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InsiderOnline Blog: May 2014

The Point of Federalism Is to Protect the Rights of the People, Not the Rights of States

Noting the rash of stories about new federal requirements for school lunches, David Corbin and Matt Parks point out how inadequate is the Republican waiver-based defense of federalism, which they say “simply shovels a little less dirt on [federalism’s] grave”:

Approximately one out of every fourteen Americans is a government employee today, compared to one in twenty-two Americans in 1955. The greatest part of the total increase of government employees amounts to the enlargement of state and local government employment. It matters little if the lunch lady pouring chocolate milk down the sink and serving fruits and vegetables is a local government employee if her job ultimately depends on monies slopped out by federal bureaucrats wielding carrot sticks.

Which brings us to the third part of Madison’s argument as to why the proposed federal republic was a great improvement over the earlier confederation; namely, its powers would be “few,” “defined,” and “exercised principally on external objects, as war, peace, negotiation, and foreign commerce.” Madison likely never could have imagined the Federal government adding management of sodium intake to this list as the American people sat listless on the political sidelines.

As troubling as the death of federalism is, we need more fundamental reform, as the Republican response to the school lunch mandates makes clear. There is, after all, an even more important third leg to the governing stool, implicit in Madison’s argument, but made explicit in the 10th Amendment: the people. Often conservatives read that Amendment as if it is meant to protect the rights of the states. But it is much better understood, both textually and historically, as an attempt to protect the people’s distribution of powers among themselves, the states and the national government. If we really want to restore 10th Amendment government, we’ll need to work much harder at removing power from both state and federal hands than at replacing the divine right of the Washington King with the divine right of state Barons. [The Federalist, May 26]

Michael Greve made a similar argument in a recent issue of The Insider:

The balance question isn’t just beside the point; it is an assault on the foundations of the republic. To quote Madison’s impassioned language in Federalist 45:

Was ... the American revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual states, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty?

The answer he is trying to evoke is: Hell, no. […]

States are Purely Instrumental. If they can advance the “real welfare of the great body of the people,” good for them. If they stand as a hindrance, ignore them or get rid of them. That is the fundamental calculus and the irreducible premise of the United States Constitution. The cartel federalism we have is profoundly state-friendly: It serves the interests of the political class. The constitutional, competitive federalism we need is citizen-friendly: It would discipline government, not help it grow. [“But What Kind of Federalism?“ by Michael S. Greve, The Insider, Winter 2013.]

Posted on 05/28/14 02:46 PM by Alex Adrianson

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