Strite 1

On Federalism: the Inherent Right of State Sovereignty in the Constitutional Order

Greg Strite University of Washington Tacoma Law and Society 363 Spring 2013

Strite 2 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. Amendment 10 I. INTRODUCTION The Tenth Amendment, quoted above, typifies the original intent of the Framers to create a federalist system where the national government would insure life, liberty and property, by securing citizens primarily from foreign threats, and would leave to the states police powers that would allow each state to act as a sovereign in a mutual compact for the shared benefit of the whole. The Constitution of the United States is premised, and, of equal, if not greater importance, is written so as to codify the federalist system in an enduring state that can only be changed by surpassing what at times seems to be an insuperable hurdle of amending the text of the original document. As noted by Cooper (2011), [t]he Tenth Amendment expresses the principle that undergirds the entire plan of the original Constitution: the national government possesses only those powers delegated to it (p. 1). Whats more, the estimable James Madison wrote in The Federalist No. 45 that all powers not enumerated and delegated to the national government by the Constitution would remain with the state governments. The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace negotiation, and foreign commerce; The powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement, and prosperity of the state (para. 9). The central question that inevitably arises from the notion of a federalist system, where a republican form of government fosters a pluralistic society with countervailing powers, is: should the national government or the states create the majority of the laws that govern the

Strite 3 people? Some answer this question by arguing that it is the responsibility of the national government to rule over the lives of all the citizens in the country, and that the states must take a secondary, if not tertiary, role, to the prerogatives of the national government. Others counter that the constitutional dynamic created by the Framers and epitomized by the Tenth Amendment, rests the police powers of government in the states, and that it is the states where the majority of the laws are legitimately made. This essay will argue that it is in the states, which are united for the purposes of mutual security and fidelity, where the majority of the nations laws should be made. Often the debate over federalism (who should make the laws of the nation) breaks down between big-government progressives on one side, and limited government, constitutional conservatives on the other. I will argue that big-government progressives are woefully mistaken in their opinion that the national government should rule with a coercive power over the states, and will use two contemporary issues, Obamacare and same-sex marriage, to elucidate my contention that the states are the rightful and legitimate place where the overwhelming majority of the nations laws should be made. It is beyond the scope of this essay to provide a full elucidation of all the contemporary issues involving federalism today. As a general rule of thumb, when natural and unalienable rights are not involved, the national government should defer to the state legislatures. When natural and unalienable rights are involved, the national government and the states both have the shared responsibility to insure that citizens rights are protected under the principles of Americas social compact the Declaration of Independence and United States Constitution.

Strite 4 This means that on immigration reform, states like Arizona should be able to craft laws that the citizens of its state best feel keep them safe and protect their property; provided that, any law does not diminish national law states can add too, but not take away from laws passed by Congress when it exercises an enumerated, and thus legitimate, power. On the legalization of drugs, the federal government should abolish all of its drug laws and let the states enact progressive or, draconian drug policy, and let the states experiment and see what works best. Ditto for prostitution, and any number of other issues. Again, so long as a natural right is not involved like the natural right given by nature or natures God, to defend oneself, and thus possess a firearm then states should be allowed to legislate and regulate as they see fit. If citizens do not like the laws of their state, they are free to move to a state that has laws more congenial to their disposition. From the discussion above, it is clear that there are many issues that must be untangled to get a clearer sense of the utility of a federalist system where states have sovereign rights. The task of disentangling that problem will be accomplished by examining two contemporary concerns confronting America today, and illustrating that both the Constitution of the United States, and common sense, demands that the states legislate the majority of our nations laws. We will now turn to the first contemporary issue in which it will be shown that the states are the province best suited to craft the laws of the nation. II. OBAMACARE The Patient Protection and Affordable Care Act (Obamacare) was signed into law on March 23, 2010, after a cantankerous debate that lasted for well over a year. Two years after President Obama signed Obamacare into law, the Supreme Court ruled on June 28, 2012, that

