC would likely have never been ratified as well (Killian et al. 2004). Even Thomas Jefferson, who didn’t attend the CC, wrote to Madison that a BOR is,”…what the people are entitled to against every government on earth” (Bruns 1986). Likewise, without the BOR, it’s possible that many more of the Anti-Federalist fears would have manifested. We have the Anti-Federalists to thank for our rights of free speech, assembly, religion, and due process among many others, persisting despite growth of the federal government. Some of their concerns, however, were less prophetic, e.g. John DeWitt argued that the USC would be incapable of alternation. As he argues in his second essay, “… It is not so capable of alterations… I venture to assert, it never can be, unless by force of arms” (Ketcham 2003, 194). Hindsight of an additional twenty-seven amendments, including the BOR, has refuted DeWitt’s concern.

The debate between these opposing forces has permeated throughout American history and manifests itself today as a debate between those who support a powerful federal government and those who support a weaker federal government; ostensibly positioned as the Democratic Party vs. the Republican Party. But, again, the Framers weren’t establishing an all-powerful massive federal government nor a weak one. Rather, they designed a federal government that was supposed to follow stringent rules and only exercise specific powers that would, of course, be supreme over state governments. They weren’t for big or small federal government, but rather for constrained federal government that exercised its specified constitutional powers. Powers that the states, individually, were inept at exercising. Nonetheless, the Anti-Federalists have been proven right in many regards, as the federal government of today has grown exponentially in part due to a variety of criticisms they made of certain clauses within the USC, but also due to legitimate structural changes at the federal level.

The Decline of Federalism and the Ascent of the Federal Government

The American people have evidently come to perceive the federal government to be the correct agent of their democratic will. Strong evidence of this mentality may be found in the voting behavior of the American people. Most developed democracies calculate their voter turnout rates based on the percentage of registered voters who vote. In America, we calculate it based on the percentage of people who are eligible to vote, regardless of registration, and those who vote. Utilizing the foreign method, the turnout rate in the U.S. Presidential Election of 2008 was 89.7 percent (Schaffner 2010, 194). Striking is the almost hypnotic lure of presidential elections which prove to have the largest voter turnout rates. Midterm elections, which typically focus more on in-state campaigns unless there is a notable U.S. Senator or U.S. Congressperson up for election, exhibit lower voter turnouts. In other words, “…voter turnout is substantially higher in presidential election years than it is in midterm elections” (Schaffner 2010, 184).

The above helps to support the notion that the majority of the American people are less interested in their state and local government elections and are primarily focused on the federal government– even worse so the president –as the sole agent of their democratic will. This federal government prominence is rooted in media (Shaker 2009), it is the result of the federal government gaining more power than ever intended by the Framers, and it is also directly the result of voter and interest group behavior. For example, Neal Devins explains, “Interest groups and voters are interested in first-order policy preferences… interest groups have incentive to pursue nationwide initiatives (Devins 2012, 1840). There have, however, been several structural changes at the federal level which have likely facilitated this ascent of the federal government to supreme democratic agency.

Structural Changes

Following the American Civil War, the federal government gained a number of new powers during the Reconstruction Era, some very important powers to defend the individual liberty of all Americans as evident in the Thirteenth and Fourteenth Amendment’s. Several decades later, implementation of the Sixteenth (16th) and Seventeenth (17th) Amendments also empowered the federal government further. The 16th provided a means for the federal government to directly tax individuals in a way they previously could not. The 16th ultimately led to the constitutionality of the personal income tax, Social Security, Medicare, Medicaid, and even the individual mandate tax of the Patient Protection and Affordable Care Act (ACA) (Moncrieff 2012, 317-325).

The 17th removed the power of state legislatures to select the U.S. Senators who were, under the original federalist intent, supposed to represent the actual state governments and not the people of the states themselves. The 17th, then, also took away much of the influence that state representatives and senators had in the governing process (Madison et al. 1987, 374-380). This removal of power likely provided less incentive for voters to hold state representatives and senators accountable (Bernhard & Sala 2006). In The Federalist No. 62, Madison expresses the key importance of having state governments choose the U.S. Senators. Madison wrote, “… giving to the State governments such an agency in the formation of the federal government as much secure the authority of the former, and may form a convenient link between the two systems” (Madison et al. 1987, 375). In other words, the 17th served a massive blow to state government checks on federal power. A good indication of this blow was found by William Bernhard and Brian R. Sala when they discovered that post 17th “… election outcomes were more closely related to presidential election results” (Bernhard et al. 2006, 356). Whereas previously, “… incumbent senators paid close attention to the state legislature in making career decisions” (Bernhard et al. 2006, 356).

