October 25, 2011
To the Members of the 112th Congress:
Many thoughtful citizens think that Washington is broken – that the federal government is not working as it should. It is not working, in part, because it is working too much. It has gone beyond the Constitution and reached too far into what is properly the business of the states.
A couple of weeks ago, I speculated about some possible reforms that might help begin to return the federal government to its proper scope. But no single policy proposal will bring federal-state relations back into balance. For that we must recover something of our old understanding of the principles that created the balance in the first place.
As James Madison famously wrote in Federalist 39, our government is “neither wholly federal, nor wholly national.” It is something new. Before, countries had been either what Madison calls “confederal” or “consolidated” – either loose associations of sovereign states (like the European Union today) or countries held together by a single, central government. America set out, paradoxically, to combine these seemingly irreconcilable principles – to be many, and at the same time to be one.
Despite what a few continue to think, America is not a confederation. The 13 original states were never separate, independent countries with complete authority over their domestic and foreign affairs. Even from the beginning, as Madison says, the Union had certain powers; most importantly, the American people existed as “one people” from the Revolution on, as the Declaration of Independence states.
On the other hand – contrary to what so many elected and appointed officials have for so long supposed – we are also not one big, consolidated mass (something to keep in mind when the Electoral College makes its quadrennial claim on our political attention). The American people are “the Citizens of each State” as Article IV of the Constitution describes them. This means that the states are not simply administrative districts of the federal government that exist to carry out federal programs. They are real, living, distinct political societies. We are always Americans first, but for some purposes we are 50 different peoples with different needs, interests, and ways. We are citizens of the United States with a direct relation to the federal government, and we are citizens of our own states with a direct relation to our state government.
Following this principle, we the people, through the Constitution, empower the federal government to handle certain tasks like foreign policy, national security, coining money, and regulating commerce. These are areas in which the American people are and must be tied to each other politically through a single, national government. The United States must speak with one voice in foreign affairs, and a vital national economy requires a common currency and commercial regulations.
As the Tenth Amendment makes clear, however, the powers not delegated to the federal government by the Constitution, nor prohibited by it to the states, are reserved to the states (or to us, the people). Basically, states are supposed to be in charge of everything not handed over to the federal government – things that affect everyday life like criminal law, education, speed limits, and even sewers. These are areas in which the people of the different states really are different societies that have different interests and identities. Fifty-five miles per hour may make more sense in Rhode Island than in Montana. What children need to learn and how they should do it depend a lot on the character and needs of the place where they live.
In the last 30 years, we’ve rediscovered that leaving states to design solutions to their problems is a smart way to make policy. It lets solutions be tailored to particular needs, and other states can see what works and what doesn’t. So Congress stopped trying to bribe the states to force all their citizens to drive 55 mph.
But the federal government continues to overreach, because too few elected and appointed officials have any regard for federalism as a principle in its own right. Federalism is one of America’s great principles of freedom. Vital state governments are an essential part of robust self-government in America. Our Declaration of Independence establishes the basic principles of justice for all government in America, federal and state alike. The Constitution then gives the federal government as much power – and only as much power – as the American people need to govern themselves justly on national issues. It leaves the people in each state to manage their particular affairs through their own governments.
This federalism makes sense in a country that is united morally by our fundamental principles of liberty and equality but is distinguished by a huge variety of passions, interests, needs, and traditions that are associated in many instances with the history and geography of the states. There has always been and will always be disagreement about what falls within the purview of the national government and what falls to the states. But these disagreements will be much more fruitful when we remember that we Americans set out from the beginning to be one and many at the same time.