Mr. Chairman, distinguished members of the subcommittee:
My name is Roger Pilon. I am a senior fellow at the CatoInstitute and the director of Cato’s Center for ConstitutionalStudies.
I want to thank Congressman Shays for inviting me to testify onthe subject of these hearings, “The Federalism Debate: Why Doesn’tWashington Trust the States?” I want also to commend thesubcommittee for holding these hearings, for the federalism debateis, without doubt, the most important political, legal, andconstitutional debate taking place in America today, going to ourvery roots as a nation.
At the same time, I would have thought, especially followinglast November’s elections, that the proper question was not “Whydoesn’t Washington trust the states?” but “Why don’t the people andthe states trust Washington?” For surely, it is distrust ofWashington that drives the debate today.
And the answer to that question, I submit, has rather less todo, in the final analysis, with the policy concerns that infuse thesubcommittee’s statements to date on the subject than with a muchmore basic concern about political and constitutional legitimacy.In a word, the people and the states no longer trust Washington notsimply because Washington has been doing a less than satisfactoryjob but, more deeply, because Washington has assumed a vast arrayof regulatory and redistributive powers that were never its toassume – not, that is, if we take the Constitution seriously.
Thus, the question the people and the states are increasinglyputting to Washington is simply this: By what authority do you ruleus as you do? That is a question that takes us to First Principlesof a kind the Supreme Court itself revisited less than three monthsago when it found, for the first time in nearly 60 years, that thepower of Congress to regulate interstate commerce is not the powerto regulate anything and everything.
The Court’s opinion in United States v. Lopez sent shock wavesthrough official Washington, not least because Washington hadsimply assumed, since the era of the New Deal, that its regulatorypowers were plenary. Indeed, with the statute in question, TheGun‐Free School Zones Act of 1990, Congress had not even botheredto cite the source of its authority under the Constitution. One canhardly fault the average American for finding in that a certainindifference, if not contempt, for constitutional limits.
Yet it is just such limits that federalism, in the end, is allabout. To appreciate the point, however, it is necessary to gobeyond the federal‐state and states’ rights debates that havedominated the federalism discussion. For the issues, at bottom, arenot so much jurisdictional as substantive. And nowhere is that moreclear than in the Tenth Amendment, properly understood.(1)
I. The Tenth Amendment and EnumeratedPowers
The Tenth Amendment states: “The powers not delegated to theUnited States by the Constitution, nor prohibited by it to theStates, are reserved to the States respectively, or to thepeople.”
By its terms the amendment tells us nothing about which powersare delegated to the federal government, which are prohibited tothe states, or which are reserved to the states or to the people.To determine that, we have to look to the centerpiece of theConstitution, the doctrine of enumerated powers.
That doctrine is discussed at length in the Federalist Papers.But it is explicit as well in the very first sentence of Article 1,section 1, of the Constitution (“All legislative Powers hereingranted …”) and in the Tenth Amendment’s reference to powers“not delegated,” “prohibited”, and “reserved.”
Plainly, power resides in the first instance in the people, whothen grant or delegate their power, reserve it, or prohibit itsexercise, not immediately through periodic elections but ratherinstitutionally – through the Constitution. The importance of thatstarting point cannot be overstated, for it is the foundation ofwhatever legitimacy our system of government can claim. What theTenth Amendment says, in a nutshell, is this: if a power has notbeen delegated to the federal government, that government simplydoes not have it. In that case it becomes a question of state lawwhether the power is held by a state or, failing that, by thepeople, having never been granted to either government.(2)
At bottom, then, the Tenth Amendment is not about federal vs.state, much less about federal‐state “partnerships,” block grants,“swapping,” “turnbacks,” or any of the other modern concepts ofintergovernmental governance. It is about legitimacy. As the finalmember of the Bill of Rights, and the culmination of the foundingperiod, the Tenth Amendment recapitulates the philosophy ofgovernment first set forth in the Declaration of Independence, thatgovernments are instituted to secure our rights, “deriving theirjust powers from the consent of the governed.”(3) Without thatconsent, as manifest in the Constitution, power is simply notthere.