One of the first major political conflicts following ratification of the USC was the implementation of a central bank at the federal level which would facilitate the creation of fiat money and empower fractional-reserve banking. Hamilton was a supporter of the bank, while Madison and Jefferson were against the central bank. Madison wrote strongly against paper money, and expected the federal government to prevent the states from utilizing it, and certainly not to utilize it themselves (Madison et al. 1987, 277-284). Eventually the first central bank was founded and quickly abolished, then a second one was created and quickly abolished, and finally, in 1913, the Federal Reserve System (Fed), America’s current quasi-public central bank, was created (Mishkin 2010, 315-340). Creation of the Fed empowered the federal government extensively. It provided them with a virtually endless supply of money; they utilize the Fed to fund wars, foreign interventions, and various domestic programs. One need look no further than the Fed, to understand the tremendous amount of monies available to spend on the many wars since 1913, e.g. WWI, WWII, Korea, Vietnam, and Iraq. Moreover, a semi-private federal central bank, the Fed, now holds the proverbial switch to turn on or off the lights on the entire American economy by stroking the insatiable American desire for instant gratification via limitless credit (deSoto 2011).

Usurpations of State Power

Therefore, while it is true that the federal government has gained many state powers constitutionally with the consent of the people and their states, it has also usurped many powers; often even with the Supreme Court’s (Court) blessing (Stoker 2009). The states still retain the majority of day-to-day operating powers of governing (Dye & MacMaanus 2012, 33). For example, they are primarily in charge of primary and secondary education, criminal justice, highway management, pollution control, food inspection, and various welfare programs. The Anti-Federalists were wrong that the federal government would destroy the state governments, but they were correct that it would extend federal powers beyond the scope of those constitutionally permitted and ascend them to an enormous, almost uncontrollable, level. Despite the states having the ability to manage most of the aforementioned areas, they typically do so under guidelines set by the federal government; this is often referred to as cooperative-federalism, but it is often similar to federal puppet mastering (Thomson & Arroyo 2011).

President George W. Bush’s No Child Left Behind Act and President Barrack Obama’s the Patient Protection and Affordable Care Act (ACA, Obamacare), are examples of the strings the federal government has attached to the state governments regulatory tools; i.e. they’re examples of “cooperative” federalism. The former sets education guidelines the states must follow, whereas the latter essentially implemented a “…concept called ‘managed competition,’ which leaves insurance privately owned but forces it to operate in an artificial and highly regulated marketplace similar to a public utility” (Tanner 2008). Major environmental regulations such as the National Environmental Policy Act, the Clean Air Act, and the Endangered Species Act, also serve as examples of cooperative-federalism where the federal government requires the states to meet certain standards but the states are mostly provided autonomy in how they achieve those standards (Blais 2014; Thomson & Arroyo 2011).

Cooperative-federalism may often be constitutional, but many such activities appear to be somewhat, if not completely, unconstitutional. The War on Drugs, or the Controlled Substance Act (CSA), for example, appears to be a blatant usurpation of state powers by the federal government. A clear example one can make to demonstrate the overreach of the federal government in this area, is to examine the prohibition of alcohol. In order to prohibit alcohol sale and consumption at a national level, the federal government and the states required the passing of the Eighteenth Amendment. It is then logical to ask, why did the federal government not require an amendment to prohibit, say, marijuana? In examining the only Court case to roughly address this issue, Brandon J. Stoker concludes that the bare-majority decision of the Court, may very well have been the final, “…death knell of federalism” (Stoker 2009). Justice Clarence Thomas expressed similar sentiments in his dissent in the same case, arguing that the Commerce Clause had been utterly misinterpreted (Stoker 2009). Fortunately, at least in regards to marijuana prohibition, its recent legalization by Colorado and Washington, and the Obama Administration’s promise to not interfere, has provided some hope that federalism is not entirely dead.

Some of these federal intrusions into state regulation are rooted in the federal government arguing that certain clauses in the USC allow them to implement essentially whatever they want. Three of the most invoked clauses to support federal supremacy in the USC are the General Welfare, Commerce, and Supremacy Clause’s. These clauses have been utilized to justify various federal usurpations of power (Stoker 2009). This is something that Yates warned would happen. When critiquing Article 1 of the USC, Yates wrote, “The powers given by this article are very general and comprehensive, and it may receive a construction to justify the passing almost any law” (Ketcham 2003, 274). Yet, both Madison and Hamilton refuted the Anti-Federalists in their essays, claiming that this was almost an absurd concern. As Hamilton explained of the Supremacy Clause:

…it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation… (Madison et al. 1987, 197-201).

Said otherwise, these clauses only refer to the specific powers and authorities enumerated in the Constitution. Madison explains the same of the General Welfare Clause likely in direct response to Yates essay (Madison et al. 1987, 258-259). The key point, as discussed in the previous section, is that the Framers didn’t call for a big federal government that was supreme in every fashion, but rather one that was only supreme in the areas which were constitutionally enumerated, leaving all other powers to both the people, and their state governments, as became manifest in the Ninth and Tenth Amendment’s of the BOR. In short, while states still exert influence, federalism is in decline while the federal government has ascended to the position as the primary agent of representative democracy in America, despite the lack of representation at this level of government commensurate to state governments.

The Decline of Federalism and Current American Woes

As discussed above, federalism was never meant to entail complete federal control, but slowly America has driven in that direction. Not only does the federal government behave this way, but the voters perpetuate it by focusing most of their attention on the federal government to solve various issues (Devins 2012, 1840-1845). Given the lack of representation at the federal level, and the observation that the more voters there are the less influence a single voter has in the outcome of an election, this has actually endangered representative democracy. Democracy is in trouble as the larger the population becomes, while representation remains static, the smaller impact each individual has on the democratic process. Additionally, the decline of federalism has led to a reckless federal government.