Strite 5 parts of the law were valid under the taxing authority of the Congress (Smith, 2012, para. 19, 24). Mr. Obama predicated his health care reform on the premise that all individuals had a right to health care, regardless of preexisting conditions, and that the best way to address the deficit of millions of American who did not have health insurance, was to expand Medicaid coverage to above 133% of the poverty line, and to compel individual citizens who did not own health insurance but who could afford it, to purchase a minimum amount of coverage the minimum coverage requirement was meant to address the problem of Free Riders: people who use the health care system but dont have health insurance (Childs, 2012, para. 1-11). Whats more, Mr. Obama argued that he and Congress had the prerogative to pass Obamacare through either or all of Article 1, Section 8, Clauses 1, 3, and 18, as well as the Sixteenth Amendment (Kroger, 2011, para. 1-8). It is beside the point that Mr. Obama, the Congress and Chief Justice Roberts think Obamacare is good law; Obamacare is in fact, one of the largest usurpations of a states right to control its own police powers in our nations history. When it comes to health care the national government should not, and does not, have the power to compel citizens to buy health insurance. Those two issues, should the government run the nations health care, and does the national government have the constitutional power to do so under the system of federalism, are central to the question of states rights. As Moffit (2011) argues, Obamacare is an unconstitutional violation of personal liberty and strikes at the heart of American federalism (p. 5-6). We will first turn our attention then, to the constitutional legitimacy of nationally mandated, and run, health care. Following that examination, I will explore the virtue of states regulating health care, as opposed to the national model imposed by Obamacare.

Strite 6 A. Obamacare and the Destruction of Federalism, Liberty and the Constitutional Order Proponents of Obamacare usually avoid the question of federalism when addressing the question of the constitutionality of the law; rather, they seem to argue that because Obamacare is designed to do nice things, for people who need help, that it is ok to do (Dworkin, 2012, para. 18). Progressives who share the sentiment that doing good trumps the constitutional order, obviously do not care much for the laws of this nation; instead, they are concerned with Soviet style planning from the top down that will destroy our federalist system and bequeath to the national government plenary power over the lives of all Americans. Indeed, the main argument on federalist grounds against Obamacare is that the law has no limiting principle and bestows plenary power to the national government. In essence, by using the commerce power, taxing authority or Necessary and Proper Clause, to compel citizens to buy health care, the national government has no limit to what it can force individuals to do a notion that would abhor the Framers of the Constitution. As Turley (2010) postulates in his arguments on the unconstitutionality of Obamacare, the guarantee of federalism, where states would craft the majority of the nations laws, was essential to ratifying the Constitution and embodied in the 10th Amendment guarantee that that states would have sovereign authority in all but a few precise areas (para, 3). Nowhere in the pages of the Constitution is there an enumerated power that enables the national government to force citizens to buy health care. If the national government has the ability to bring people out of inactivity, into activity, so that they can be regulated and forced to purchase a good that the government feels they need, there is no limit to what the national government can do. The Federalist No. 45 makes clear that it is the states that have numerous

Strite 7 and indefinite powers, and that it is the national government that has few and enumerated powers. Obamacare turns on its head the dynamic articulated in No. 45 and rearranges our constitutional order so that citizens, and the states, are servants of the national government that has unlimited powers to force individuals to do whatever it desires. B. Why States are Better Suited to Regulate Health care The states are better suited to craft laws that deal with the health of their citizens than is the national government. Answer this question: who is more likely to know the specific health care needs of the citizens of Washington State, the Governor of the state, or the national Secretary of Health and Human Services, Mr. Obama and a plethora of unseen bureaucrats in Washington D.C.? The answer to that is axiomatic and it is almost insulting to have to ponder such a rudimentary notion! How is it that bureaucrats thousands of miles away in a distant capital are expected to know the precise needs of a diverse and unique state? The point is that they cannot; especially when one considers the fact that there are 50 states, all with unique populations, histories and customs, which make Soviet style planning impossible. Additionally, the Framers established federalism because they were leery of a national run economy. The Framers were aware that federalism fostered the economic freedom that would allow individuals to prosper and create and grow wealth. History has proved them right: Soviet Russia, China, Cuba, Venezuela and the Warsaw Pact, are all examples of the miserable and cataclysmic failures of government planners. Why, if the USSR failed with a national run economy, and health care system for that matter, would we emulate a system that brought about nothing but death and despair? Capitalism has been the greatest force for good in human history; instead of stifling market forces through Obamacare, we should embrace federalism and free

