On the Division of Power in the United States

September 12, 2009

I prefer local government to big government.  It is easier to contact a city council person than a state assemblyman, a state assemblyman than a congressman, and a congressman than the president.  Government decisions should be made as close to the people as possible.  Nine old men and women residing in Washington D.C. haven’t got the foggiest clue what is in the common good for school children in Hawaii, and yet those robed philosopher kings in the Supreme Court invented the Incorporation Doctrine to apply the constitution’s individual rights provisions to the states–then they declared their own ability to make up new rights under the guise of the constitutional notion of “due process,” and therefore now have the power to dictate matters of curriculum and practice to the Hawaiian school boards.  You’d think that the Hawaiians would get to decide whether they’ll have school prayer or teach evolution and/or creationism, but they cannot.  Despite our current situation, our country’s founders largely believed that the federal government should only do the things that are necessary for the federal government to do. 

There was a time when the federal government did not exist.  The United States had declared their independence, but had no constitution, and power resided in the state governments.  Those who sought to create a federal government had to convince the states to go along.  One of the sources of resistance was the suspicion (read: prophecy) that the federal government would usurp the states’ sovereignty.  The federalists had to assure the states that the federal government would not take more power than the states intended to give it (which was quite limited). 

James Madison responded to those fears in Federalist No. 44 (1788), summarizing the powers that must reside in a federal government and concluding:

We have now reviewed, in detail, all the articles composing the sum or quantity of power delegated by the proposed Constitution to the federal government, and are brought to this undeniable conclusion, that no part of the power is unnecessary or improper for accomplishing the necessary objects of the Union. The question, therefore, whether this amount of power shall be granted or not, resolves itself into another question, whether or not a government commensurate to the exigencies of the Union shall be established; or, in other words, whether the Union itself shall be preserved.

Madison proposes that the minimum amount of power necessary for preservation of the union be given to a federal government under the constitution.  He emphasizes that the proposed constitution contains no measure that is not necessary for the preservation of the union.

With this, I am on board (and apparently the early state legislatures were, too).  However, it would be an understatement to say that our federal government today exceeds those powers by leaps and bounds.  Our federal government now runs private companies, terminates CEOs, regulates and funds healthcare, imposes and funds an abortion regime, regulates and funds primary school education, imposes standards on who can be a public school teacher, dictates state criminal laws and procedures, runs a comprehensive retirement compensation system, etc.  There is a long explanation of how and why our federal government evolved into the current monstrosity, but that’s beside my point. 

My point is merely that the federal government should show restraint and leave to the states all issues not necessary for the preservation of the union (the Tenth Amendment to the Constitution, which is essentially ignored now, states: “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 proposed universal healthcare is one example of attempted federal over-reaching. 

If any state wants to fund universal healthcare, then from a constitutional standpoint I can have no objection.  That is (was) one of the great aspects of our federal experiment: each state has the power to try the innovative, and each other state has the right to watch and take notes.  If you’re in Arizona and want to see if universal healthcare will work in your state, it’s much wiser to see if it can work in California than it is to compare Arizona to Japan.  (It might also be wise for Arizonans to observe whether California’s social programs are causing the state to go bankrupt.) 

In sum, it is possible to oppose the federal government’s planned healthcare takeover while simultaneously supporting socialized healthcare in theory on a local level.  That would be constitutional, and probably much wiser than experimenting with a new universal healthcare package on such a grand scale (only two other countries have more people than the U.S.).  Each state is much better equipped to deal with the particular issues unique to their regions.

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6 Responses to “On the Division of Power in the United States”

  1. Jeff Baitis Says:

    I posit that the growth in power of the central government is a natural step in the evolution of an abstract, global community: as family and friends have moved apart and live in different states, society increasingly is forced to communicate in terms of mass media, which is itself controlled by the FCC (a federal commission).

