Federalism Isn’t Dead
And Ironically, it’s Progressives Who Are Defending it
By Ed Willing
Constitutionalists were far from confident that either result of the recent Presidential election would help restore the Founders’ intentions, but many were hoping that an Obama loss would at least slow the extinction. Especially in regard to Obamacare, Conservatives have put a lot of weight on winning federal elections to save what is left of our waning Republic. After a frustrating, suspect and humiliating loss, few noticed the victories for Federalism made across the country – by Progressives.
While Obamacare looks to be intact, and in light of the Supreme Court ruling in June, the battles of Tuesday seemed to be the primary battlefield for Conservative reform. But consider something else, for a moment. The states of Colorado and Washington each approved the recreational use of marijuana, as a product to be regulated and taxed. This is in direct opposition to Federal statute (the Controlled Substances Act) – and a 2005 Supreme Court decision – stating that marijuana has a high potential for abuse, no currently accepted medical use in treatment in the U.S., and lacks accepted safety for use under medical supervision. But, many states have said otherwise. And this is the balance the Founders presumed the Constitution would protect. But under countless laws, conservatives and progressives alike have mistakenly sought the Federal government to solve local concerns, even if they are unconstitutional actions. And, the Supreme Court has repeatedly supported this presumption, as recently as the Raich decision in 2005, under the bastardization of the Commerce Clause. Coincidentally, this ruling was in regard to marijuana regulation by the Federal government. Nonetheless, today, nine states have approved either conditional or recreational use of marijuana, with many others considering it. All but one are traditionally “blue states.” Whether you approve of the legalization or not, it is an interesting observation in contradiction.
Constitutional conservatives have long held themselves in high regard for defending our founding principles, but have likely overlooked the opportunity gay marriage and marijuana advocates have provided them. The very core of the Constitution and the principles behind it is Natural Law – the protection and propagation of life, liberty and property. It is not an accident that we call it “natural,” because it is common sense, written into our very human nature. The system of government they created was one of dual-federalism, entirely to preserve Natural Law from being violated at any level.
While Conservatives have long found it difficult to stomach the liberal agenda in their own backyard (and in the opinion of this author, they are also offensive and unacceptable), Progressives too find the presumptions of local determination convenient when it achieves their ends. This is how Federalism is intended to work. When a consistent majority of a local district’s citizens decide for themselves a code of conduct and civil affairs that suits their distinctions, the Constitution protects their power to do so. Beginning in Article one, section eight of the Constitution, there are 18 primary enumerated powers the Federal government was granted by the states which formed it. The rest were retained by the states and the people individually. Fearing a dilution, or legal usurpation by the central government, the states insisted upon the ninth and tenth Amendments to further codify this clear wall of separation:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the People.
The Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People.”
Even the French Republic is founded upon this premise, that despite the “supremacy” of the national Government, the various régions, départements and communes are independent and not to be interfered with in their respective and defined jurisdictions. The Founders went even further to not consider ourselves having a “national government” but rather a “federated one,” and secondly, not placing any limits at all upon the states or the people, other than the protections of liberty assured under the Bill of Rights. Every word in the Constitution was carefully determined and not intended to contradict one another. So any rationalization by the Left to centralize their own agenda is a clear contradiction when they oppose laws by the Right, protecting marriage or outlawing recreational marijuana. The Left’s premise in this case is individual liberty, so is that of the Constitution, in every case.
Between a watering down of the term “General Welfare” or abuse of the Necessary and Proper or Commerce Clauses, Progressives have done all they can to change the bedrock of American Government. Constitutionalists understand the Constitution was intended to institute good government, with a distinction between government and actual law. Laws should be enacted as locally as possible, and good government insists that be the case, providing only the framework and implementation for law, not the substance of it. In desperation, Progressives have long used the Equal Protection measures of the 14th, and the presumption of courts to apply their agenda to other states. Nonetheless, any “presumption” carries little weight unless it is submitted to. When it comes to universal marriage or the legalization of marijuana, the proclivities of Natural Law kicks in, despite the substance of the Progressive mindset. Their methods are self-defeating, and Constitutionalists can seize this opportunity to put a stake through the heart of measures like Obamacare, the Patriot Act, potential abuses of NDAA provisions, Education edicts, gun control, media regulation and countless others. If the French can insist on keeping their President out of certain things, we certainly can.
Never before has there been a greater danger to the liberties defended by conservatives and taken for granted by Progressives. Both have created a New Sectionalism in America without realizing they’re closer together than they’d admit. The essence of Collectivism/Socialism/Marxism is centralized control; of Federalism, it is “federated” or dispersed power and control. The latter best protects both the interests of the more liberal
communities, as well as the more conservative ones. It best assures that a majority cannot discriminate against the minority, and likewise the minority cannot hold the majority hostage. The Founders brilliantly foresaw a changing culture and created a document that need not change to preserve a perfecting Union. The perfection comes as it’s people grow within the boundaries of mutual respect for Life, Liberty and Property. Beyond that, each man, or family to himself. And ultimately, Conservatives and Progressives agree on this.
Constitutional defenders staked a lot on this past Presidential election, but in doing so they forsook the Tenth Amendment movement for most of the months leading up to it. Thankfully, many of us never relented, and were prepared for the rest of America to return to the real battle, and they have: preserving Federalism – with Progressives in tow.
As the French would say, “touché.”