Strite 8 markets, and allow states and private industry to innovate and provide quality care for the citizens of their states. A critic may say that left unfettered, the free market and states will continue to drive up costs that make health care affordable for only the well off. A simple retort is that of course health care costs are high and will only go higher a hundred years ago there was no such thing as a quadruple bypass, but I am sure there is a progressive with a blocked artery that is glad that some capitalist, operating in the federalist system, figured out how to fix his heart; regardless of what the costs are! There is no doubt that Obamacare is disastrous for our economy and constitutional order. It destroys states rights, and the free enterprise system. An equally dangerous threat to the sovereignty of states rights, is the movement now under way to radically alter Americas traditions and history by forcing sovereign states to recognize same-sex marriages. III. SAME-SEX MARRIAGE In late March of this year, the Supreme Court heard oral arguments on two issues pertaining to the constitutionality of same-sex marriage. The first case brought before the court was Proposition 8, a California ballot initiative, which defined marriage as between a man and a woman. The second case brought before the court, came via the First Circuit Court of Appeals, and dealt with whether or not Section Three of the Defense of Marriage Act (DOMA) was constitutional (Cruz, 2013, para. 1-2, 10-12). Proponents of same-sex marriage argue that Proposition 8 and DOMA are unconstitutional on Equal Protection grounds and that not allowing same-sex couples to marry is (somehow) invidious discrimination (Levy, 2013, para. 6). Whats more, advocates of same-sex marriage contend that the national government has no legitimate interest in defining marriage for national purposes (Root, 2013, para, 3).

Strite 9 As noted above in the introduction to this essay, I argued that states should be able to craft laws as they see fit so long as they do not infringe on natural and unalienable rights. If that occurs, I argued that the national government has the duty to step in and insure that the nations citizens life, liberty and property, etc., are not being impinged upon. Part of the debate of samesex marriage breaks down along the lines of whether or not marriage is an unalienable right; I contend that it is not. Marriage is not a fundamental right given to man by nature or God. Rather, marriage is an institution created by man to further civilization by promoting procreating, a stable family, and an atmosphere in which children can learn and grow. Therefore, all states need is a rational basis to restrict marriage as the constituents of those states see fit. These arguments may not be palatable to progressives who seek to fundamentally alter the composition of our heritage; however, it is far beyond the parameters of this essay to tackle all of the ludicrous and specious arguments those progressives would make on behalf of an unalienable right to marry. A. What should be done about Same-Sex Marriage? Because states are sovereign, and as stipulated above, marriage is not an unalienable right, states should have the ability to define marriage as they see fit. This means that the state of Washington should be able to define marriage to include same-sex couples, while Texas should be able to define marriage as between only a man and a woman. If a citizen in Texas or Washington does not like the marriage laws in their state, they can move to any state that they find hospitable. Likewise, the national government has the prerogative to define marriage for the purposes of administration and the distribution of benefits as it believes is best for the national government if the citizens of these United States do not like national law, they are free to elect national representatives that can change the law to their liking. With DOMA, the national government is not infringing on a states definition of marriage; it is merely stipulating for the