    What do members of a “community” have in common with each other? Definitions include: interdependent organisms inhabiting the same region, agreement as to goals, and common ownership. The fragmentation of communities due to cultural, economic and personal values has given rise to extreme geographical disbursement of family members. Young people leave home, go to school in other states, and get jobs where they can (often in large and impersonal cities). The values of building relationships with friends that you have known from birth, and the value in reconciling with one’s neighbor are not that important to society anymore. Why should I bear through hard and bitter personal relationships when my job will probably relocate me next year? Why bother reconciling with my wife when I can just go shopping for a new one, pick up, and move to a new city or state?

    The American community identity, in a geographic sense, has been usurped; the personal identification of being associated with a specific area is now a square peg in a round hole because we all have friends and family in different places that we must talk to on an undisciplined and informal basis. Our human need to belong mandates that we should reach out to our fellow man, but how? My community of friends has become an abstract set of Facebook friends who exist under different local governments and diverse circumstances. Ultimately, *I* get to choose my own community based on the mutual agreement of two persons; instead of dealing with more difficult relationships involving grief and pain, I can simply delete them.

    As a result of this transition into an abstract information- and service-based society, we have increasingly found ourselves in the age of celebrityism. In order to talk, we are all forced to find common ground, and discuss ideas (memes) that we are all aware of. Mass media has become la lingua franca that can be discussed anywhere in the country. The need for people to feel personally comfortable and find common ground when talking has resulted in a lack of interest in local politics and policies. The bottom line is that community interests can no longer be accurately represented by elected officials, who have been elected based on geographic consideration because community is no longer primarily based on geography.

    Do your friends talk about important issues regarding local politics? Do they talk about issues facing their congressional representatives? Or do they instead talk about that which our eloquent and visually appealing President Teleprompter has espoused?

    Without a need for local government, democratic society will continue to decay and erode, until some sort of pain point is reached. Small voices in a geographic community that are no longer valued will be unheard and continue to be unheard until a more traditional, a more dangerous, more courageous, more altruistic, and more godly sense of community can be, once again, established.

    I encourage you to consider Free Radio Berkely ( http://www.freeradio.org/ ) as an interesting discussion point. Though the conservative capitalist may have a lot to take to issue here, open your mind to the possibilities of a source of information that is more community-centric and not heavily restricted or controlled by the Federal Communications Commission.


  2. Jeff:

    Great comment! Very valuable insights. Some thoughts:

    I think you have a bit of a chicken-or-the-egg issue here. Allow me to use the term “Technology” to cover mass communication, the Internet, and ease of transportation (three factors you identify in the loss of a sense of community in the US). While Technology has definitely been a factor, the shift from local to federal power precedes the rise of Technology. When the US started to usurp the states’ power, no one had ever heard of the Internet or television. The Selective Incorporation Doctrine (by which the Supreme Court applied federal constitutional limitations on state governments) began to develop in 1897. In the 1947 Everson v. Board of Education case, the Supreme Court first applied the Establishment Clause (the first amendment provision that the federal government could not establish a religion) to the states, invalidating a local school board’s decision to fund transportation to schools throughout the community, including to private religious schools, because it amounted to a governmental establishment of religion. This federal usurpation of local government power, through the illegitimate application of a restraint on federal government to a local government, took place well before the power of Technology had set in.

    You also mentioned “common ownership” as a source of community. That sort of geographic community still exists, notwithstanding Technology. Local children go to local schools. Despite that a child’s facebook network may cover dozens or even hundreds of people across the nation, that child has to get up and go to the local school the next day. Try as they might, fifth graders can’t delete their teachers, and in many cases their parents can’t, either. The local parents can be said to “own” the school and many of them make their voices heard at school board meetings. If the federal government releases its clutches on the school board, you’ll have even more parents attending those meetings.

    As to your celebrityism point, do you think the age of celebrityism is caused by Technology or another contemporary problem (or is it even a contributor to Technology)? I’ve heard it argued that our love for celebrity has risen from our moral relativism; we lack heroes that are objectively good, so we cling to that which we desire (fame and fortune) and idolize those who have it. Celebrity may provide us with a point of commonality across places, but so does politics, art, classical music, literature, history, philosophy, religion, morality, law, etc. The fact that most people don’t know much about these subjects does not stem from the centralization of power, but rather an epidemic failure of education.

