January 19, 2010 06:45 AM

Webber: State Sovereignty and the F-word

Federalism. We all know it is there but we don’t talk about it. When we do, it's usually only as a last resort in an argument in which we have exhausted other appeals. Federalism is complex and confusing (for a brief history, see http://www.thisnation.com/federalism.html), and becoming more so every year.

Federalism is heralded as both the blessing and the curse, the cause and the solution, the question and the answer to many of America’s governing challenges. Federalism underlies the education standards debate surrounding No Child Left Behind, the Hurricane Katrina aftermath, the Electoral College, the contested 2000 presidential election, parallel tax systems (without an Internet sales tax), the control of the National Guard, highway safety and the Civil War.

There are state-local intergovernmental issues such as state regulating CAFOs (Concentrated Animal Feeding Operations), local home rule, and state funding of local school districts, but usually the acrimonious debates involve the national government (the “Feds”).

Federalism will be at the heart of legislative debates once again this year due to states’, especially California’s, budget shortfall and the national health care debate. In 2009, at least ten state legislatures considered resolutions intended to protect their state sovereignty from a variety of national regulations and it is likely there will be even more in 2010.

At least 50 state legislators over the past 20 years have told me of being greeted by a neighbor on the town square with, "Why aren’t you in Washington, DC?" This is not the town drunk who greets them but, "the bank president, the minister, or a school teacher." Certainly all of these citizens have noticed two different flags in the school gym and heard about the "layer cake" and "marble cake" metaphor—but it is not second nature to them.

Federalism, an American invention, is a political system with several levels of sovereign government, i.e. governments that have their own legitimacy, independence, authority, and their own constitutions (see Missouri’s). While states sometimes serve as administrative regions of the national government for implementing federal programs, states have their own legitimacy, their own sovereignty.

US federalism evidently sprang from the realization by Roger Sherman of Connecticut during the Constitutional Convention era that citizens could have dual sovereignty, that we did not need to choose between 13 colonies or one union—but that we could have both.

President Ronald Reagan used to say that the "13 colonies created the federal government, not the other way around." Well, he is right—but the federal government created, or purchased, most of the other 37 states.

We hear alternately about "federal grants" and "unfunded mandates" but few citizens people seem to ask about the link between the two. Currently, almost one-third of state spending comes from the federal government. Some states are net importers of federal dollars; Missouri gets about $1.30 in federal spending for each dollar Missourians send to Washington. Ironically, so called Red States often do better on their return on federal taxes than do Blue States. (See National Tax Foundation.) Here at home, few Missouri citizens complain about federal funds for extending highways (Highway 63, for example), pedestrian bridges between parking lots and football stadiums (such as that at Mizzou over Providence Road), or federal disaster funds (due to drought, tornadoes, and winter storms).

A significant accomplishment of US federalism is that it has maintained sub-national fiscal discipline by not assuming state debts. (Yes, there is an irony here!) Compared to Germany and Brazil, for example, the US government does not bail out states. Despite this history, a temptation to do so will be California’s $20 billion budget shortfall. California is too big, politically and economically, to fail. (My hunch is that the federal government will not officially bail out California but it will increase federal grants similar to Nebraska’s sweetheart Medicaid deal.)

Federalism is shared powers and responsibility. After that statement, everything else is rather murky. The Founding Fathers had competing ideas about the role of the new government they were creating; the 10th Amendment is unclear and largely ignored until rediscovered in about 1995 by the Supreme Court under Chief Justice William Rehnquist (see more about that here).

The prevailing academic view is that we are in an era of "representational federalism" (rather than dual federalism or "cooperative federalism") where the balance between the national government and states is a matter for political debate and development rather than application of a clear legal principle. In that light, state legislative resolutions concerning health care, the federal deficit or gun control are all means for states protecting their interest.

President Woodrow Wilson wrote:

The question of the relation of the States to the Federal Government is the cardinal question of our constitutional system. At every turn of our national development, we have been brought face to face with it, and no definition either of statesmen or of judges has ever quieted or decided it.

We are better off as a nation with a perennial debate about the balance between states and the national government. There is not a secret legal formula that will be discovered by the Supreme Court but rather a dynamic adjustment of a changing society, a shifting global economy, increased communications and greater population mobility. Either by design or by compromise, the Founding Fathers built a lot of vagueness into the Constitution with which succeeding generations could struggle.

David Webber is Associate Professor of Political Science at the University of Missouri, Columbia specializing in American public policy, federalism and state legislatures. His column appears every Tuesday.