Strite 10 purposes of national law that marriage is between a man and a woman there is no compulsion by the national government that the states recognize its definition of marriage. The best argument in favor of an anti-federalism approach to marriage relates to a concept in Article 4, Section 1 of the Constitution. The Full Faith and Credit Clause states: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved and the Effect thereof (emphasis added). Now many progressives point to the Full Faith and Credit Clause and declare that DOMA is unconstitutional because the state of Texas, under the clause, must recognize Washingtons public acts and laws of same-sex marriage. Unfortunately for progressives, they are horribly mistaken in this assumption. A closer reading of the clause shows that Congress shall prescribe, the Effect thereof. This means that the national Congress has the constitutional authority to set the conditions on which a state must give full faith and credit. It does not mean that any act or proceeding from one state must be recognized in another; rather, it stipulates that Congress can prescribe the effect of how the laws of one state are understood in another that is exactly what the 104th Congress did with DOMA! Where progressives have some ground to stand on with the Full Faith and Credit Clause, is not so much a constitutional question, but a logistical one: what happens when a married same-sex couple who has adopted a child moves from Washington State, to Texas? Because Texas does not recognize same-sex marriage, nor should they have to under federalism, this same-sex couple is thrown into legal limbo. While this dilemma presents challenges in the context of family and public law, that quandary should not alter the fact that Texas is a sovereign state with the legitimate authority to determine what constitutes a marriage and what does not.

Strite 11 This catch-22 is truly the legitimate anti-federalism position on same-sex marriage, but its veracity does not rise to the level of destroying the rights of a state to determine its destiny. IV. CONCLUSION The Federalist structure has proved far and away to be the most effective form of government created by man. America is a pinnacle nation because it embraced free markets, and constitutionalism informed by a republican structure where the national and state governments share power. Americans have invented the IPhone, the airplane and advanced medical procedures, not because a bureaucrat in Washington D.C. decreed it to be so, but rather because Americans have largely been left free from the national government to pursue their dreams. Allowing states to craft their own laws only makes sense in a large heterogeneous nation with hundreds of millions of diverse people. We know that top-down, Soviet style planning has not, and does not work. Unfortunately, over a hundred million people have had to die to learn that big-government planning leads to serfdom. Instead of running head-long down the path to serfdom that Obamacare and other biggovernment policies take us, we should reverse course and reacquaint ourselves with the notion of constitutionalism, federalism and states rights. We should never forget the meaning imparted on us in The Federalist No. 45, where Madison so deftly illuminates that the Constitutions structure is designed so that the national government will exercise its power in matters of war, peace negotiations and foreign commerce, and the states shall have powers which are numerous and indefinite (para. 9). Where power is closest to the people, the people will have the most power; where power is furthest away from the people, the people will have the least amount of power. Federalism then, is about maximizing freedom, and giving the people power.

Strite 12 V. WORKS CITED 10th Amendment. (1789). U.S. Constitution. Available at http://www.law.cornell.edu/constitution/ Article 4, Section 1 (1787). U.S Constitution. Available at http://www.law.cornell.edu/constitution/ Childs, Giselle. (2012). The Affordable Care Act Is Clearly Constitutional: Obamacare Ensures Health Care Works for Every American. Center for American Progress. Available at http://www.americanprogress.org/issues/healthcare/news/2012/06/28/11781/the-affordable-careact-is-clearly-constitutional/ Cooper, Charles. (2011). The Constitution in One Sentence: Understanding the Tenth Amendment. Heritage Foundation. Available at http://www.heritage.org/research/reports/2011/01/theconstitution-in-one-sentence-understanding-the-tenth-amendment Cruz, David (2013). States rites? Federalism and marriage litigation. SCOTUSblog. Available at http://www.scotusblog.com/case-files/states-rites-federalism-and-marriage-litigation/ Dworkin, Greg. (2012). Federalism, the Affordable Care Act and contraception. The Daily Kos. Available at http://www.dailykos.com/story/2012/02/12/1063475/-Federalism-the-AffordableCare-Act-and-contraception Kroger, John. (2011). The Constitutionality of the ACA is not a close call. SCOTUSblog. Available at http://www.scotusblog.com/2011/08/the-constitutionality-of-the-aca-is-not-a-close-call/ Levy, Robert (2011). Marriage Equality: Religious Freedom, Federalism, and Judicial Activism. Cato. Available at http://www.cato.org/publications/commentary/marriage-equality-religious-freedomfederalism-judicial-activism Madison, James. (1788). No. 45. The Federalist Papers. Available at http://www.constitution.org/fed/federa45.htm Moffit, Robert. (2011). Obamacare and the Individual Mandate: Violating Personal Liberty and Federalism. Heritage Foundation. Available at http://www.heritage.org/research/reports/2011/01/obamacare-and-the-individual-mandateviolating-personal-liberty-and-federalism Root, Damon. (2013). The Federalist Case Against the Defense of Marriage Act. Reason. Available at http://reason.com/archives/2013/03/19/the-federalist-case-against-the-defense Smith, E. (2012, June 28). Timeline of the health care law. CNN. Available at http://www.cnn.com/2012/06/28/politics/supreme-court-health-timeline Turley, Jonathan. (2010). Is health-care mandate constitutional? USA Today. Available at http://usatoday30.usatoday.com/news/opinion/forum/2010-03-31-column31_ST_N.htm

