PUBLIUS Why is federalism still important? What does it look like today? We’re talking with Professor Michael McConnell about how and why federalism was written into the Constitution. How did the Founders envision federalism? What role did Constitutional Amendments play in the increase of national power? MICHAEL MCCONNELL So at the time that the Constitution was written, most of the governing authority was in the 13 states and the states came together in convention to form the national government and the system of federalism that they adopted was giving the national a list of certain enumerated, limited, but important powers and then leaving all the rest to the states. So when we talk of federalism, it's in contradistinction to a single national unitary state, like Great Britain or France. It's more like the European Union, in which you have a national or supranational government and then individual states that have differences and can govern themselves differently. And this allows for a greater choice, it also allows for greater freedom because people can move from one place to another. The people of, say, California are not the same as, say, the people of Indiana. They have different economies, they have different interests and needs and most importantly, they have different beliefs about things and when we allow states to govern major areas of life, especially those having cultural significance, it means that you can have difference and that difference and that choice enhances freedom. PUBLIUS: If policy diversity is so important at the state level, why have we had so many Constitutional Amendments that have weakened federalism? MICHAEL MCCONNELL: Of course, the Amendment process itself is neutral with respect to federalism. It could, in theory, go either way, but as it happens, many of the Amendments have strengthened the national government and weakened the position of the states. The 13th Amendment eliminated slavery, which in effect eliminated one of the powers of the southern states. The 14th Amendment gave the national government control over basic civil liberties. A series of Amendments have given the national government authority over various types of limitations on voting Then, during the progressive era, there were three Amendments: the 16th, 17th, and 18th, none of which was expressly about federalism, but all of which had a very important effect of strengthening the national government vis a vis the states. The 16th Amendment created the national income tax and that's why the federal government has such a large command over our economy and is able to tax the income of the United States and use it for national purposes. The 17th Amendment eliminated the state legislature's power to choose who the senators would be, so a major structural protection for state rights was eliminated. And then the 18th Amendment, prohibition, which most people don't think about as a federalism matter at all, actually led to the creation of the first national police power force in America. It was the first time that there was a law that was directed at virtually everyone in the country and that required national enforcement. So sociologists tell us that one of the key elements of a nation state is a national police force and it was only with prohibition that we got one. So I think it's hard to deny that the national government has taken a much larger role in our national governance than the Constitution originally envisioned. When you look at federal systems around the world, countries like, say, Germany or Canada or Australia, that also have federal structures, they have much more explicit protections for their states or provinces than we do. Our federalism is actually rather weak as a Constitutional matter. And so essentially, rather than the states being the primary players, with the national government only involved in matters of the national economy or foreign affairs, which is the original vision, our national government is now, in many ways, the primary government and with the states playing a largely secondary role. PUBLIUS: Why did the Founders decide on a federalist system? What does it protect? MICHAEL MCCONNELL: Well there are different ways to think about how to divide sovereignty, so sovereignty means the ultimate political power over an issue and one way to do it is to divide subject matters up so that one level of government is sovereign over certain issues and other levels of government are sovereign over others. I think that was primarily the original plan, but another way for it to be divided is for both levels of government to be involved particular topics, but in different ways, so that the national government might, for example, set basic policy and then the state governments fill in the details or have their own variants. That, I think, much more describes our current situation than the idea of dividing powers in the way I think most of the framers probably thought about it. I think, in the end, the American people got the kind of government that they want. Now, I believe that, in many ways, political decisions are made on a shortsighted basis. That is, people may really think that they want a particular outcome without considering what the long term effects of that are going to be. If we feel passionately about a particular issue, very frequently we will want that issue to be resolved at a national level without thinking about the fact that there are many issues out there and it might be better for all of us to be able to live with a system in which we don't seek national solutions for absolutely everything, that we're actually freer people if different states can take different approaches and experiment and be different and allow people to move and to try things out. A single national system is often rigid, much more difficult to change, so I personally do believe that we all should have a certain greater amount of self-restraint in not necessarily wanting to impose our views on everything on the entire nation, when it isn't necessary to do that. When the Constitution was framed, most people were relatively comfortable with their own state governments and the state of civil liberties in their own states and that they feared this new, somewhat unaccountable, distant federal government. And that's why the Bill of