In the development of a solution to any complex problem, there are a variety of variables one must consider; not doing so could have unintended consequences. In the realm of the physical sciences, there are constants such as the structure of a hydrogen atom or the freezing and boiling temperatures of water. Conversely, in the realm of the social sciences there are few, if any, constants (Da Silva & Afonso 2006). Individuals change their minds, they can be unpredictable, and many social solutions involve a variety of key players, bureaucracies, businesses, international organizations, non-government organizations, and even foreign governments. Unraveling these complexities to find all variables is probably a futile effort. Hence, sweeping changes to address American socio-economic issues, should first be tested at state levels which are typically closer to the problems, and also wherein there is often more homogeneity of culture and ideals. As Supreme Court Justice Anthony Kennedy, writing for the opinion of the Court recently exclaimed, “The States are laboratories for experimentation.” Following this logic, the ACA is in fact based heavily on the healthcare system setup in Massachusetts (Tanner 2008); time will tell, however, whether or not it functions well at a federal level. Additionally, there are now threats to individual liberty because of the ACA. Suppose special interest groups lobby to ban the consumption of junk food because the federal government now subsidizes health insurance.

There are also many issues facing the federal government, some of which are fiscal and/or economic in nature. The federal government cannot balance their budget, deficits run high, the debt is soaring, fiat monies are being printed and/or digitized faster than trees and computer bytes can produce them (deSoto 2011; Mishkin 2010, 315-340), the Department of Veterans Affairs has botched delivery of socialized healthcare for veterans, and Social Security and Medicare are essentially insolvent-non-fully funded programs (Browning 2008; Henslin 2012, 379). For the most part, the state governments are run with better fiscal responsibility than the federal government (Dye & MacMaanus 2012, 470-489). For example, the majority of state governments require balanced operating budgets (Dye et al. 2012, 482-484). The federal government, conversely, is fueled by fiat monetary stimulus facilitated by the Fed, providing them with virtually limitless borrowing potential (deSoto 2011; Mishkin 2010, 315-340). This excessive borrowing and monetary inflation can have drastic effects on, not just the entire American economy, but the world economy as well (deSoto 2011).

In sum, the federal government is in fact the least democratic level of government in America, as detailed above, yet it is amass with power and fiscal recklessness. Likewise, the two major political parties dominate the electorate forcing voters to choose between two polarities, when in reality, the two major parties often behave in indistinguishable ways from one another (McKenna et al. 2011, 36), some have referred this as the “grand illusion” (Amato 2009). For example, they both tend to promote the decline of federalism, by ignoring constitutional limitations, when they are in power (Devins 2012). There is also far more money in individual federal candidate campaigns because of the lack of candidates running for federal office. This exacerbates the federal government’s stranglehold over the media and public perceptions of them as the proper agent of their democratic will (Shaker 2009). When there are few candidates running, there will be fewer diverse advertisements, and hence, less exposure to alternative points of view. Ultimately, in order to restore federalism, and to decrease many of America’s current federal problems, the USC is in need of some important modifications to clarify the federal government’s role, protect liberty, and to resuscitate democracy and participation at more democratic levels of government.

Resuscitating Federalism with Constitutional Reform

In the previous sections it was shown that the federal government was never intended to be either big or small, but rather to be restricted to very specific roles as detailed in the USC; these roles would be supreme over the state governments, e.g. the supreme role of engaging in common defense (Madison et al. 1987, 36-40) and the drafting of international treatises. Additionally, it was shown that the federal government has expanded its roles since ratification of the USC both through constitutional structural changes, but also through distortions of their roles through misapplication of certain clauses in the USC. It was also shown that there have been many consequences to this federal expansion that have afflicted all Americans. In particular, the American people now put too much emphasis on the federal government to solve socio-economic problems, i.e. there is too much emphasis placed on the federal government acting as the agent of their democratic will. The people have, hence, deemphasized the importance of their state and local governments, in which they have more representation and direct influence (Moncrieff 2012), to solve socio-economic woes, e.g. poverty, education, and pollution.

Additionally, the federal government shows little regard for the USC and federalism. In his paper regarding implementation of the ACA, Neal Devins shows that the Congress has lost all interest in questions of constitutionality (Devins 2012). For example, Devins found that, “… the Constitution played no meaningful role in congressional committee consideration…” (Devins 2012, 1829). Devins also shows that federalism is simply of no interest to Congress or special interest groups (Devins 2012, 1840-1845). Hence, we should at least make the federal government more representative of the people as a precaution against tyranny, if it is to be the sole agent of representative democracy. Based on the aforementioned research and the author’s analysis, the following suggestions for constitutional reform are proffered, but they do require further research and evaluation.

