By Fred Thompson
July 27th, 2007
The Framers drew their design for our Constitution from a basic understanding of human nature. From the wisdom of the ages and from fresh experience, they understood the better angels of our nature, and the less admirable qualities of human beings entrusted with power.
The Framers believed in free markets, rights of property and the rule of law, and they set these principles firmly in the Constitution. Above all, the Framers enshrined in our founding documents, and left to our care, the principle that rights come from our Creator and not from our government.
We developed institutions that allowed these principles to take root and flourish: a government of limited powers derived from, and assigned to, first the people, then the states, and finally the national government. A government strong enough to protect us and do its job competently, but modest and humane enough to let the people govern themselves. Centralized government is not the solution to all of our problems and – with too much power – such centralization has a way of compounding our problems. This was among the great insights of 1787, and it is just as vital in 2007.
The federalist construct of strong states and limited federal government put in place by our Founders was intended to give states the freedom to experiment and innovate. It envisions states as laboratories in competition with each other to develop ideas and programs to benefit their people, to see what works and what does not.
This ingenious means of governing a large and diverse nation prevailed for more than a century. But today our Constitution and the limited, federalist government it established, are considered by many to be quaint or out of touch with the world we live in, to be swept aside by political expediency.
The Supreme Court sometimes ignores the written Constitution to reflect its view of the times. So does Congress, which routinely forgets that our checks and balances, the separation of powers and our system of federalism are designed to diffuse power and protect the liberties of our people. Before anything else, folks in Washington ought to be asking first and foremost, “Should government be doing this? And if so, then at what level of government?” But they don’t.
The result has been decades of growth in the size, scope and function of national government. Today’s governance of mandates, pre-emptions, regulations, and federal programs bears little resemblance to the balanced system the Framers intended.
This in no way diminishes the important role played by the national government, including ensuring our national security, and regulating interstate commerce to promote free markets. Indeed, a commitment to federalism would help the federal government do a better job in addressing national emergencies and emerging threats, because it could focus on these issues rather than on everything else it is trying to do. A proper regard for constitutional boundaries would also go a long way in avoiding the arguments that follow when Washington acts by decree, disregarding the elected representatives of the fifty states.
You know better than anyone how involvement from Washington affects nearly every policy, program, and aspect of your jobs. But beyond the nuisance of duplicative state and federal requirements, one might wonder if a division of responsibility between the federal government and the states is still important. The answer must be a resounding yes.
Federalism is not an 18th century notion. Or a 19th century notion. It retains its force as a basic principle in the 21st century, because when federalism is ignored, accountability, innovation, and public confidence in government at all levels suffer.
It is as true today as it ever was: the closer a government is to its people, the more responsive it is to the felt needs of its constituencies. Too often, however, state and local leaders have to answer to federal bureaucrats first and their constituents second. When the federal government mandates a program that states and localities are forced to implement, or when a federal grant program is created to fund a specific state or community need, it blurs the lines of accountability.
Who answers to the people if a program fails? The federal government will point to state authorities carrying out the program; the states will point to the federal government, which came up with the program in the first place. And in the end no one is more confused than the people the program is supposed to be serving, who can’t even say for sure who is responsible for what. This does not argue against all federal programs but it does require the recognition that there, indeed, are trade-offs.
Back in my days in the Senate, I found myself on the short end of a couple of 99 to 1 votes. They involved issues that had been under the purview of states for over 200 years. I asked why we should federalize what rightly were state and local issues.
I’ve been saying it for years, and it bears repeating: what works in Tennessee may not work in Nebraska and may be different from what succeeds in Oregon. That’s why President Ronald Reagan compared federalism to letting a thousand sparks of genius in the states and communities around this country catch fire. It’s not a perfect system, but it works a lot better than the alternative of central planning.
We need to allow local authorities to apply their own good ideas and use their own good judgment. Each state can find its own way, learning from the successes and failures of the others. There is a wealth of creativity and initiative out there in the states, and often the best ideas in Washington started out as state initiatives.
A good example of this early in my Senate service was welfare reform. We were warned that terrible things would happen if we went forward with a bill – a fundamental commitment would be abandoned and, among state governments, a “race to the bottom” would begin.
But key to our approach were elements of welfare reform that had proved successful in various states, such as Colorado, Michigan and Wisconsin. The result was a law that allowed us to better meet our commitments to our fellow citizens. It was one of the great political successes of the 1990’s, because Washington – for once – had the good sense to learn from state and local authorities and empower them in return.
When you hold firm to the principles of federalism, there’s another advantage: our federal government can better carry out its own defining responsibilities – above all else, the security of our nation and the safety of our citizens. Sometimes I think that our leaders in Washington try to do so many things, in so many areas, that they lose sight of their basic responsibilities.