    Do your friends talk about important issues regarding local politics? Do they talk about issues facing their congressional representatives? Or do they instead talk about that which our eloquent and visually appealing President Teleprompter has espoused?

    I am probably not the person to ask because I’m a law nerd, but yes, I discuss all of the above with my friends. However, as you note, national issues dominate the discussion, but only because so many issues have been made national (by the federal government). When discussing welfare, we should be speaking of our state government, but instead we discuss our federal government because that’s the decision-maker now. If the power is diluted to state and local governments, that is what/whom people will discuss. It is the issue, and not the level of government, that will attract attention or not. People may still want a rock star for a president, but it won’t be because they think the rock star will change their lives.

    Without a need for local government, democratic society will continue to decay and erode, until some sort of pain point is reached.

    You hit the nail on the head. I continue to call upon federal government to restrain itself and return power to local government, at which time people will need it. I am skeptical that it will happen in my lifetime, but anything is possible these days.

    Though the conservative capitalist may have a lot to take to issue here, open your mind to the possibilities of a source of information that is more community-centric and not heavily restricted or controlled by the Federal Communications Commission.

    I actually don’t consider myself fully conservative, even though it looks that way because of my stances on federalism (I oppose all federal welfare, so you might think I oppose all welfare, but that isn’t the case). At any rate, I don’t listen to the radio, but I share your suspicion for all corporate media. I have practiced before the FCC and met the commissioners, so I know how they make decisions (and that doesn’t give me comfort). The problem is that over the airwaves there are a limited number of “voices” and the government gets to decide which voices will be heard. With the development of alternative forms of media in recent years, hopefully the FCC’s media regulations will eventually become obsolete. With that, hopefully the main stream media loses its power of influence as well.


  3. One additional example: the federal government now proposes to take over student loans. The federal government is already involved in the student loan business, up to a certain cap, but students still often must rely on private lenders. The federal government now proposes to eliminate private lenders and do all of the education lending.

    This is problematic from a federalism and a sustainability standpoint. We currently have students that take out $140,000 in student loans for a photography degree. Should the American taxpayer be on the hook for what will surely be a loan default, let alone taxpayers in states that are thousands of miles away? The federal government will become even more intimately involved in students’ lives, and spread (what should be) local tax burdens across the country.

  4. Jeff Baitis Says:

    Hey NaturalLawyer:

    Thank you very much for your excellent response. I am very interested in understanding the topic of division of power because I find this to be of fundamental importance. I particularly enjoy understanding the history of law as it relates to the gross expansion of federal power that we continue to enjoy today. *grimace*

    That said, there is a definite chicken-in-the-egg here, but I think it’s worth exploring. Correct me if I’m wrong, but in theory, a healthy representative democracy’s laws should reflect a society’s values and needs, unless we have tyrants in our midst. (Governmental balance of power should help to reduce tyrannies, right?) My argument is that sociological developments precede the laws that reflect the values of a society.

    Okay, so, postulations follow. Without getting too technical, the Incorporation Doctrine was enacted to ensure that the States were bound to apply the Bill of Rights to their citizens (the assumption here is that a State or States were restricting the rights of citizens), right? Thus, the Incorporation Doctrine essentially established a basis for the Federal government to apply positive rights in order to fix this mess? How *should* have this problem been addressed?

    Okay, fast forward to Everson v. Board of Education. World War II, lots of federal power required to blow up Nazis in foreign lands. Technology leaps forward. Families are shattered and communities broken. It seems that the sociological stage had been set for a big expansion of federal government — especially w.r.t. care of the citizens who selflessly helped save us (and other nations) from foreign threats. Incidentally, this seems like the basis for federal welfare. Is Everson v. Board of Education just yet another result of the populace expecting Uncle Sam to begin interfering with personal lives on a Federal level?