Empowering the People

The first issue of constitutional reform should address the disproportionate representation currently present in the House. While a House consisting of 10,000 representatives is likely improbable, the current status quo is hardly representative of all Americans. Reform, then, should certainly entail at least increasing the number of representatives in the House and setting a system for the infusion of new representatives in the future . This will have the added effects of decreasing some of the money in individual federal election campaigns and of complicating the influence of gerrymandering which some argue is perhaps the greatest reason for political polarization at the federal level (Jacobson 2013, 702). This will also empower more diversity of views in the House. Having more federal representatives will also allow constituents more direct access to their representatives and the legislative process as well (Moncrieff 2012).

Madison explained that in order for representatives to maintain a sense of “kinship” with their constituents, it is important to have frequent elections (Madison et al. 1987, 324). Another addition to the security of this “kinship,” is to implement term limits for House members. Term limits have efficiency drawbacks, but they serve as a check on the existence of career politicians who become friendly with lobbyists and special interests over the interests of their constituents (Kroszner & Sratmann 2000). Reform should involve term limits on the House, but not necessarily the Senate, as the Senate provides a critical check on some of the drawbacks of amateur legislators (Kroszner et al. 2000) which is one reason they have longer terms in the first place (Madison et al. 1987, 377). Likewise, an increase in U.S. Senators should perhaps be tied to the number of states in existence; most importantly is that the U.S. Senate should be re-emboldened as the representative of the state governments and stripped of their democratic connection with the people, as that was supposed to be the function of the House and not the Senate.

Lastly, it’s also shown that voters only tend to vote for Republicans or Democrats because there simply isn’t any other alternative (Amato 2009; Jacobson 2013, 705). Perhaps election of the House could implement proportional elections to include more parties, and hence more ideological representation. Duverger’s Law argues that the lack of proportional electoral systems, naturally leads to a two party system (Colomer 2005; Da Silva et al. 2006). Albeit, not all scholars share this conclusion (Colomer 2005; Da Silva et al. 2006). Nonetheless, there is a lack of proper representation at the federal level and implementing both an increase in federal representatives and possibly a proportional system, could help decrease some of the polarization prevalent at the federal level and enhance the power of the people in the democratic process.

Empowering the States

First, a repeal of the 17th Amendment is essential to restore balance between the state governments and the federal government. Second, the management of Social Security and other federal welfare programs could be passed to the states as the federal government has violated the trusts of the American people in the past, leaving these systems vulnerable to insolvency (Browning 2008; Henslin 2012, 379). Third, to help the states collect more revenue for these social programs, a repeal of the 16th Amendment in favor of a less intrusive tax system at the federal level, may also be considered. Fourth, a complete abolishment of the Department of Education would be a worthy task to return full purview of education to the state governments. Fifth, a balanced budget amendment should be added to the USC to constrain federal spending and borrowing. This takes away from state revenue and endangers all Americans. Finally, the Fed and monetary inflation should be abolished to prevent the federal government from damaging the global economy and exponentially growing the national debt. Again, this will empower the state governments to have healthy economies and to raise more revenue for social programs.

The Federal Government’s Role

The federal government should continue to possess supremacy over various areas. For example: common defense, international relations, and issues that arise between the states. There have also arisen new areas of regulatory focus since the Framer’s era, such as global warming, space exploration, air traffic regulation, and deforestation, which the federal government is likely best suited to regulate. For example, the implementation of various federal regulations during the Environmental Revolution, have proven to be instrumental in addressing national environmental concerns (Benjamin 2011; Blais 2013). These are great successes of the federal government and should be continued.

Demanding that all states abide by the BOR has also proven instrumental in protecting the individual liberty of all Americans, e.g. the Fourteenth, Fifteenth, and Nineteenth Amendments were quintessential in providing rights to all Americans. Moreover, there are times of natural disaster when the federal government can serve as a pivotal asset to help impacted states recover. Hence, various disaster programs are rightfully in place at the federal level. The federal government has significant roles to play beyond mere common defense, hence this refutes some of the various arguments made by opponents of so-called “big government,” or those who would take this paper to imply that the federal government should be smaller. The federal government needs to be neither large nor small, but rather it needs to be focused, it needs to maintain that focus, it needs to be more democratic and reflective of diverse points of view, and it, most importantly, needs to more appropriately share a structured balance of power with the states to prevent the rise of tyranny.

Conclusion

American federalism has declined while the federal government has grown exponentially commensurate to state governments, which has endangered representative democracy and liberty, but balance may be rectified through USC reform. This paper has shown that the federal government was never intended to be either big or small, but rather to be strong, yet restricted to very specific roles, as detailed in the USC. The federal government has expanded its role since ratification of the USC both through constitutional structural changes, but also through subtle usurpations. There have been many consequences to this federal expansion that have afflicted all Americans and all states. In particular, the American people now perceive the federal government as the proper agent of their democratic will, and they have deemphasized the importance of their state and local governments, in which they have more representation and influence. Implementation of certain USC reforms may help restore some of the federalist-balance that has been lost throughout the course of American history, and more research should be conducted in this area.