It is the doctrine of enumerated powers, then, that givescontent to the Tenth Amendment, informs its theory of legitimacy,and limits the federal government. Power is granted or delegated bythe people, enumerated in the Constitution, and thus limited byvirtue of that delegation and enumeration. The Framers could hardlyhave enumerated all of our rights – a problem the Ninth Amendmentwas meant to address.(4) They could enumerate the federalgovernment’s powers, which they did to restrain that government.The doctrine of enumerated powers was meant to be the principalline of defense against overweening government. The Bill of Rights,added two years after the Constitution was ratified, was meant as asecondary defense.
Yet today the federal government exercises powers not remotelyfound in the Constitution, leading lawyers and laymen alike to say,increasingly, that those powers are illegitimate.(5) How then didwe get to this point, where the federalism debate is increasingly adebate about the very foundations of our system of government? Ihave discussed that question at length elsewhere.(6) Let me simplysummarize the answer here, then turn to an issue that seems toconcern the subcommittee, and not without reason – the connection,historically and prospectively, between federalism and “states’rights.”
II. The Demise of the Doctrine of EnumeratedPowers
Our modern regulatory and redistributive state – the state theFramers sought explicitly to prohibit – has arisen largely since1937, and primarily through just two clauses in the Constitution,the Commerce Clause and the General Welfare Clause respectively. Itis striking that this is so, for if the Framers had meantforCongress to be able to do virtually anything it wanted throughthose two simple clauses, why would they have bothered to enumerateCongress’ other powers, much less defend the doctrine of enumeratedpowers throughout the Federalist Papers? That is the question thatcries out for explanation.
The explanation, of course, is that the Framers intended no suchthing. The modern state arose through judicial legerdemain,following Franklin Roosevelt’s notorious 1937 Court‐packingscheme.
In a nutshell, the Commerce Clause, which gives Congress thepower to regulate commerce among the states, arose out of concernthat the free flow of commerce among the states might break down ifstates, as under the Articles of Confederation, had the power toerect protectionist measures on behalf of indigenous enterprises.Thus, its principal aim was to ensure the free flow of commerce bygiving Congress the power to regulate, or make regular, suchinterstate commerce. Not remotely did the Framers intend that theclause would be converted from a shield against state abuse – itsuse in the first great Commerce Clause case, Gibbons v. Ogden(7) – into a sword, enabling Congress, through regulation, to try tobring about all manner of social and economic ends. Yet today,following the Supreme Court’s reversal in 1937,(8) that is justwhat has happened as Congress claims power to regulate anythingthat even “affects” interstate commerce, which in principle iseverything.
The General Welfare Clause of Article 1, section 8, was alsointended as a shield, to ensure that Congress, in the exercise ofany of its enumerated powers, would act for the general rather thanfor any particular welfare. Here, however, Hamilton stood oppositeMadison, Jefferson, and others in thinking that the clause amountedto an independent, enumerated power – albeit limited to serving thegeneral welfare. But as Congressman William Drayton noted in 1828,if Hamilton were right, then whatever Congress is barred from doingbecause there is no power with which to do it, it could accomplishby simply appropriating the money with which to do it.(9) That, ofcourse, is precisely what happened, which the Court sanctioned whenit came down on Hamilton’s side in 1936,(10) then a year later wentHamilton one better by saying that although the distinction betweengeneral and particular welfare must be maintained, the Court wouldnot itself police that distinction.(11) Congress, the very branchthat was redistributing with ever‐greater particularity, would beleft to police itself.
With the Court’s evisceration of the doctrine of enumeratedpowers, the modern regulatory and redistributive state pouredthrough the opening. One result of the subsequent explosion offederal power, of course, was the contraction of state power wherethe two conflicted – and the attendant federalism dilemmas. At thesame time, individual liberty contracted as well – the preservationof which was supposed to be the very purpose of government. Andfinally, questions about constitutional legitimacy never did goaway. As government grew, the idea that a Constitution designed forlimited government had authorized that growth of power becameincreasingly difficult to sustain.