Rights, as it was originally passed, only limited the national government because that's where people thought that the danger was going to come. Experience shows that that was not exactly right, that especially because of all of the civil liberties issues connected with slavery; slavery itself, but also freedom of speech and of press and of religion and movement connected opposition to slavery, showed that the state governments were more dangerous, really, than the national government. And when you think about it, this is also the theory that James Madison put forward in Federalist 10, in particular, in which he argued that the extended union would be safer for individual liberty than individual states. The reason for that being that states are more likely to be homogenous with respect to particular religions or interests or ideologies. The national government would be more diverse and therefore less likely to align itself with any particular oppressive ideology. And the Constitutional solution to that, after the Civil War and made possible by the Civil War, was the adoption of Amendments like, most importantly, the 14th Amendment, which now make the national government the principal protector for civil liberties, rather than the states. Although maybe the more accurate way to think about it is that we have system in which both the national government and the state governments both have a role in protecting civil liberties and the fact that they sometimes are going to be in disagreement can serve to protect liberty because it may be that when all power is in one place is the time when we should be most concerned and the division of power, not only between the three branches of the federal government, but also between the national government and the 50 states, exerts a pull away from the potential for tyranny. PUBLIUS: You mentioned slavery, which was obviously an issue that had to be resolved at the national level. What about other state issues that the federal government has an interest in regulating? For instance, how much power does the Commerce Clause in the Constitution give to the national government? MICHAEL MCCONNELL: So the way the Constitution divides power between the national government and the states is it has a list in Article one, section eight of specific powers that pertain to the national government and everything else is left to the states. One of the powers on that list, and one of the most important, is the Commerce Clause, which gives the national government the power to regulate commerce with foreign countries, with the Indian tribes, and among the states, which is to say, "Interstate commerce." Now, at the time that the Constitution was adopted, we didn't have a real national economy with respect to very many items. We had more localized economies, but as transportation has changed and as the way in which national economic life is conducted has changed, many things that were localized at the time of the founding are now a national market. And the Supreme Court has been very accommodating to the national government's belief that most aspects of the economy, now, need to be governed at the national level. So today, although the Commerce Clause looks as though it only allows the national government to regulate commerce among, that is to say from one state to another, the states, I think a more accurate description of the current doctrine would be so say that the national government can regulate the economy, and there's a kind of presumption that the economy is now national or global in its character, and also is able to regulate things that move from one state to another, leaving, as a sort of Constitutionally protected core to the states, those things that are neither commerce, not commercial or economic in character, and also do not move from one state to another. It turns out, and I think rather happily so, that many of those issues have to do with matters of culture and family and that those are also issues that don't really need a national solution and about which people feel rather passionately and there are great differences from one part of the country to another about those issues. So I think that the way in which the Commerce Clause has developed has left to the states the very issues that are most important for the states to continue to have independent power. The Commerce Clause has been litigated in the Supreme Court probably more often than any other structural provision of the Constitution and the most important early case was called Gibbons against Ogden and it involved a state law that granted a monopoly to people operating a steamship across the Hudson River between New York and New Jersey. And the Supreme Court held that a federal law, which licensed a competitor, trumped the state law and thus the national government's ability to be able to promote commerce or protect commerce against local monopoly legislation was upheld. This can be seen as a very nationalistic decision in a sense, but I think it's, at least from my perspective, it is exactly what the Commerce Clause was intended for. It was giving the national government the ability to protect a national market against the sometimes parochial interests of the states and the neo-mercantilist policies of individual states. In the decades after Gibbons, the Supreme Court tended to distinguish between commerce, which it understood to be the transportation and sale of goods, versus the production of goods, so agriculture and manufacturing were not considered to be directly regulable by the national government, but trade was. And this began to break down because, as the national economy grew more integrated, the Congress began passing major economic legislation, like the anti-trust acts, which regulated not just commerce, but also manufacturing. And the original way in which this was justified was that congress would pass a law saying something along the following lines, "Unless manufacturing conformed to national standards, they would be forbidden to sell their products across state lines." So there was a kind of interstate commerce hook with which to regulate things that were happening in manufacturing itself. And in several cases around the time of the New Deal, the court stopped, sort of left out that intermediate step, and came to the conclusion