Chair Roegner, Vice Chair Lipps, Ranking Member Leland, thank you so much for inviting me to testify on the important issue of constitutional federalism—the genius of American government.  My name is Daniel J. Dew, and I am the Criminal Justice Fellow at The Buckeye Institute’s Legal Center, a free-market think tank here in Columbus.

Let me begin by noting that although I am a strong supporter of state sovereignty, I also recognize that the national government must be strong enough to protect citizens from both foreign and domestic threats, which includes threats from any state government that would violate our constitutional rights.  Having said that, I offer the following three points for your consideration: the importance of federalism; the erosion of federalism; and the future of federalism.

The Importance of Federalism

The undisputed brilliance of America’s founding and Constitution lies in the principle of federalism.  Justice Anthony Kennedy once wrote that “Federalism was our Nation’s own discovery.  The Framers split the atom of sovereignty.  It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other.”  Justice Kennedy reminds us that the greatest check on federal power under the Constitution was not the separation of power divided among three co-equal branches, but the division of power between the sovereign states and the sovereign United States.

To implement this balance of separated power, the Constitution established several structural safeguards to protect against political “incursions.” State sovereignty was protected first by the express, but limited delegation of specific powers that the Constitution granted to the national government. Many of the Framers considered these enumerated federal powers to be the extent of national authority, but others worried that without additional explicit protections, the national government would expand beyond its delegated sphere.

In opposing the need for a bill of rights, for example, Alexander Hamilton argued in Federalist 84:

I go further, and affirm that bills of rights . . . are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?

To sharpen his point, Hamilton went on to ask: “Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”

Notwithstanding Hamilton’s rhetorical question, the Bill of Rights was soon ratified, and with it a second constitutional safeguard for federalism and state sovereignty.  James Madison, the architect of the constitutional structure, initially resisted a bill of rights, believing like Hamilton that such express protections were unnecessary given the few and defined federal powers. But later, Madison authored the Constitution’s Tenth Amendment, which expressly reserves to the people and the several states any powers not delegated to the federal government.

One final structural safeguard for state authority was the Constitution’s initial requirement that U.S. Senators be elected by state legislatures.  This provision—later nullified in 1913 by the Seventeenth Amendment—gave states a more direct representation in the national Congress, essentially giving states a veto power over any legislation that infringed on state prerogatives or sovereignty. 

The animating principle behind each of these safeguards, of course, was the Framers’ understanding that local governments are best suited to govern local matters, and that you, as Ohio’s legislature, would know better than Congress or the President how to solve the problems and concerns of Ohio and your constituents. Federalist 17 went so far as to call any attempt by the national government to involve itself in local matters “troublesome.”

We see the wisdom of this concern manifest in our own political climate today. We see fundamental differences of opinion from state to state on the proper role, scope, and interests of government—whether state or federal. Californians, for example, do not want Oklahomans or Alabamans dictating policy for California—and the feeling is almost certainly mutual—just as we would never want that “state up north” dictating policy for the great state of Ohio.

Federalism is that unique system of sovereignty and power that protects the people of one state from the dictated policy preferences of another.  It allows those governments closest to the people to determine the policies that impact daily life—at least that’s how it was designed.

The Erosion of Federalism

The structural safeguards protecting state and federal power against what Justice Kennedy called the “incursions of the other,” have unfortunately eroded. The Seventeenth Amendment in 1913 that called for the direct, popular election of U.S. Senators dealt a significant blow to the original constitutional bulwark.  After 1913, the several states no longer had direct representation in Congress, as their Senators were no longer elected by their legislatures. The Amendment’s effect was tempered for several years, despite the agenda of the early Progressive movement to expand federal authority, because the Supreme Court took a relatively narrow view of national powers in those days. That view, however, would eventually change. 

In the late 1930s and early 40s, under tremendous pressure from President Roosevelt, the Supreme Court began taking a broader perspective of the scope of federal power.  In so doing, the Court radically redrew the lines between “local” and “national” interests, and shifted the delicate balance of power and sovereignty in Washington’s favor. 