    I really like that you pointed to schools as being our big point of community nowadays. It strikes me that California is a single’s land; this place is not very family-friendly for a number of reasons. Furthermore, it seems like public school is increasingly useless. I know so many people… SOOO many… who have elected to home school here. The rest of the children of high achievers are enrolled in private schools. When I lived in Marin County, it was made clear to me that the public schools did not sufficiently prepare students for college… in fact, public schools no longer offered certain course material that UCSF required of incoming freshmen!! Of course, this contrasts heavily with my home state of Montana, and I listened to these tales in disbelief, but was assured that they were true.

    If public school in this state is indeed this bad… like you mentioned, it’s really the only remnant that ropes people from ages 4-17 (as students), and, later, 30-40 (as parents), then the core of any sort of geographic sense of community is collapsing rapidly.

    You asked if I think that celebrityism is a result of Technology, or another problem. I would argue that celebrityism has become an epic problem due to several things: failed parenting, insulation from community, convenience, and, especially, a mass media system that has perfected the neuroscience of advertisement. Prior generations that were not steeped in advertisement, as it appears today, are especially susceptible to this deadly cocktail.

    However, I remain very hopeful. Millenials are creatures of the deep. If you contrast the Batman of the 1990s with the latest Batman, you’ll see that Millenials like complicated and moralistic themes that delve into the darkness of the human soul. Are Millenials fed up with their parents’ deficiencies? (It sickens me to think that our parents executed one out of three of our friends in utero). The Millenial Man is now more emotionally free than ever. We carry our babies, in public, in front of us. We are free to have community due to our understanding of technology. We understand that television is fake, and watch ‘reality shows’ — parodies of that which we understand to be false.

    We look for community, and what we see is what we are — a global community of members enabled by technology. Pity that we are blind to those who do not have access to the technology on which our current culture is based. Pity that I can only teach so many grandparents how to use email. Pity that our predecessors have let schools fall into such disarray. Pity that our need for complicated moralisms remain unsatisfied with relativistic bullshit because of false-Christian Christians who represent the face of modern Christianity (thanks, mass media — hypocrisy sells good, don’t it?)

    The Millenials are stuggling with these issues. We want changes, but our community is defined in a really odd and synthetic manner. Our odd and synthetic Federal government is what represents us best, and that is who we have elected. But I think our hearts are in the right place. If Mom had access to more affordable health care, perhaps she wouldn’t have felt like she to kill my baby brother before he was born. Maybe if I could have helped her, somehow, things would have been better. Maybe I can help her now. We Millenials, connected with our emotions, have a much better chance of coming to terms with our parents’ broken lives, and this is our subconscious utterance: “change.” Problem is we don’t know how to do it correctly, just yet… we’re busy discovering this thing called “history” that wasn’t taught to us in schools… and discovering “Christianity,” which wasn’t taught to us in church… it means actions first and words later. It means being loving. It means being a voice for the oppressed, being compassionate and meek, being peacemakers and caretakers, and finally, learning what “community” actually is and how to live in and help it.


  5. Jeff:

    Another astute comment. I am going to take some time to ponder and address the law/community issues (you raise some provocative points), but in response to your last paragraph, I immediately thought of the Nurturing Network. This is a group of people throughout the nation that live the Pro-Life message. They do so by, among other things, opening their homes to pregnant women to live during their pregnancy, addressing their needs and supplying them with the support they need to make the right choice. These people surely have mountains of treasure stored up for them in heaven.


  6. Without getting too technical, the Incorporation Doctrine was enacted to ensure that the States were bound to apply the Bill of Rights to their citizens (the assumption here is that a State or States were restricting the rights of citizens), right? Thus, the Incorporation Doctrine essentially established a basis for the Federal government to apply positive rights in order to fix this mess? How *should* have this problem been addressed?