The Framers established the plural United States of America, not the singular United State of America, and this is fundamental to understanding the difference between nation-state’s such as Great Britain and France from the unique-anatomy of America. Likewise, the Framers, in their essays, capitalized the “s” in states; i.e. they saw them as more than children of the federal government and capitalized them to denote a higher level of respect. Therefore, when President Obama says, “The United States is the only developed country in the world without paid maternity leave…,” Americans should pause to contemplate what that statement actually means. Are we simply one nation-state comparable to Great Britain and France, or are we a collection of free and diverse nation-states under the umbrella of a central government that exercises certain supreme, yet specific, powers? We are closer to the latter; we are a federation, not a singular sovereign. How does Texas, California, New Jersey, or Florida, compare to Great Britain and France? That question is wherein one may find a fair instigation of comparative politics.

American federalism and the separation of powers at the federal level have not only proven to be a powerful deterrent of tyranny, but they have also stood the test of time. Moreover the addition of the BOR to the USC– attributable mainly to the Anti-Federalist’s relentless opposition to ratification of the USC –has provided a safety net to secure liberty. These organs of the American governmental anatomy are likely why America has the longest written Constitution in the history of nation-state’s. Too much focus on the singular America, however, has endangered this liberty and prowess.

The separation of powers is dwindling even within the federal level. The U.S. Congress has become feeble (McKenna et al. 2011, 115-125) while the U.S. Executive has expanded its power beyond the scope of constitutional legitimacy (Fisher 2012; McKenna et al. 2011, 87-94). If this balance is not restored, it is possible that Robert Yates’ quote, which opened this paper, could become the future state of America sooner rather than later. With the majority of power concentrated under full federal authority, even worse under the president, there is nowhere for citizens to run but outside of America. With revelations of National Security Administration spying, and implementation of the Patriot Act, among other social ailments such as the growing prison population in America which disproportionately impacts minorities, these latter federal safety mechanisms are not definitively effective. It is incumbent upon all lovers of liberty and American patriots, to contemplate the decline of American federalism and what exactly that may mean for both the future of America and for liberty across the globe.

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Blais, Lynn E. 2014. “The Legitimate Reach of the Environmental Revolution.” Journal Of Law & Public Policy 37, no. 1: 13-22.

Lynn E. Blais provides an excellent legal discussion of federal environmental regulations. She directly addresses potential violations of federalism and constitutional federal powers. Additionally, she provides a pragmatic analysis of the various regulations, such as the Clean Air Act and Endangered Species Act. Ultimately, she finds that the regulations have been tremendously helpful and necessary as a result of state inaction. Addressing the issue of federalism, Blais argues that the federal government is serving a constitutional role and provides various Supreme Court case decisions for her evidence.

Browning, E. K. 2008. “The Anatomy of Social Security and Medicare.” Independent Review, 13(1), 5-27.

Edgar K. Browning is an economics professor at Texas A&M University and received his PhD from Princeton University. Writing for a peer-reviewed academic journal, Browning explores the full history, structure, and current condition of Social Security (SS) and Medicare. It is well-known among most economists that SS and Medicare have never been fully-funded programs. Rather, they work as a pay-as-you-go welfare system. Most Americans have a sense that their SS and Medicare taxes go into a special account just for them when they retire. In reality, SS and Medicare taxes immediately go out to pay current retirees their benefits. When there was a surplus of funds in the early1980s, a trust fund was created to make up for the looming SS and Medicare deficit that would come decades later. Currently, as Browning shows, SS expenditures exceeded their revenue and they now are utilizing the trust funds. These funds will run out in a few decades assuming all else remains equal. Even worse, the trust funds are made up of federal government securities, i.e. the actual funds have been loaned to other governmental departments making the trust funds a federal liability; there’s no actual money there. Hence, SS and Medicare are insolvent in their current form.

Bruns, Roger A. 1986. A More Perfect Union : The Creation of the United States Constitution. Washington, DC: National Archives and Records Administration by the National Archives Trust Fund Board.

This is an official federal government paper which details the various historical events and conditions that led to the drafting and ratification of the United States Constitution (USC). Bruns was an official at the National Archives and Records Administration when this was written. This paper provides a thorough history of the Federalists, the Anti-Federalists, and the various issues that were debated leading up to the ratification of the USC. There is also a discussion of the importance in having the Bill of Rights added to the USC. Overall, this paper provided a plethora of information to critique and evaluate the Federalists, the Anti-Federalists, and the history surrounding the creation of the USC.

Colomer, Josep M. 2005. “It’s Parties That Choose Electoral Systems (or, Duverger’s Laws Upside Down).” Political Studies 53, no. 1: 1-21.

Josep-Maria Colomer holds a PhD in political science and is a Barcelona GSE Affiliated Professor. His paper thoroughly discusses Duverger’s Law and analyzes the merits of referring to it as a law. He argues that it’s possible that the number of parties, first, is what leads to two-party dominance. Pointing out that other countries with plurality systems have multiple parties. Invoking actual information from Maurice Duverger, he argues that even Durverger wouldn’t have referred to his hypothesis as a law. Ultimately, Colomer doesn’t refute that plurality systems greatly encourage two party systems, but that they don’t necessarily definitely predict their occurrence. This paper was useful for pointing out some of the potential democratic benefits of transitioning the House to a proportional system.

