State authority: a rising or setting sun?

• Author: Waren, William T.
• Position: Includes related article on the National Conference of State Legislatures' fight for federalism

Federalism issues are front and center in our nation's capital. Here are some tests of progress from the states' point of view.

Old Ben Franklin wept as he signed the proposed new Constitution on Sept. 17, 1787. The long summer's work of the Philadelphia convention was concluded successfully. And not a moment too soon in the eyes of men of property like Franklin, Madison, Hamilton and Washington.

Earlier that year in western Massachusetts, Daniel Shays led more than 1,000 armed men who closed the courts in order to prevent the collection of debts against hard-pressed farmers. In many other states, legislatures acted to suspend or even cancel debts. Some legislatures refused to raise taxes to repay state debt or compensate loyalists for confiscated property. States printed such volumes of paper money that the value of currency depreciated. States engaged in economic warfare among themselves, erecting barriers to interstate commerce.

It was in this atmosphere of crisis and fear of national disintegration that the Philadelphia convention met and drafted the Constitution of 1787. For the framers "no problem was more difficult... than the conflict between unity and diversity," explained Archibald Cox in his book, The Court and the Constitution. "Miraculously, the framers solved the problem by inventing a unique form of federalism that met the needs of 1787 yet could be gradually transformed by interpretation under the pressure of events to meet the very different needs we know today."

The successful conclusion of the constitutional convention, the Miracle in Philadelphia, was in large measure the result of crafting a totally original system of federalism. The Constitution delegated to the national government certain specific and enumerated powers over interstate commerce, foreign policy, war and so forth. All other powers were retained by the states and the people.

Federalism issues have been central at most of the major turning points in American history, and the Constitution has been "transformed under the pressure of events" not only by Supreme Court interpretation but also by amendment. Moreover, the federal system has been transformed by the assertion of state or federal power by elected officials at various points in our nation's history. National power rose under the Federalists and ebbed under the Jeffersonians, rose again with the Civil War and ebbed in the late 19th century reaction to Reconstruction. The Progressive Era saw the rise of activist state and local governments. Later with the New Deal, the federal government asserted its powers. Under the pressure of the Great Depression, two world wars and the civil rights revolution, the power of the national government increased markedly and seemed unchallengeable. "States' rights" became a code word for racism, reaction and special interest influence.

But more recently, the national government has seemed to lose touch with the American people. Today Washington, D.C., is a bureaucratic nightmare, beset by bitter partisan bickering and gridlock. The feds have run up massive deficits, and conspicuously failed to address pressing national problems such as the slow growth of the American economy since 1973. At the same time, American states arguably have demonstrated a growing maturity, finding bipartisan solutions to practical problems and serving, as Justice Brandeis suggested, as "laboratories of democracy."

In 1996, issues of federalism again are very much in the forefront in our nation's state capitals and in Washington, D.C. The American people have grown disenchanted with the federal government and are willing to give the states another chance.

The nation has heard much rhetoric from political leaders over the past 18 months about the importance of federalism and about the importance of moving real authority to the states. The question is whether the rhetoric is being matched by action in Washington on such issues as: (1) limiting unfunded mandates, (2) limiting federal preemption of state law, (3) protecting state tax sovereignty, (4) providing flexibility for states in administering federal grant programs, (5) curtailing inappropriate federal grant conditions and (6) restoring balance in the constitutional doctrine of federalism.

TESTS OF...