    The answer to your first question is “no,” because the Incorporation Doctrine was never “enacted.” A panel of unelected judges made it up. It was not a result of the democratic process or any pressure by the people (the people have no meaningful ability to pressure the court). Moreover, the idea that states were “restricting the rights of citizens” is incorrect. States were doing what they had the power to do. The U.S. Constitution only constrained the federal government (insofar as the Incorporation Doctrine is required). The citizens’ rights against their state governments are contained in their state constitutions, over which the federal judges have no power. An apt analogy would be the United Nations or an international court dictating United States law because the U.S. is violating its own citizens’ rights somehow and the U.S. is a member of the U.N. There simply is no authority to do so, regardless of the U.S.’s membership in the U.N.

    The federal government did not fix a “mess,” it made one. The federal government should not have addressed this “problem” (to the extent you’d even be justified in calling it a problem); it should have allowed the citizens to participate in the political process and amend their state constitutions. California amended its constitution just last year to reflect the will of the people, while it is nearly impossible to amend the U.S. constitution (which is why judges have turned it into a constitutional kitchen-aid so they can use it to make whatever laws they want). The Incorporation Doctrine is an excercise of power, not a response to democratic pressure.

    Okay, fast forward to Everson v. Board of Education. World War II, lots of federal power required to blow up Nazis in foreign lands. Technology leaps forward. Families are shattered and communities broken. It seems that the sociological stage had been set for a big expansion of federal government — especially w.r.t. care of the citizens who selflessly helped save us (and other nations) from foreign threats. Incidentally, this seems like the basis for federal welfare. Is Everson v. Board of Education just yet another result of the populace expecting Uncle Sam to begin interfering with personal lives on a Federal level?

    There is something to this thinking, but again, the judges are not politically accountable. It was not federal elected officials (such as Congressmen or the President) that responded to an alleged establishment of religion, it was the court, the members of which have never been impeached or faced re-election, so there is not much to fear as far as public backlash. Even so, when appropriating power to itself, the court is pragmatic enough not to appropriate more than it can get away with (if the people get upset enough with the courts, they may demand that their elected official defy the courts’ authority, in which case the judiciary would be rendered impotent).

    Even so, if you ignore the legal development in Everson v. Board of Education, the federal government had already grown to an unprecedented level of activity before WWII, in response to the Great Depression (soon to be entitled the first Great Depression…).

    It is helpful to note that the legal intrusion into states’ authorities has been both liberal and conservative, and not necessarily tied to big or small government. In 1905, during the popularity of laissez-faire economics, the Supreme Court invalidated a state-level minimum wage statute on the ground that it violated the due process clause of the 14th Amendment (yes, the same due process clause later used to support Roe v. Wade). The Court’s anti-progressive decision was not likely a result of the people’s wish to have a more active federal government.

    In 1937 (amidst the Great Depression), FDR threatened to “pack the court” if they did not find a state-level minimum wage law to be constitutional. There is no constitutional requirement that the Supreme Court have exactly 9 judges (there is no limit; the number 9 is just a tradition). FDR implicitly told the Court (by proposing to appoint 15 justices) that if they decided the case the wrong way, they’d see a lot more colleagues who are willing to approve a state-level minimum wage. FDR had the popularity, at the time, to get away with this move. The Supreme Court suddenly changed its mind and found that the minimum wage law was constitutional (and magically, the proposal for more justices was subsequently abandoned). All the while, FDR was dramatically expanding federal government programs, so it is not as though FDR sought to keep the federal government out of state-level affairs.

    Thus, court intervention into state-level controversies is not necessarily conservative or liberal, and not necessarily related to the expansion of federal programs. I would call the court’s intervention into state affairs an expansion of federal power (because the Supreme Court is a federal entity), but it’s not necessarily part of the expansion of the size of the federal government.

