Is Federalism a Dead Letter?

The broad public dissatisfaction with the new health-care law has already prompted many states' attorneys general to file suit against the federal government. Among their several objections, the particular feature of the law on which they have focused their attention is the measure mandating that all citizens purchase health insurance. In response to this objection, some of the law's defenders have quickly employed the language of "states' rights" and "nullification" to describe it, and thereby, they hope, to discredit it as well. Both terms are useful to that end as they raise the sad specter of our country's history associated with slavery and Jim Crow. The one thing you can always count on from a liberal is that if you disagree with him, sooner or later, he will call you a racist.

Nevertheless, the issue does serve to raise the important question, once again, of whether or not our federal republic remains in any meaningful sense, federal. James Madison argued in Federalist No. 51 that the proposed constitution afforded a "double security" to our liberty. The two securities to which the "double" referred were the separation of powers and federalism. The former measure, separation of powers, securing liberty by dividing power within government, remains undeniably viable. Witness only the recent drama in the Senate and House to pass President Obama's health-care initiative. But the vitality of the latter measure, federalism, securing liberty by dividing power between governments, is presently suspect, and has been so for at least since the Civil War.

In fact, the direction of pretty much all of our political history since the Civil War, through the Progressive Era, the Great Depression, World War II, the Cold War, the Civil Rights Movement, and all the Great Society initiatives can justly be described, at least in part, as one very long scene in our constitutional drama in which federalism is dying a very slow death.

To be sure, federalism is, and always has been a problematic constitutional measure. The theory that it is possible to divide sovereignty between the whole (the U.S.), and the parts that make up the whole (the states), in any sustainable way, runs smack into the very practical reality that the prerogatives of the whole and those of the parts often conflict. When they do, who wins? There is something necessary, it seems, to the whole predominating over the parts. Or, to switch analogies, the survival of the body is more important than that of its members.

But, as I say, the present case of the very controversial Obamacare law raises the question again over whether the several states that comprise the union remain semi-sovereign or have they in effect been reduced to little more than mere administrative districts? As to the letter of the law, over the years the courts have routinely ruled on the side of the national government, thereby increasingly circumscribing the latitude of the states. Whether they will rule similarly in this case is an open question. But what of the spirit of the law? The spirit, that is, of the original law, the Constitution?

It seems to me that the spirit of federalism, however dead the letter, has remained very much alive in America. And as federalism was in the first instance a measure to secure liberty, that is of crucial importance to the body politic. While I am a very big fan of written constitutions, inscribed bills of rights, and the like, I have no ultimate faith in their value as securers of liberty. Mere "parchment protections" Madison dismissively called them. But insofar as they reflect a livng spirit that gives the letter, however attenuated, a pulse, they are invaluable. And the pulse of federalism beats on.