Strite 13 VI. REFERENCES 10th Amendment (1789). U.S. Constitution. Available at http://www.law.cornell.edu/constitution/ 567 U.S. ___ (2012), Case No: 11-393. Available at http://www.supremecourt.gov/opinions/11pdf/11393c3a2.pdf Anderson, Ryan. (2013). In Defense of Marriage. Heritage Foundation. Available at http://www.heritage.org/research/commentary/2013/3/in-defense-of-traditional-marriage Arkin, M. M. (1995). Intractable Principle: David Hume, James Madison, Religion, and the Tenth Federalist, The. Am. J. Legal Hist., 39, 148. Article 4, Section 1 (1787). U.S Constitution. Available at http://www.law.cornell.edu/constitution/ Bronner, Ethan. (2012). Same-Sex Marriage Issue Moves Closer to Justices. The New York Times. Available at <http://www.nytimes.com.offcampus.lib.washington.edu/2012/06/06/us/court-wontrevisit-ruling-on-gay-unions.html>. Bronner, Katharine Q. Seelye And Ethan. (2012). U.S. Appeals Court Turns Back Marriage Act as Unfair to Gays. The New York Times. Available at <http://www.nytimes.com.offcampus.lib.washington.edu/2012/06/01/us/appeals-court-rulesagainst-federal-marriage-act.html>. Childs, Giselle. (2012). The Affordable Care Act Is Clearly Constitutional: Obamacare Ensures Health Care Works for Every American. Center for American Progress. Available at http://www.americanprogress.org/issues/healthcare/news/2012/06/28/11781/the-affordable-careact-is-clearly-constitutional/ Cooper, Charles. (2011). The Constitution in One Sentence: Understanding the Tenth Amendment. Heritage Foundation. Available at http://www.heritage.org/research/reports/2011/01/theconstitution-in-one-sentence-understanding-the-tenth-amendment Cruz, David (2013). States rites? Federalism and marriage litigation. SCOTUSblog. Available at http://www.scotusblog.com/case-files/states-rites-federalism-and-marriage-litigation/ Defense of Marriage Act. (1996). Dworkin, Greg. (2012). Federalism, the Affordable Care Act and contraception. The Daily Kos. Available at http://www.dailykos.com/story/2012/02/12/1063475/-Federalism-the-AffordableCare-Act-and-contraception Farah, Joseph. (2012). The Unconstitutional Obamacare Tax. WND commentary. Available at http://www.wnd.com/2012/10/the-unconstitutional-obamacare-tax/ Feeney, Tom. (2010). Federalism Under Attack: How Obamacare turns citizens into Government Minions. Heritage Foundation. Available at http://www.heritage.org/research/lecture/federalismunder-attack-how-obamacare-turns-citizens-into-government-minions

