Under the Constitution, powers and functions not assigned to Congress are the province of the states. This basic limitation on the federal government should prevent it from legislating issues that are the moral purview of local communities, such as drinking ages, traffic laws and education policy. This principle was known as dual federalism, and made each political society, the state and the nation, supreme and unchallenged within its own constitutional duty. Now, however, the financial muscle of the federal government threatens to break this basic instrument of moral democracy by sowing dependency among the states. If courts or Congress will not respect proper constitutional limits, then the people should enforce respect by constitutional amendment.
The ideal of dual federalism has been replaced in practice with that of cooperative federalism, under which each level of government assists another level's duties: the federal government funds various state functions, such as education and transportation infrastructure, and the states help enforce federal policy at the local level. Yet this cooperation is not a meeting of equals. Although the federal government may gain some level of efficiency by employing local knowledge, the states receive financial support that transforms their entire political structure. As state tax revenue is freed up by federal funding, other functions - whether tax relief or government programs - absorb the newly available money, causing the whole social contract to adapt to federal intervention.
Under laws such as the Minimum Drinking Age Act of 1984, the federal government uses this dependency to force states to amend laws that are not within direct federal power. In South Dakota vs. Dole, the Supreme Court permitted this use of power, so long as it is not "coercive" and serves some reasonable national purpose. This is a meaningless restriction. If drinking, union or education policies were federal interests, the federal government would have the authority to regulate them directly. These are not federal interests, but rather interests specific to local communities. These issues are not within the jurisdiction of the federal government and that intrusion, not the degree of its pressure, is the problem.
The respect accorded to the states has diminished as cooperative federalism morphed into coercive federalism. States are sacred democratic societies, bound together by unique histories, cultures and customs - not the instruments of central planners. Statutes such as the Minimum Drinking Age and programs such as Race to the Top make these societies tools of politicians in Washington who think they can regulate best and that their idea of a good society is all that matters. When respect for the independent spirit of states is diminished, so is the respect for their people. To centralize a cultural or legal choice is to say that those at the fringes are unworthy of making the choice.
Such an attitude saps at pluralism, the basic root of America's intellectual and moral strength. The particular culture of any state is, as the phrase goes, "a laboratory of democracy," where experimentation, or preservation, can be practiced. As California prepares to (probably) legalize marijuana in a popular referendum, the country will have an opportunity to learn the consequences of such a policy without suffering them. If the federal government, whether by rank force or financial manipulation, attempts to undermine this, it will show contempt for democracy and for the role of the states, just as the Minimum Drinking Age Act did.
Although the federal government is comprised of Americans, it cannot respond to the preferences of everyone everywhere all the time. One-size-fits-all laws follow an elitist, rather than a democratic spirit. Those rights and needs that truly are the birthright of every American are enshrined in the Bill of Rights, applied to the states by the Fourteenth Amendment. If the spirit of self-governance is to survive in America, then the Constitution must lift it above the swelling waves of federal legislation that threaten to overwhelm it. Given that the capacity exists for the states to initiate constitutional amendment without recourse to Congress, their sense of democratic self-preservation should demand they act. And while cooperative federalism may be maintained, the Constitution should force Congress to cut the strings attached to funding.
Roraig Finney is a Viewpoint writer for The Cavalier Daily.
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