that all economic activity, including manufacturing and agriculture, which was destined for a national market, was directly comprehended within the Commerce Clause and so you had cases like United States versus Darby, which held that there could be national labor regulation in manufacturing. The farthest and most extreme case of the period, Wickard versus Filburn, which regulated agriculture, but regulated agriculture all the way down to the production of wheat by a farmer for consumption by his family and by his own animals. So that was, for many years, the most extreme application of the Commerce Clause and that's where things rested for many decades after that and almost anything Congress did to regulate economic activity was going to be upheld. One of the most important examples of that were some cases involving the Civil Rights Act of 1964, which prohibited racial and other discrimination in a variety of settings, such as employment and public accommodations, meaning things like hotels and restaurants. The court upheld that legislation, not as civil rights legislation under the 14th Amendment, but rather as commercial legislation on the theory that it was a burden on interstate commerce for large numbers of Americans not to be able to travel and to be able to use the facilities for travel and to be discriminated against in employment, that this is not just a moral problem, but it's actually an economic problem that Congress was able to deal with. Then the Supreme Court finally began to recognize limits on Congress's power and much more recent times, there were two cases closely together, called Lopez and Morrison, and which the Supreme Court held that Congress does not have the power to regulate matters that are neither economic nor interstate in character. So Lopez had to do with the possession of a firearm within a certain number of feet of a school. Well, possession of a firearm is not an economic activity, it's not manufacturing, it's not agriculture, it's not trade. It's a non-economic thing and under the terms of the statute, it applied to activity completely within the boundaries of a state and the Supreme Court held that that exceeded the Commerce Clause. The other example, Morrison, had to do with gender-motivated violence of a non-economic sort. Of course, there's a great deal of violence which is of an economic sort, but domestic violence is not. And again, something that takes place entirely within the boundaries of a state. And then the final example of this, and probably the most controversial was the Supreme Court's consideration of the Affordable Care Act, or Obamacare, and its requirement that everyone purchase approved health insurance policies, that is health insurance policies that meet with the standards that Congress set in the act. And the Supreme Court, in a very contentious five to four majority, held that the Commerce Clause does not empower the government to do that, that when individuals choose not to purchase a product, that they are not engaged in commerce and since they're not engaged in commerce, they're not doing something Congress can regulate. In effect, what the court said is that Congress can regulate commerce that takes place, but it can't force people into commerce. Now, the second half of that decision, which was an entirely different five to four majority, was that the same provision could be justified under another one of Congress's powers, which is the power to tax because the court defined the penalty for not purchasing approved insurance policies as being a tax, rather than, in effect, a penalty. And so the court did, in fact, uphold the individual mandate under Obamacare, but not under the Commerce Clause. So the language of the Commerce Clause refers to Congress's authority to regulate commerce among the states and by "commerce", the original meaning was something like trade, that is the sale and transportation of goods and services across state borders. And that did not include manufacture and agriculture and other activities that were economic, but were not trade. The trade follows after manufacture, it doesn't include manufacture, but the court then over time, as the national economy grew more integrated and Congress began to regulate more actively in the economic sphere, the court began to reason that Congress could indirectly regulate manufacture and agriculture by saying, in effect, that, "Unless you comply with our rules, you can't sell across state lines." And this morphed into, over a period of decades, a general power of Congress to regulate economic activity and not just trade. PUBLIUS: You’ve described a considerable expansion of federal powers, as presumed under the Commerce Clause. Isn’t this particular expansion necessary for modern regulation? MICHAEL MCCONNELL: In more recent times, as Congress has passed laws regulating activities that aren't even economic in character, the court has begun to draw lines and actually strike down some acts of Congress on the ground that what was being regulated was neither economic, nor interstate. Well the way I look at it, the constitutional principles haven't changed, but the same principles applied to rather different technological and economic circumstances could lead to different answers. To some extent, I believe that the Supreme Court's evolving doctrine under the Commerce Clause reflected a changing view of the national-state balance, but to, I think, an even greater extent, it was a reaction to changes in technology and economics that led to a very different situation. At the time of the founding, the fastest way to travel by land from one place to another was on a fast horse. That also was the fastest way to travel in the times of ancient Rome or ancient Greece. Transportation had simply not changed for thousands of years. And it presents a very different situation than when people are now whizzing around in trucks and railroads and airplanes and other modes of transportation. The country has grown together as an integrated economy because of these changes in transportation and communications . . . So I don't think it's surprising that the representatives of the people in Congress perceived and then the Supreme court acknowledged and justified greater national regulation of what was increasingly a national economy.