Da Silva, Virgílio Afonso. 2006. “Duverger’s Laws: Between social and institutional determinism.” European Journal Of Political Research 45, no. 1: 31-41.

Da Silva and Virgílio Afonso provide a critical examination of Duverger’s Laws. Specifically notable is their moderate approach to that of calling such a social science hypotheses laws. They argue that, even Duverger, was hesitant to accept that his hypotheses were indeed laws. This is important to this paper as it argues that socio-economic laws are hardly laws. There is a great danger in thinking that social behaviors can be so easily predicted. In the physical sciences, there are hard, testable, constants. Under the category of the soft-sciences, of which social science falls, it is hardly plausible to call something a constant. Hence, this was important for explaining why legislation should be carefully tested and vetted, e.g. by the states, before being implemented at such broad levels of government, such as the federal level.

de Soto, Jesús Huerta. 2011. “Economic Recessions, Banking Reform and the Future of Capitalism.” Economic Affairs 31, no. 2: 76-84

Writing in a peer-reviewed academic journal, Jesus Huerta de Soto, a professor of economics at King Juan Carlos University, discusses the dangers of fractional-reserve banking, central banking, and artificial credit booms. Holding a PhD in economics from Complutense University, de Soto is a credible source on this particular aspect of the economy. His paper is useful for understanding how the federal government can borrow almost limitlessly and how the Fed, a quasi-public federal agency, can fundamentally influence the entire economy. Moreover he shows how central banking is not a capitalist construct, but it is rather a superb example of socialistic central planning.

Devins, Neal. 2012. “Party Polarization and Judicial Review: Lessons from the Affordable Care Act.” Northwestern University Law Review 106, no. 4: 1821-1848.

Neal Devins is a constitutional law expert and he goes into great depth analyzing the lead up to the passing of the Affordable Care Act and how it relates to the polarized U.S. Congress. Most important to this paper, was his analysis of the disregard for constitutional questions during passing of the act. There was virtually no constitutional challenges made within committees, nor on the floor of the House during roll call. Devins shows that the U.S. Congress lacks any respect for federalism or questions of constitutionality. This helps support that a decline of federalism is indeed taking place.

Dye, Thomas R., and Susan A. MacMaanus. 2012. Politics in States and Communities. Pearson

In this textbook, Thomas R. Dye and Susan A. MacMaanus, thoroughly evaluate non-federal American governments. This was a required textbook for, POLS312 State and Local Politics, at American Public University. Within the textbook are a plethora of examples where the federal government sets mandates for the state governments to follow. Revealing, however, is the amount of autonomy that states still possess in a variety of governing areas. While federal government is the ultimate “puppet master,” and/or authority on regulatory matters, the states do provide the majority of day-to-day services that form the scaffold of public administration.

Fisher, Louis. 2012. “Basic Principles of the War Power.” Journal Of National Security Law & Policy 5, no. 2: 319-337.

Louise Fisher refutes the idea that the U.S. President has unilateral war powers. In Fisher’s paper he documents a number of original Framer’s writings to illuminate the role of the president. Notably, this paper helps to support the idea that even the U.S. Congress is less important to the American people than the president. The president serves as the “figure head” of the American people. Exercising powers beyond constitutional authority, the president provides an example of where even the checks and balances at the federal level have dwindled.

Friedman, Milton. 2006. “Free Markets and the End of History.” California: New Perspectives Quarterly, 23 (1). http://www.digitalnpq.org/archive/2006_winter/friedman.html.

Milton Friedman was a well-known conservative economist. He was known for his staunch free market advocacy and advancement of free market principles. Friedman is often invoked by contemporary conservative politicians to assert the superiority of free market economics over socialism. In one of his last interviews, Friedman answers a question regarding the perfection of free markets. Within his response, he explains that pollution, inequality, and a variety of other negative externalities of free market economics, are within the realm of governmental oversight. This is a critical example of even the most conservative economist recognizing the need for state action to address certain market externalities. This source was useful for this paper because it argues that the federal government is best equipped to handle some of these externalities, whereas states can better handle others.

Hayek, Friedrich Von. 1994. Excerpts from The Road to Serfdom by Friedrich, 1944, pp. 13-14, 36-37, 39-45. Chicago: The University of Chicago Press

Friedrich Von Hayek was an economist, perhaps known to be even more conservative than economist Milton Friedman. He was a proponent of free market economics and loathed socialism. Even Hayek, however, recognized the need for governmental regulation. Pointing out that deforestation, pollution, and other negative environmental externalities of free market transactions, are within the purview of governmental regulation. This source empowers this paper’s argument that the federal government is well-suited to combat wide-ranging negative externalities; specifically those which cross state borders, e.g. climate change.

Henslin, J. 2012. Sociology: A Down to Earth Approach. (10th ed.). Boston: Allyn & Bacon.

Henslin’s textbook provides an introduction to sociology. It is a required textbook for American Public University’s sociology program. Beyond a discussion of various socio-economic issues, Henslin also touches upon federal government programs. Relevant to this paper, was Henslin’s discussion of Social Security’s insolvency. Henslin is more liberal-minded when it comes to economics, as most sociologists are, so his discussion on Social Security insolvency, helps lend some credence to the arguments of more conservative economists.

