What Happened to States’ Rights?

The power of the Federal Government has been growing. ObamaCare, IRS scandals, and the militarization & federalizing of local police make me wonder, “What is the government doing?” A look back may provide some insight.

The Thirteen Colonies originally organized under the Articles of Confederation. The Articles proved unworkable and a convention was called to amend the Articles. Instead of amending, the convention wrote a new Constitution. Debate raged over ratification, with the Anti-Federalists claiming it gave too much power to the Federal Government. At the time of this debate, people considered themselves citizens of their respective States and not citizens of what has become our Nation. States considered themselves sovereign entities and were leery of delegating more power to a Federal government.

The preamble to the Constitution uses the flowery words “We the people,” but the “people” did not create the Constitution. The people had delegated certain powers to their State governments and the States in turn delegated certain powers to the Federal government. That is why the Constitution severely limits the Federal government’s powers. Article One Section Eight defines the powers of the Federal government and the 10th amendment reserves all other powers for the States and the people. The States, rather than the “people,” ratified the Constitution and the power to amend it (Article 5) is given to the States and not the “people.”

Our Founding Fathers studied human nature and set up a system that allowed government to work, but at the same time provide a check on man’s natural tendency to garner more power. In school, we learned about the separation of powers, Legislative, Judicial, and Executive branches of government that the Constitution established to control these tendencies.

There are two other aspects of separation of powers that I was not taught.

First, when the Constitution was ratified, State legislatures chose Senators (Article One Section 3). This means the two legislative chambers (House and Senate) had different constituencies. The House represented the people and the Senate represented the States. Congress was set up such that a law would pass only if a majority of the people (Representatives) and a majority of the States (Senators) agreed on the legislation. Thus, a law had to meet two levels of approval in the legislature.

Second, think of the above three branches as horizontal separation of powers. The founders also wanted vertical separation of powers; that is multiple levels of government. They knew that government, if needed at all, was best when closest to the individual. For example, stop signs are handled at a very local level rather than in Washington. The Founders did not want a national government (that is, one government that sets all the laws for everybody), but rather a number of governments where power was at the lowest level possible.

In 1913, the 17th Amendment passed, eliminating the States’ voices in Washington. The 17th Amendment changed the selection of Senators from a decision by State legislature to a decision by popular vote. After adoption, Representatives and Senators had the same constituents – the citizens of their state or district. No longer did States have a say in how the Federal government worked.

With direct election of Senators, Congress has passed legislation that negatively impacts the states in two ways. First, legislation forcing States to provide a service without associated funding (unfunded mandates). Second, legislation that deals with issues that should be the responsibilities of the States. A politician’s primary job is to get re-elected. Without State selection of Senators, a Senator may vote in favor of legislation that should be handled at a state or local level or that benefits his constituents even though it hurts his State.

The result has been an enormous expansion of Federal power. The Federal government has more than quadrupled in size, growing from less than 5% to over 20% of GDP, since the early 20th Century, and has taken on all types of activities never envisioned by the Founders. Nowhere does the Constitution mention education, but we now have a Cabinet level Education Department, No Child Left Behind, Common Core, and a host of other education related legislation.

Getting power out of Washington and into the hands of the people and local governments will move us toward re-establishing what the Framers of the Constitution sought to create: a nation of liberty. Repealing the 17th Amendment is a step in that direction.

“The way to have good and safe government, is not to trust it all to one, but to divide it among the many, distributing to every one exactly the function he is competent to. Let the National Government be entrusted with the defense of the nation and its foreign and federal relations; the State governments with the civil rights, laws, police, and administration of what concerns the State generally; the counties with the local concerns of the counties, and each ward direct the interests within itself.” –Thomas Jefferson to J. Cabell, 1816.
By Thomas Nichta
The author lives in San Antonio and is a Mises Institute Ambassador.
The opinions expressed are those of the author and not necessarily the views of the Mises Institute.

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