Henningsen: Tension Over Federalism
05/20/10 7:55AM By Vic Henningsen
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(HENNINGSEN) State opposition to federal authority has a long pedigree in American history, going back to early debates over the meaning of the Constitution. Anti-Federalists, who opposed ratification, distrusted centralized power and wanted sovereignty-ultimate power to govern-to rest as close to the people as possible. They feared a national government with vastly expanded powers.
They had good reason. Article I of the Constitution contains the famous "elastic clause", permitting Congress "to make all laws which shall be necessary and proper" within the scope of the Constitution. This rapidly gave rise to the so-called doctrine of implied powers and loose construction of the Constitution: that, if the document doesn't specifically deny Congress a particular power, Congress has and may exercise that power, as long as it's "necessary and proper." Article IV grants citizens of each state "all privileges and immunities" possessed by citizens in the other states and requires that states give "full faith and credit" to each other's public acts, records, and judicial proceedings. And Article VI unequivocally mandates that the Constitution and the laws made under it are the "Supreme Law of the Land."
Anti-Federalists sought protection of state authority in the Bill of Rights-and got it, especially in the Tenth Amendment. "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."
Those twenty-eight words seem to guarantee state control over internal affairs. But do they? Let's ask some questions.
Can the federal government protect the right of individuals to own slaves in states that have abolished slavery?
May a state nullify a federal law if it believes that law is unconstitutional?
Can the federal government require states to comply with unfunded mandates, when those mandates force states to re-arrange their budget priorities?
If a legal contract in one state is valid in the others, shouldn't a same-sex marriage authorized in one state be valid in others too?
Can a state take federal lands under the eminent domain process?
Should state governors, and not the federal government, have the power to control and recall National Guard troops?
Can a state refuse to carry out federal health care reform legislation unless that legislation is also approved by the state legislature?
Can states change federal immigration policies?
All of these questions have been or are now the subject of intense debate and legislative and legal action. At the heart of that debate is a question going back to the 1780's: whether the federal government is supreme or whether it has only limited, specified powers in a system where states control decision-making regarding domestic issues? Despite legislative action, supreme court decisions, and a civil war, the question has never been finally settled. Indeed, it's not clear that the framers intended it to be settled. For better or worse, tension over federalism is a fundamental part of American political life.