New Federalism, Old Illusions

Lawrence A. Hunter, Ph.D.
June 26, 2009

An editorial in the Washington Examiner Friday ran under the headline “Conservatives must rediscover federalism.”  When I read it, I had a feeling of déjà vu harkening back to the Reagan days of “New Federalism” when I was research director of the Advisory Commission on Intergovernmental Relations (ACIR).

I had come to ACIR from the Senate Intergovernmental Relations Subcommittee on Capitol Hill at the behest of the Commission’s chairman Bob Hawkins.  Hawkins at that time also was chairman of the Institute for Contemporary Studies, an early think tank founded in 1974 by Ed Meese and other Reagan associates intent on building an intellectual foundation beneath what later was characterized as “The Reagan Revolution.”  

“New Federalism,” a cornerstone of Reaganism, was all the buzz in the mid-1980s.  Revitalizing federalism was to be the overarching strategy by which the size and scope of the national government was going to be reduced.  It was the way we conservatives were going to return power to the people—by devolving power and responsibility back to the state and local level.  Those were heady days for those of us still suffering under the delusion that the process of government expansion and the centralization of power could be reversed as if by some Maxwell's Demon “sorting out” the functions of government and “turning back” power and responsibility to state and local officials and to the people themselves.  

It was interesting to read the Examiner mention Indiana Governor Mitch Daniels in reminding its readers that “one of the enduring strengths of the American political system is its federalism – keeping accountability and power as close to the people as possible whenever possible.”  While I was ACIR’s research director, I got to know Daniels in his capacity as Assistant to the President for Intergovernmental Affairs.  A small cadre of Reaganites viewed ACIR and the White House Intergovernmental Affairs operation run by Daniels as potential breeding grounds for new ideas about how to revive federalism and stem the steady expansion of the federal government, which had not ceased since the beginning of the Civil War.

It was my job to bring some measure of intellectual revitalization to ACIR and help provide a new-federalism alternative to the stale, technocratic intergovernmentalism—an unlovely word for the unlovely transformation of the sovereign states into bureaucratic extensions of the central government—that had held reign in Washington since the Great Depression.  Watching Governor Daniels today continue his valiant struggle against the overbearing and ever-expanding federal government reminds me how persistent he is but it also saddens me to observe his futile efforts to play the game within the confines established by the states’ federal masters in Washington.  For Reagan’s failure to inaugurate an era of new federalism convinced me that only drastic actions taken by governors and people themselves could ever hope to break the back of the federal Leviathan.

To read the Examiner wax quaintly about “laboratories of democracy” reminded me of my own disillusion and ultimate resignation about the fate of federalism.  Federalism cannot be revived; it is stone cold dead.  What took me a while to accept, and what stalwart old troopers like Governor Daniels have yet to accept as they soldier on in pursuit of a “new federalism,” is that federalism’s death resulted not from external forces which they can overcome but from internal contradictions within our democracy, within the four corners of our cherished Constitution itself.  As I wrote in 1986:

“In National League of Cities v. Usery (1976), the U.S. Supreme Court found that the Tenth Amendment requires the existence of a set of essential state powers that remains beyond the reach of congressional regulation or preemption. The Court reversed itself in Garcia v. San Antonio Metropolitan Transit Authority (1985), holding that the Tenth Amendment provides the Court no basis on which to limit the Congress in the exercise of its commerce powers. We argue that, although contradictory, both holdings can be inferred validly from the U.S. Constitution. This absurd result reveals profound inconsistencies in the constitutional design of federalism, requiring a constitutional solution. The article concludes with a discussion of a variety of constitutional remedies, including constitutional amendments.”

I knew from the day I wrote those words that “new federalism” was doomed to failure and my days at ACIR were numbered.  But they were true nonetheless, and they remain true to this day.

So, as much as I would like to concur with the Examiner’s assertion that a revival of federalism is the solution to the problem that afflicts our republic today, I cannot.  The fact is the demise of federalism is simply the outward manifestation of profound contradictions sown into the very fabric of our Constitution playing themselves out in the political arena and the economy. 

When asked by a woman after emerging from the Constitutional Convention what form of government the Founding Fathers had given their fellow citizens, Benjamin Franklin quipped, “A Republic, Madam, if you can keep it.”  Most of the Founding Fathers did not believe the republic they gave us would keep.  They were correct.  It has wound down through the inertia created by the grinding of its contradictory internal workings. 

What James Madison called our republican form of government no longer works; it has morphed into what Alexis de Tocqueville called a “velvet tyranny.”  The question before us is are there governors and state legislators today who have the courage and perspicacity to join with their citizens against an overbearing central government that has usurped their authority and stolen their liberty the way the Founding Fathers and Committees of Correspondence united against the English Parliament and wove a new fabric of democracy and a movement for liberty to replace what had become an oppressive British occupation?  

In today’s parlance, will state and local officials join with their citizens to “just say no” to Washington and opt out of tyranny by refusing to sanction and finance the Leviathan that oppresses them?  Is there one bold state that will go its own way and challenge the national Leviathan in Washington to stop it?  Are the people themselves bold enough to do something so simple and symbolic as demand, for example, the right to opt out of President Obama's crazy attempt to nationalize the entire healthcare system?

Restoring Federalism, if it is to happen, will mean restoring the attitudes and values and the stubborn fortitude against government exhibited by the Revolutionary Generation—the truly Greatest Generation.  It will mean new constitutions and new ways of doing things that Washington politicians cannot even conceive.  Restoring true Federalism and liberty will require setting in motion a New American Revolution, this time not a rebellion against a foreign tyrant sitting on a throne in some distant land but an uprising against a domestic tyranny by committee implemented by bureaucrats in the name of compassion and the “greater good.”  

In the verse of poet William Butler Yeats’s The Second Coming, “Things fall apart; the centre cannot hold; Mere anarchy is loosed upon the world; The blood-dimmed tide is loosed.”  But if the Washington Leviathan falls apart it will be because the periphery does not hold; nor need one state and region after another “loose a blood-dimmed tide of anarchy” but simply go their own way, peacefully if allowed to, defiantly if forced to. 

If there is to be a second coming of liberty in America, I suspect the hollow shell of Washington like Moscow before it, will simply stop functioning, not explode in revolution.  It’s now clear that it won’t be Arnold who leads the periphery out of Leviathan’s grip; but perhaps one hearty governor in the hinterlands of America sometime soon will simply lead his state to walk away from its overbearing master in Washington with a hearty AMF over their shoulder as they go. 

Commenting in a May 15 Wall Street Journal op-ed on what the coming Cap-and-Trade legislation (eventually passing the U.S. House of Representatives June 26, 2009) looked like from Indiana, Governor Daniels reported to the nation that:

“. . .how all this looks from the receiving end of the taxes, restrictions and mandates Congress is now proposing. . .Quite simply, it looks like imperialism. This bill would impose enormous taxes and restrictions on free commerce by wealthy but faltering powers -- California, Massachusetts and New York -- seeking to exploit politically weaker colonies in order to prop up their own decaying economies.”

Referring to President Obama’s “imperial climate-change policy,” Daniels said, “[it] is government that cannot work, and we humble colonials out here in the provinces have no choice but to petition for relief from the Crown's impositions."  Surely, the Governor of Indiana does not use such language lightly, laying as it does the predicate in the same fashion of the long-suffering colonists for the eventual break with the center when it finally came in the formal Declaration of Independence:

“In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.”

I don’t know if Mitch has it in him to be the one who leads the first group of disillusioned and disenfranchised Americans out the door, but in his heart, as his words reveal, he knows that’s what it will take.






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