Law & Principles
Trent England | November 13, 2014
Federalism: The Objective and the Strategy
Restoring the balance between state and federal power will take states standing up against federal overreach. The fight will not be won from within Washington, D.C. This is why the mission of the Liberty Foundation of America is to leverage local resources and partnerships to assert state primacy and personal liberty in national public policy.
A massive infrastructure for liberty has emerged within the states over the last two decades. The time has come to leverage those resources in the fight to restore constitutional federalism.
Geography matters. There is something different about a government down the street and one a thousand miles away. Citizens can track down and talk to their city and county officials, and even their state legislators. It is much more difficult to gain an audience with a member of Congress. And just try tracking down an official within a federal bureaucracy. Distant governments are less responsive and accountable to citizens, and thus prone to both inefficiency and hubris.
Not only did the American Founders understand this, it has been part of Western political thought since the classical Greeks. They believed only small societies could maintain the kind of virtue that makes freedom and representative government possible. Get too big, with power too distant, and totalitarianism becomes inevitable. The case in point for the Greeks was the contrast between their relatively small (and relatively free) city-states and their bad neighbor to the east: the massive, imperious Persian Empire.
Of course, in the end, the Greek city-states fought with each other and then fell to a new imperious neighbor, Rome. History seemed to show that the conditions necessary for freedom were also the causes of weakness and strife; creating a state strong enough to survive meant leaving freedom behind.
The Framers of the Constitution faced this challenge and created something new—the structure that is today known as federalism. The states already possessed the complete powers of government, and were left with all that power save what was explicitly handed over to the new federal government or denied the states in the Constitution. Federal powers were limited to those things either inherently or necessarily federal, like foreign policy and defense. The federal government would regulate interstate issues—trade across state lines or in international waters—but all the rest was left to the states themselves.
The Constitution begins and the Bill of Rights ends with statements about the limits on federal power. Article I, Section I, says “All legislative Powers herein granted shall be vested in a Congress of the United States…” (emphasis added). The Tenth Amendment reads,
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The Constitution is clear on this point. And like all the structures and processes it creates, the ultimate purpose is to establish a government that will “secure the Blessings of Liberty” for generations.
The Progressive Assault
Progressives believe human nature is malleable and changes over time. The purpose of government is not just to keep up, but to lead and control this process. This requires a powerful, flexible government. “The trouble with the [American Founders’] theory,” wrote President Woodrow Wilson, “is that government is not a machine, but a living thing.” Structures like federalism, with its limits on federal power and governments competing with other governments, frustrated progressive politicians and their programs.
Until the Progressive Era, the Constitution had indeed kept government limited. Except at elections and during wartime, the federal government had very little interaction with ordinary Americans until the New Deal. Federal spending never exceeded 5 percent of the economy, other than in wartime, until 1930. Then it doubled, to 10 percent, in just a decade. Federal spending has represented 15 percent or more of the economy since 1950.
The Progressives, in the same year Wilson was inaugurated, amended the Constitution to allow a federal income tax and require direct election of Senators. The first change dramatically increased federal power by creating not merely revenue but also regular interaction with nearly the entire population. The second change, eliminating the power of state legislatures to elect Senators, removed the states’ most potent check on federal legislative power.
More importantly, Progressives like Wilson successfully called on the courts “to interpret the Constitution according to the Darwinian principle.” Rather than focusing on the original meaning of the text, judges would turn it into a “living” document that could grow and change over time. This transformation of the role of judges, from guardians of the Constitution to participants in the Progressive project to remake government and society, set the stage for the New Deal.
Wilson was honest about Progressive designs, with limited success. Franklin Roosevelt was a much savvier politician. Instead of disagreeing with the American Founding, Roosevelt simply reimagined the Founding and the Constitution. He claimed the Declaration of Independence was a contract between the people and their rulers, where the people gave power to government, which in turn gave the people certain rights. This meant government could provide more rights to the people, so long as the people consented to an ever more powerful government.
Roosevelt’s New Deal programs were based on these supposed new rights. They were also designed to discredit state governments and change the balance of power in favor of Washington, D.C. New Deal programs intentionally went around the states and either reached down to the people directly or in partnership with local governments. States were made to look impotent as compared to the massive new federal projects and handouts.
The expansion of federal power has continued. The most quantifiable results are massive debt, nearing $18 trillion, and even more massive future obligations of $115 trillion. Federal regulations are estimated to cost just over $2 trillion every year. Perhaps even more disturbing is the breakdown in trust between citizens and government. Less than a third of Americans believe the country is “heading in the right direction.” Polls of citizens’ trust in government are around all-time lows. The Greeks could have warned us; the Framers of the Constitution tried to stop us.
The Objective and the Strategy
Can we restore federalism and reverse the damage done by the Progressives? We can. In fact, we are better positioned today to push back than at any time since the New Deal. We are at the beginning of the third wave of organized opposition to the Progressives. Or, to put it positively, the third wave in favor of restoring constitutional government to the United States.
The first wave came with the founding and growth of national conservative and libertarian organizations. Because the Progressives focused their efforts on Washington, D.C., the opposition did as well. Yet the fight there is inherently defensive. Progressives, with their vision of consolidated, top-down control, can win from the center. Those who believe in freedom and in federalism cannot.
Visionary constitutionalists recognized this and began founding state-based groups, with remarkable success. This second wave of opposition to the Progressives has built up an unprecedented state-based infrastructure for freedom. And for these groups, federalism is an existential concern. Either states have authority to make policy choices or else the work of state think tanks and activist groups is an anachronism. Conversely, every exercise of state power is an expression of federalism.
Until now, these state groups have focused almost exclusively on state governments and policies. Yet these groups are well positioned and motivated to advocate for federalism. Leveraging this infrastructure and these resources is the mission of the Liberty Foundation of America and is the third wave that is now building up so that it can come crashing down on the Progressives.
The Liberty Foundation of America is focused on policy issues most subject to federal overreach, starting with agriculture and energy. These are the foundations of a functioning economy. Federal policies have mired farmers and energy producers in red tape, harming the well-being of all Americans. States are competent to make policies and administer the necessary programs in both of these areas. And it is easy to imagine how competition among states would produce policy innovations that make our nation stronger, safer, and more prosperous.
Now is the time to bring together national and state-based organizations to push back the Progressives’ unconstitutional federal power grab. The Liberty Foundation of America is proud to be at the leading edge.
David and Ann Brown Distinguished Fellow
Trent England is the David and Ann Brown Distinguished Fellow at the Oklahoma Council of Public Affairs, where he previously served as executive vice president. He is also the founder and executive director of Save Our States, which educates Americans about the importance of the Electoral College. England is a producer of the feature-length documentary “Safeguard: An Electoral College Story.” He has appeared three times on Fox & Friends and is a frequent guest on media programs from coast to coast. He is the author of Why We Must Defend the Electoral College and a contributor to The Heritage Guide to the Constitution and One Nation Under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty. His writing has also appeared in the Wall Street Journal, USA Today, Washington Times, Hillsdale College's Imprimis speech digest, and other publications. Trent formerly hosted morning drive-time radio in Oklahoma City and has filled for various radio hosts including Ben Shapiro. A former legal policy analyst at The Heritage Foundation, he holds a law degree from The George Mason University School of Law and a bachelor of arts in government from Claremont McKenna College.