    To restate my thesis as relates to the above, I think that state level minimum wage laws are constitutionally legitimate (contra the conservative-minded Lochner case) but I think that the federal level minimum wage law is unconstitutional (there is no basis for the federal government’s interference in private contracts, except maybe in the case of inter-state employment). The federal government and federal courts ought to have no concern or interest in the state-level minimum wage law, or for that matter state-level abortion laws, healthcare laws, education laws…

    I really like that you pointed to schools as being our big point of community nowadays. It strikes me that California is a single’s land; this place is not very family-friendly for a number of reasons. Furthermore, it seems like public school is increasingly useless. I know so many people… SOOO many… who have elected to home school here. The rest of the children of high achievers are enrolled in private schools. When I lived in Marin County, it was made clear to me that the public schools did not sufficiently prepare students for college… in fact, public schools no longer offered certain course material that UCSF required of incoming freshmen!! Of course, this contrasts heavily with my home state of Montana, and I listened to these tales in disbelief, but was assured that they were true.

    If public school in this state is indeed this bad… like you mentioned, it’s really the only remnant that ropes people from ages 4-17 (as students), and, later, 30-40 (as parents), then the core of any sort of geographic sense of community is collapsing rapidly.

    This is a good point. I attended both public and private schools at various points of my education, and if I had kids I’d probably want to home school them. Even so, there are home-school networks, and private schools still constitute a community. Those will still be geographic communities, as will churches. If people (or families, at least) look to schools and churches to fulfill the longing for in-person community, and public schools don’t satisfactorily meet that need, so much the better. Hopefully people will begin to see that government-controlled school isn’t such a good idea. I don’t have a problem with government funding schools, but I do have a problem with the government controlling curriculum. There are systems (like vouchers) that satisfy both of these problems and still provide a place for community. Perhaps the schools will fall into such disrepair that moves are necessary? I understand Los Angeles Unified is considering greater involvement with private entities to manage the operation of the schools.

    Even so, as you have said, there still remains the problem that people turn to Technology *instead of* in-person community, which may mean the public schools become neglected without demand for change.

    We look for community, and what we see is what we are — a global community of members enabled by technology. Pity that we are blind to those who do not have access to the technology on which our current culture is based. Pity that I can only teach so many grandparents how to use email. Pity that our predecessors have let schools fall into such disarray. Pity that our need for complicated moralisms remain unsatisfied with relativistic bullshit because of false-Christian Christians who represent the face of modern Christianity (thanks, mass media — hypocrisy sells good, don’t it?)

    The Millenials are stuggling with these issues. We want changes, but our community is defined in a really odd and synthetic manner. Our odd and synthetic Federal government is what represents us best, and that is who we have elected. But I think our hearts are in the right place. If Mom had access to more affordable health care, perhaps she wouldn’t have felt like she to kill my baby brother before he was born. Maybe if I could have helped her, somehow, things would have been better. Maybe I can help her now. We Millenials, connected with our emotions, have a much better chance of coming to terms with our parents’ broken lives, and this is our subconscious utterance: “change.” Problem is we don’t know how to do it correctly, just yet… we’re busy discovering this thing called “history” that wasn’t taught to us in schools… and discovering “Christianity,” which wasn’t taught to us in church… it means actions first and words later. It means being loving. It means being a voice for the oppressed, being compassionate and meek, being peacemakers and caretakers, and finally, learning what “community” actually is and how to live in and help it.

    Your description indeed points to the need for Millenials to get in touch with each other in person (for more than drinking and sex), and to get in touch with members of prior generations for wisdom and guidance. Loving the oppressed, etc. requires in-person contact in the context of a community. It sort of reminds me of the man who responded to Christ’s directive to love one’s neighbor as one’s self– he asked, “and who is my neighbor?” (The answer was the parable of the good samaritan.) You cannot “virtually” help your friend or neighbor move into his new home. In some ways, though, technology can assist local community (a school board website calendar may help parents know when meetings are so they can attend) as long as it does not replace it.

    Again, like you say, some people aren’t going to abandon their Technology bubble, or their dependence on an impersonal centralized federal government, until they have to. I’m not sure if we’re anywhere near that breaking point, but I think it’ll come eventually. Nature always gets its due.


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