We saw some improvement in the post-1994, “Contract with America” takeover of Congress – strings to federal programs were cut, more federal programs were being turned over to states, historic legislation to reduce unfunded mandates became law, and we rolled back the Clinton anti-federalism executive order. But in recent years we’ve seen backsliding.
The recent immigration bill was a case in point. That bill failed, and it failed for good reason. The federal government simply had no credibility on the issue.
The promises of the 1986 immigration bill have not been fulfilled. Current laws have not been enforced. The federal government has been failing in its fundamental responsibility to control the borders. Worse, when state officials have tried to act with reforms of their own, federal authorities have gotten in the way. In the end, many in both parties in Congress have learned a lesson: promises about immigration reform aren’t worth much unless you have credibility. And in this case there’s only one way that credibility can be regained. Federal leaders must do their job and secure the borders of the United States.
Law enforcement in general is a matter on which Congress has been very active in recent years, not always to good effect and usually at the expense of state authority. When I served as a federal prosecutor, there were not all that many federal crimes, and most of those involved federal interests. Since the 1980’s, however, Congress has aggressively federalized all sorts of crimes that the states have traditionally prosecuted and punished. While these federal laws allow Members of Congress to tell the voters how tough they are on crime, there are few good reasons why most of them are necessary.
For example, it is a specific federal crime to use the symbol of 4-H Clubs with the intent to defraud. And don’t even think about using the Swiss Confederation’s coat of arms for commercial purposes. That’s a federal offense, too.
Groups as diverse as the American Bar Association and the Heritage Foundation have reported that there are more than three thousand, five hundred distinct federal crimes and more than 10,000 administrative regulations scattered over 50 section of the U.S. code that runs at more than 27,000 pages. More than 40 percent of these regulatory criminal laws have been enacted since 1973.
I held hearings on the over-federalization of criminal law when I was in the Senate. You hear that the states are not doing a good job at prosecuting certain crimes, that their sentencing laws are not tough enough, that it’s too easy to make bail in state court. If these are true, why allow those responsible in the states to shirk that responsibility by having the federal government make up for the shortcomings in state law? Accountability gets displaced.
Now, there are plenty of areas in criminal law where a federal role is appropriate. More and more crime occurs across state and national boundaries; the Internet is increasingly a haven for illegal activity. A federal role is appropriate in these and other instances. But today the Federal Bureau of Prisons has quadrupled in size in little more than 20 years.
Perhaps the clearest example of federal over-involvement in state and local responsibilities is public education. It’s the classic case of how the federal government buys authority over state and local matters with tax-payer money and ends up squandering both the authority and the money while imposing additional burdens on states.
Between 1970 and 2005, federal spending on education increased nearly 150 percent without results to match. The No Child Left Behind law itself increased federal funding by some 26 percent, while creating 50 new educational programs nationally, imposing almost 7 million hours and more than 140 million dollars in compliance time and costs. The classrooms of America, where the learning actually takes place, receive but 61 cents out of every tax-payer dollar appropriated.
A little more federalist confidence in the wisdom of state and local governments might go a long way toward improving America’s public schools. The most encouraging reforms in education are occurring at the local level, with options like charter schools. And often the best thing Washington can do is let the states, school districts, teachers and parents set their own policies and run their own schools.
It is appropriate for the federal government to provide funding and set goals for the state to meet in exchange for that funding. However, it is not a good idea for the federal government to specifically set forth the means to be used in order to reach those goals. Adherence to this principle would make for fewer bureaucracies, fewer regulations, and less expense, while promoting educational achievement. There are bills pending in Congress that would move us in this direction, and I hope Congress gives them the attention they deserve.
Beyond specific policies, what’s needed are some basic rules to restrain the federal rule-makers.
A good first step would be to codify the Executive Order on Federalism first signed by President Ronald Reagan. That Executive Order, first revoked by President Clinton, then modified to the point of uselessness, required agencies to respect the principle of the Tenth Amendment when formulating policies and implementing the laws passed by Congress. It preserved the division of responsibilities between the states and the federal government envisioned by the Framers of the Constitution. It was a fine idea that should never have been revoked. The next president should put it right back in effect, and see to it that the rightful authority of state and local governments is respected.
It is not enough to say that we are “for” federalism, because in today’s world it is not always clear what that means. What we are “for” is liberty for our citizens. Federalism divides power between the states and government in Washington. It is a tool to promote freedom. How we draw the line between federal and state roles in this century, and how we stay true to the principles of federalism for the purpose of protecting economic and individual freedom are questions we must answer. Our challenge – meaning the federal government, the states, our communities and constituents – is to answer these questions together.
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