Jacobson, Gary C. 2013. “Partisan Polarization in American Politics: A Background Paper.”
Presidential Studies Quarterly 43, no. 4: 688-708.

Gary C. Jacobson evaluates the growing polarization found within American politics. Notably, Jacobson finds that gerrymandering has exacerbated issues of polarization. His paper goes into great depth of the various structural causes of current legislative gridlock. Additionally, Jacobson provides a thorough evaluation of the polarization found amongst the American electorate. Noted is his reference to James Madison’s intention of there being legislative stalemates to protect liberty. Overall, this is an excellent primer on current political polarization in America.

Ketcham, Ralph. 2003. The Anti-Federalist Papers and the Constitutional Convention Debates. Signet Classic

This is a collection of primary sources. It contains notes from the CC in addition to various essays written by Anti-Federalists. It includes essays by Brutus, Cato, John DeWitt, and other Anti-Federalists writing against ratification of the USC. Ralph Ketcham provides thorough notes and introductions to the various authors. This book was a quintessential source in the writing of this paper.

Killian, Johnny H., George A. Costello, and Kenneth R. Thomas. 2004. “Historical Note on Formation of the Constitution.” U.S. Government Printing Office. http://www.gpo.gov/fdsys/pkg/GPO-CONAN-2002/pdf/GPO-CONAN-2002-4.pdf.

This is an official federal government document that discusses the historical events involved in forming the Constitution. It provides a thorough discussion of the Anti-Federalist and Federalist factions. Additionally, it discusses the role of having the BOR added to the USC to ensure the ratification of the USC. By agreeing that the BOR would be the first legislative act of the First Congress, the states ultimately agreed to ratify the USC. This paper also discusses the other complexities involved in getting various states to ratify the USC and it provides chronological recounts of the ratification process.

Kroszner, Randall S., and Thomas Stratmann. 2000. “Congressional Committees as Reputation-building Mechanisms.” Business & Politics 2, no. 1: 35-52.

Randall S. Kroszner and Thomas Stratmann evaluate the behavior of legislators and lobbyists. Specifically, they focus on the power of tenure in congressional committees. At first, U.S. Congresspersons are less under the whim of lobbyists and special interests as they haven’t yet established a tenure that shows how they tend to vote. Kroszner et al. essentially show that the longer a representative is in Congress, the more influence special interests have on them. However, they also show that this provides for more experienced and influential legislation. In other words, amateur legislators, while being limited in experience and susceptible to special interest manipulations, most special interests and lobbyists don’t waste their time on them as they have better established repertoire with more tenured representatives they can trust.

Madison, James, Alexander Hamilton and John Jay. The Federalist Papers. New York: Penguin Putnam, Inc. 1987. [First published in 1788.]

This collection of the Federalist Papers was by far the most critical and quintessential source used in the writing of this paper. The collection contains all eighty-five essays the Federalists wrote. James Madison, Alexander Hamilton, and John Jay, provide the proverbial footnotes to the USC. They directly responded to arguments of the Anti-Federalists and also described in great detail the various parts of the USC. Within the Supreme Court, these essays are often used to determine original intent of various clauses within the USC. It could dare be argued that one can hardly be a scholar of American politics have they not read these essays.

McKenna, George and Stanley Feingold. 2011. Taking Sides, Clashing View on Political Issues, 17th Edition. Dubuque, IA: McGraw Hill.

This is the textbook for POLS497, Senior Seminar in Political Science, at American Public University. It contains a variety of essays written by various authors on specific issues. By first having a pro essay on an issue, it then has a competing con essay. Every debate has a preface and postscript by George McKenna and Stanley Feingold. For this paper, Howard Zinn’s essay is cited as support for similar foreign policy activities, and points of view, of both liberals and conservatives. Additionally, Michael Cairo’s essay was cited for his detailed recollection of presidential abuses of war powers. Finally, Thomas E. Mann and Norman J. Ornstein were cited for support of the growingly feeble U.S. Congress compared to the ever-more-powerful U.S. Executive.

Mishkin, Frederic S. 2010. The Economics of Money, Banking & Financial Markets. Boston: Pearson Education

Frederic S. Mishkin is a former member of the Board of Governors of the Federal Reserve System. Additionally, Mishkin holds a PhD in economics. This was a required textbook for ECON304, Monetary Economics, at American Public University. For this paper, the chapter on central banks and the Federal Reserve System is cited as a source on monetary policy and the operations of the federal agency, the Fed. Mishkin doesn’t favor an abolishment of the Fed but his chapter details the specifics behind how the Fed allows the federal government to essentially borrow money infinitely. This source is also used to balance the arguments made by Jesus Huerta de Soto who argues for the dissolution of central banks. In this paper, de Soto’s arguments are supported over those of Mishkin.

Moncrieff, Abigail R. 2012. “Cost-Benefit Federalism: Reconciling Collective Action Federalism and Libertarian Federalism in the Obamacare Litigation and Beyond.” American Journal Of Law & Medicine 38, no. 2/3: 288-325.

