Desperation Federalism in the United States: The Search for a Structural Solution to a Political Problem

One of the great curiosities of American federalism is that the term is nowhere mentioned in the Constitution itself. More curious still is that it appears nowhere protected from incursions by either the apparatus of state or general governments. But it is not that the founders were unaware of the need to include strong structural protections to guard the division of authority between newly subordinate state and a limited but powerful general government. It was quite clear that the Constitution, as designed in 1789 was built to provide strong limits to assertions of federal power. But 18th century political theorists, including bit not limited to the framers of the federal Constitution, unlike their 21st century progeny, were neither micro managers of elaborations of power frameworks; nor did they fear politics.

The Constitution was designed, like the European Union several centuries later, to structure the general government in a manner that made it impossible for that government to assert much authority without the complicity of states and the people. The election of the President was tied to state politics and layered deliberation through the electoral college. The power to tax was restricted. But most important of all, political power at the federal level could not be asserted without the approval of states. The Senate was not popularly elected, but was a creature of and served the interests of state governments. Essentially states controlled the amount of power that could be asserted at the center. And to that extent, at least, the framers also relied on political realities. Rather than constrain either state or federal government within a tightly drawn laundry list of powers, the framers left the actual boundaries between state and federal power to the political process. The openly restraints were the loosely worded positive grants of power allocated to the federal government. When states assembled in Congress (in the Senate) and the people assembled in Congress (in the House) determined that federal authority ought to be invoked, then, within the loose constraints of the Constitution itself, such authority could be asserted. Beyond that, the difficulties of raising substantial revenues served as an effective limit on assertions of federal authority. Politics could work to adjust the boundaries of federalism within this framework because the states' interests were directly represented in a critical institution of the federal governmental apparatus.

But the structural framework that effectively regulated federalism was slowly undermined over the course of the 19th century. The bitter divisions that led to the civil war interfered with timely election, and great scandals involving bribery, corruption at the state level added to a distrust of states as repositories of federal republican ideals. Moreover, by the end of the 19th century a national elite had arisen that increasingly found states in the way of the construction of national markets and a national society, and perhaps more importantly, the great not-yet-assimilated mass of immigrant voters in large cities threatened control of the election apparatus by making it harder for national elites and a national media to influence the direction of things. At the same time, the increasing need for federal intervention in national projects, and the conservative judicial approach to interpretation of federal tax powers placed great pressure on both local and national elites seeking to benefit from cross border projects operated at the federal level. The result, by the time of the American intervention in the first European War of the 20th century was a radical restructuring of the federal constitution by the imposition of direct election of senators and the adoption of a federal power to tax substantially all it desired. These changes, more than any others, substantially recast the structural framework of federalism. No longer a creature of state power, federalism became, by the beginning of the 10th century, purely a creature of federal largess--and adjusted by four institutions of federal power--President, Senate, House and Judiciary--with a primary loyalty to the national enterprise. That it took almost a century for the logic of these changes to become better known does not change the reality of the effects of these changes well before the rise of the current political divisions between what passes for "conservative" and "liberal" in 21st century America. All of this, of course, is well known.

Indeed, this reality and the consequences these changes might well have been influential abroad. The framers of the European Union were apparently well aware of the consequences to a federalist project solicitous of state power when framing the institutional structure of what would become the European Union. Anxious to preserve the powers of its Member States, the institutions of the European Union were designed to include one organization firmly vested in the interests of the Union as a whole, and the other, the European Council, to serve directly the interests of the Member States in the EU. See, Larry Catá Backer, The Euro and the European Demos: A Reconstitution, 21 YEAR BOOK OF EUROPEAN LAW (England) 13 (2002).; Larry Catá Backer, The Extra-National State: American Confederate Federalism and the European Union, 7 COLUMBIA JOURNAL OF EUROPEAN LAW 173 (2001); Larry Catá Backer, Forging Federal Systems Within a Matrix of Contained Conflict: The Example of the European Union, HARVARD JEAN MONNET WORKING PAPER, No. 4/98 (1998); 12 EMORY INTERNATIONAL LAW REVIEW 1331 (1998).