III. Federalism and “States’ Rights”
But what about the sorry history of “states’ rights” as adoctrine that southern states invoked by way of defending slaveryand then, after the Civil War, the reign of Jim Crow? Does this notgive weight to the question, “Why doesn’t Washington trust thestates?” Indeed it does, but here too there has been substantialmisunderstanding over the years, with a seminal Supreme Court caseat its core.
The tragic compromise that led the Framers to accept slavery intheir midst is well known. It took a civil war to abolish thatinstitution, and the Civil War Amendments to secure the legalrights of the freed slaves. Unfortunately, no sooner had thoseamendments been ratified than the principal vehicle for insuringsubstantive rights against state action, the Privileges andImmunities Clause of the Fourteenth Amendment, was eviscerated by adeeply divided Court in the Slaughter‐House cases.(12) The clausehas never been successfully revived.
On Blackstone’s view, the clause referred to our “naturalliberties.” The Civil Rights Act of 1866, which Congress reenactedin 1870, just after the Fourteenth Amendment was ratified, made itclear that the clause was meant to protect the very rights Jim Crowwent on to deny.
The demise, then, of the Privileges and Immunities Clause hadnothing to do really with the Tenth Amendment or the doctrine ofenumerated powers. It was a blatant case of judicial abdicationthat eviscerated the clause, thereby leaving the freed slaves inthe South to the mercies of state legislatures.
Nor is there anything in current efforts to revive the TenthAmendment and the doctrine of enumerated powers that should givepause – provided only that we are clear, and the judiciary is clear,that the Fourteenth Amendment gives the courts, through section 1,and the Congress, through section 5, the power to negate stateactions that deny their citizens the privileges and immunities ofcitizens of the United States. Were the Congress to move to dothat, the promise of the Civil War Amendments would at last berealized, not in opposition to federalism, but in harmony with itas perfected through those amendments.
- I have discussed the issues that follow more fully in “AGovernment of Limited Powers,” The Cato Handbook for Congress, ch.3 (Washington, D.C.: Cato Institute, 1995); “On the Folly andIllegitimacy of Industrial Policy,” 5 Stanford Law & PolicyReview 103 (1993); and “Freedom, Responsibility, and theConstitution: On Recovering Our Founding Principles,” 68 Notre DameLaw Review 507 (1993). For my brief thoughts on the Lopez decision,see “It’s Not About Guns,” Washington Post, May 21, 1995. atC5.
- This is a point that Justice Thomas got exactly right in histrenchant dissent in U.S. Term Limits v. Thornton, 63 U.S.L.W.4432, 4433 (U.S. May 22, 1995).
- Declaration of Independence, para. 2 (emphasis added).
- “The enumeration in the Constitution of certain rights shallnot be construed to deny or disparage others retained by thepeople.”
- See, e.g., Gary Lawson, “The Rise and Rise of theAdministrative State,” 107 Harvard Law Review, 1231, 1231 (1994):“The post‐New Deal administrative state is unconstitutional, andits validation by the legal system amounts to nothing less than abloodless constitutional revolution”; Richard A. Epstein, “TheProper Scope of the Commerce Clause,” 73 Virginia Law Review 1387,1388 (1987): “I think that the expansive construction of the[commerce] clause accepted by the New Deal Supreme Court is wrong,and clearly so .…”
- See note 1, supra.
- 22 U.S. (9 Wheat.) 1, 187 (1824).
- NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1(1937).
- 4 Congressional Debates 1632 – 34 (1828).
- United States v. Butler, 297 U.S. 1, 65 – 66 (1936).
- Helvering v. Davis, 301 U.S. 619, 640 (1937).
- 83 U.S. (16 Wall.) 36 (1872).