Abigail Moncrieff holds a Juris Doctorate from the University of Chicago Law School. She is a Professor of Law at Boston University. She identifies collective-action-federalism (CAF) and libertarian-federalism (LF). CAF is a focus on using the federal government to institute virtually all regulations, whereas LF focuses on using the state governments to institute virtually all regulations and to work together through compacts with one another. Moncrieff concludes that both CAF and LF are based in sound logic but that if taken to the extreme both will lead to the end of federalism. Towards the end of her paper, Moncrieff discusses where Obamacare fits into this federalist dichotomy and proffers a cost-benefit theory of federalism to moderate the two competing theories so that federalism may persist. This paper was highly relevant to this paper’s thesis. Moncrieff provides a thorough examination of the benefits of balanced federalism and the dangers of full federal of full state control.

Schaffner, Brian F. 2010. Politics, Parties, And Election In America. Amherst: University of Massachusetts. Wadsworth Cengage Learning.

This was a required textbook for the POLS311, Political Parties and Interest Groups, course at American Public University. It is used as a source to confirm the difference between Federalism and the Federalist Party. Additionally, it is cited to support the voter turnout calculations utilized in the United States and certain statistics on previous elections. Notably, this textbook is cited to provide thorough support for the declining importance of non-presidential elections in American politics.

Shaker, Lee. 2009. “Citizens’ Local Political Knowledge and the Role of Media Access.” Journalism & Mass Communication Quarterly 86, no. 4: 809-826.

Lee Shaker provides an important analysis of what exactly the American people know about politics. It turns out that those with lower education, and lower income, also those who are less likely to vote, tend to often know more about local politics than those with higher education and income. Shaker shows that this is a result of access to specific media. Having antenna television and newspaper access, for example, may only provide lower income families with access to local news and politics. Conversely, those with greater wealth have access to the internet, and cable news, which tend to focus on national issues. Ultimately, this peer-reviewed academic journal is useful for understanding some of the reasons behind the American voters declining interest in state politics.

Stoker, Brandon J. 2009. “Was Gonzales v. Raich the Death Knell of Federalism? Assessing Meaningful Limits on Federal Intrastate Regulation in Light of U.S. v. Nascimento.” BYU Journal Of Public Law 23, no. 2: 317-349.

Brandon J. Stoker provides a chilling revelation of the Supreme Court’s decision in Gonzales v. Raich. This case involved the Court determining whether or not the federal government had the right to prosecute medical marijuana users, suffering from cancer, despite California’s Compassionate User Act. The users grew their own plants and were solely the ones who used the product. The decision was six-three with strong dissents written by the dissenting justices. Justice Clarence Thomas, of whom Stoker quotes, profoundly disagreed with the majority opinion. The majority argued that the mere personal use of the plant could interfere with interstate commerce in some fashion. Ultimately, Stoker argues that this decision could very well have been the fatal blow to federalism. The federal government could now regulate virtually anything it wanted under this decision.

Tanner, Michael D. 2008. “Lessons from the Fall of RomneyCare.” CATO Institute. http://www.cato.org/policy-report/januaryfebruary-2008/lessons-fall-romneycare.

This is a particularly interesting paper as it is published by the CATO Institute. CATO is notably a libertarian think-tank. They are scholarly and academic, nonetheless. But the importance of this paper is that it shows that Obamacare is not truly a socialist program, nor is it a complete federal takeover of healthcare. Rather, Obamcare is very similar to RomneyCare which was a conservative construction to address healthcare issues in Massachusetts. The states have a level of autonomy in implementing the new law. Michael D. Tanner is a libertarian journalist, but he provides a balanced conservative look at Obamacare. The majority of conservative media tends to criticize the law as being simply socialist or communist, which certainly is not the case. This was of great interest to this paper as it provides an example of cooperative-federalism with massive, perhaps unconstitutional, strings attached by the federal government.

Thomson, Vivian E., and Vicki Arroyo. 2011. “Upside-Down Cooperative Federalism: Climate Change Policymaking and the.” Virginia Environmental Law Journal 29, no. 1: 1-61.

Vivian E. Thomson and Vicki Arroyo discuss the various actions that state governments have taken to combat climate change. Notably California, Washington, Texas, New York, and Florida, have taken a number of steps to fight climate change. California, specifically, has taken steps far exceeding those mandated by the federal government. Thomson et al. actually show that in some cases the federal government has prevented California from exercising even more aggressive policies. This particular paper was of great interest because it evaluates cooperative-federalism and also some of the costs and benefits of federalism. The authors show that many states voluntarily work together to address climate change without federal action. Additionally, they show that, when states are aggressively fighting an issue, the federal government should step back and let them serve as an example of what may or may not work. In the end, the authors find that the federal government needs to work with the states, and not dominate their execution of policies.

You may cite this source as:

Gibbons, Jonathan R. 2014. “The Decline of American Federalism.” Saint Petersburg, FL: Gibbons Report. http://www.gibbonsreport.com/politics/the-decline-of-american-federalism/