Now, today's version of American traditionalists seek to reinvent a structural element to federalism within the federal constitution. Take a recent case in point: Randy E. Barnett, The Case for a Federalism Amendment: How the Tea Parties Can Make Washington Pay Attention, The Wall Street Journal, April 23, 2009. Professor Barnett focuses on popular discontent by at least one segment of the American electorate (though how large a segment is open to dispute) in the form of "tea parties." These shows of discontent are pretty but useless; stronger medicine is required:

While well-intentioned, such symbolic resolutions are not likely to have the slightest impact on the federal courts, which long ago adopted a virtually unlimited construction of Congressional power. But state legislatures have a real power under the Constitution by which to resist the growth of federal power: They can petition Congress for a convention to propose amendments to the Constitution. Id.

But of course, such conventions, as Louis XVI learned in other circumstances, can be dangerous things, especially when the party in power might have other plans. And so more precision is required. "Here's how: State legislatures can petition Congress for a convention to propose a specific amendment. Congress can then avert a convention by proposing this amendment to the states, before the number of petitions reaches two-thirds. It was the looming threat of state petitions calling for a convention to provide for the direct election of U.S. senators that induced a reluctant Congress to propose the 17th Amendment, which did just that." Id.

So what kind of structural change can be used to revive federalism in the United States? Professor Barnett offers two solutions. One is partial and reactionary. The other is bureaucratic and substantive. For the first he would repeal the federal power to tax broadly--but not the construction of a directly elected House and Senate. "One simple proposal would be to repeal the 16th Amendment enacted in 1913 that authorized a federal income tax. This single change would strike at the heart of unlimited federal power and end the costly and intrusive tax code." Id. The other proposal is necessarily more elaborate. It would purport to limit federal power over commerce and the spending power. This in addition to the repeal of the power; to tax income. But the power to interpret these provisions remains in the federal courts. And states remain locked out of direct participation in federal legislative power. Instead, states and the federal government are invited to haggle constantly, in the courts, over the extent of this or that assertion of this or that substantive provision. The mindset is bureaucratic and technical. But to the extent that power is shifted--it moves from legislature to courts, precisely where Professor Barnett complains, that federal power has been boundlessly construed.

Though the idea invokes, as is both necessary and customary, the spirit of the framers for this purpose (e.g., "Section 3 adopts James Madison's reading of the taxing and borrowing powers of Article I to limit federal spending to that which is incident to an enumerated power." id.), this is hardly a traditionalist call. They are also unlikely to work. The proposed amendment has the byzantine feel of a bureaucratic solution to a political problem. As the Supreme Court determined with the last effort of a similar kind, such substantive based limitations--shorn of political flexibility--will prove unworkable. See, e.g., Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). The problem is not the money, as Professor Barnett suggests, through that is what Americans tend to focus on. The problem is power.

As long as there does not exist an institution within the federal apparatus loyal to the interests of the states, and bound by that loyalty to apply those interests at the federal level, there will be no effective form of federalism. There will only be its shadow. Perhaps that is all that modern American traditionalists want--the appearance of federalism. Thus a generation's worth of "traditionalist" Supreme Court cases carving out some sort of "federalism" within the current version of the Constitution, that provides more bark than bite in fact. See, United States v. Morrison, 529 U.S. 598 (2000); City of Borne v. Flores, 521 U.S. 507 (1997); New York v. United States, 505 U.S. 144 (1992); Printz v. United States, 521 U.S. 898 (1997). Each of these attempts at interpretive structural protection for federalism (understood as protection of states against assertions of federal power) is both narrowly defined and dependent on federal institutions for their elaboration and protection. All focus on this or that substantive element that does little to provide a comprehensive principle of the nature of power left to the states. The current slate of proposals, like those of Professor Barnett, add to the window dressing. They are more form and structural micro management without politics, principle and flexibility. This is hardly the most significant approach to constitutionalism imprinted on the Republic by the founders. See, e.g., McColloch v. Maryland, 17 U.S. (Wheat.) 316 (1819). Yet if that is the case, then this is much ado about nothing but power--personal power grounded in the arbitrariness of the appearance of ideological difference without distinction in fact.