Perhaps the Court’s most infamous decision on federalism, Wickard v. Filburn, started just outside Dayton, Ohio. At issue was the federal quota limiting the amount of wheat that farmers could legally grow. Montgomery County farmer, Roscoe Filburn, grew his quota, but also grew some extra wheat for his family’s own consumption. Federal authorities charged Mr. Filburn with violating the federal quota, and Filburn challenged Congress’s authority to regulate the size of his personal crop—he had no intention, after all, to sell his personal family portion across state lines.  Thus, argued the farmer, he was not engaged in interstate commerce and therefore was beyond federal reach. In its 1942 decision, the Supreme Court disagreed.

The Wickard Court held that Mr. Filburn’s personal wheat consumption could be aggregated with other farmers who might also plant their own wheat, and that, when aggregated, these personal portions could impact the national wheat market. Such a potential impact, said the Court, brought Mr. Filburn’s private wheat stock within Congress’s authority under Article I, Section 8 to “regulate commerce with foreign nations, and among the several states.” 

Since then, the country’s balance of sovereignty as never been the same, as virtually any facet of local, daily life—once aggregated—could be construed to have a national impact. In fact, it would be more than fifty years after Mr. Filburn’s case before the Supreme Court would find a federal law exceeding the outer limits of Congress’s authority to regulate interstate commerce.

The effect of such a shift in the balance of power was summarized more recently by Justice Clarence Thomas, who wrote:

There is a danger to concentrating too much, as well as too little, power in the Federal Government. This Court has carefully avoided stripping Congress of its ability to regulate interstate commerce, but it has casually allowed the Federal Government to strip States of their ability to regulate intrastate commerce—not to mention a host of local activities. . . .

Unfortunately, the Constitution’s interstate Commerce Clause has not been the only lever that Congress has pulled to further shrink the sphere of the several states. When the ever-elastic powers of the Commerce Clause are not enough to impose Washington’s will, Congress often resorts to Don Corleone’s famously effective approach in The Godfather—and makes them an offer that states can’t refuse. That offer typically involves Congress sending states vast sums of federal money in exchange for states doing what Congress is not otherwise authorized to do. For example, Congress’s once-popular but now widely-criticized Crime Bill of 1996 offered money to states if they would increase prison sentences for those convicted under state law. Here, Congress inserted itself into local criminal justice matters that had been traditionally—and for good reason—left entirely to the state and local authorities. The money, however, was too much to resist and many states obediently rewrote their criminal statutes in order to take Uncle Sam’s cash.  Like the Commerce Clause, the Supreme Court has found precious little beyond Congress’s so-called Spending Power—a coercive power that Chief Justice Roberts once called “a gun to the head.”      

Collectively, or “in the aggregate,” constitutional amendments and the Supreme Court’s reinterpretation of constitutional authority have eroded the safeguards of federalism over the years. The structural lines that protected each political sovereign from the “incursions of the other” have been undeniably blurred.  But there is hope.

The Future of Federalism

Few would argue that federalism today remains the robust stalwart against federal encroachment that James Madison and Alexander Hamilton had envisioned. The ebbs and flows of history and jurisprudence have taken their toll. But the constitutional structure that originally “split the atom of sovereignty” still remains, and it affords opportunities for states to assert their prerogatives once again. To do that, state attorneys general must continue to vigorously defend state sovereignty against federal action in court. Regrettably, such resistance will likely need to become the norm and not the exception if Ohio and her sister states are to restore the rightful balance of constitutional power.

And you, serving as the legislature, will also need to join the fight. In the last session, the General Assembly stood up for Ohio by limiting federal efforts to circumvent protections that you extended your constituents through civil asset forfeiture reform. You wisely closed a loophole in the federal Equitable Sharing program that had allowed law enforcement to evade state restrictions on civil forfeiture and take property from those who had never even been charged with a crime. But more than just closing loopholes, you can actively resist the temptation to take federal dollars that Congress offers to entice Ohio to do its bidding. As we all know, those dollars inevitably dry-up and all that’s left are growing piles of red-tape and state debt. By resisting the siren song of Congress, Ohio can once again begin to safeguard her own sovereign, political interests. As Chief Justice Roberts quipped a few years ago, “The States are separate and independent sovereigns. Sometimes they have to act like it.” 

Conclusion

Thank you for the opportunity to address this important subject today. I would be happy to answer any questions you might have.