Strite 14 Foley, Elizabeth. (2011). Limited Government, Federalism and the Affordiable Care Act. SCOTUSblog. Available at http://www.scotusblog.com/2011/08/limited-government-federalism-and-theaffordable-care-act/ Friedman, Patri. (2010). Federalism and Medical Marijuana. Reason. Available at http://reason.com/archives/2010/09/24/federalism-and-medical-marijua/print Galle, Brian. (2011). The Taxing Power, the Affordable Care Act, and the Limits of Constitutional Compromise. 120 YALE L.J. ONLINE 407. Available at http://yalelawjournal.org/2011/4/5/galle.html Goldman, Jerry. (2012). The Affordable Care Act Cases. Chicago-Kent School of Law. Available at http://www.oyez.org/cases/2010-2019/2011/2011_11_400 Grossman, Andrew. (2011). The Big Issues Behind the Obamacare Challenge. Heritage Foundation. Available at http://blog.heritage.org/2011/11/01/the-big-issues-behind-the-obamacare-challenge/ Honda, Mike. (2012). Upholding the ACA is a constitutional, moral imperative. The Hill. Available at http://thehill.com/blogs/congress-blog/healthcare/231071-upholding-the-aca-is-a-constitutionalmoral-imperative http://www.wnd.com/2012/10/the-unconstitutional-obamacare-tax/ Jay, Stewart. (2012). On Slippery Constitutional Slopes and the Affordable Care Act. Connecticut Law Review 44(4):1134-1212. Available at http://connecticutlawreview.org/articles/on-slipperyconstitutional-slopes-and-the-affordable-care-act/ Koh, H. K., & Sebelius, K. G. (2010). Promoting prevention through the affordable care act. New England Journal of Medicine, 363(14), 1296-1299. Kroger, John. (2011). The Constitutionality of the ACA is not a close call. SCOTUSblog. Available at http://www.scotusblog.com/2011/08/the-constitutionality-of-the-aca-is-not-a-close-call/ Levy, Robert (2011). Marriage Equality: Religious Freedom, Federalism, and Judicial Activism. Cato. Available at http://www.cato.org/publications/commentary/marriage-equality-religious-freedomfederalism-judicial-activism Madison, James. (1788). No. 45. The Federalist Papers. Available at http://www.constitution.org/fed/federa45.htm Moffit, Robert. (2011). Obamacare and the Individual Mandate: Violating Personal Liberty and Federalism. Heritage Foundation. Available at http://www.heritage.org/research/reports/2011/01/obamacare-and-the-individual-mandateviolating-personal-liberty-and-federalism

Strite 15 Moulitsas, Markos. (2012). Why the ACA is Constitutional in Plain English. Daily Kos. Available at http://www.dailykos.com/story/2012/03/28/1078464/-Why-the-ACA-is-Constitutional-in-PlainEnglish# Root, Damon. (2013). Federalism, Liberty, and Gay Marriage. Reason. Available at http://reason.com/blog/2013/04/02/federalism-liberty-and-gay-marriage Root, Damon. (2013). The Federalist Case Against the Defense of Marriage Act. Reason. Available at http://reason.com/archives/2013/03/19/the-federalist-case-against-the-defense Smith, E. (2012, June 28). Timeline of the health care law. CNN. Available at http://www.cnn.com/2012/06/28/politics/supreme-court-health-timeline Stolberg, S. & Pear, R. (2010, March 23). Obama Signs Health Overhaul Bill, With a Flourish. The New York Times. Available at http://www.nytimes.com/2010/03/24/health/policy/24health.html Turley, Jonathan. (2010). Is health-care mandate constitutional? USA Today. Available at http://usatoday30.usatoday.com/news/opinion/forum/2010-03-31-column31_ST_N.htm United States Court of Appeals for the First Circuit: Massachusetts v. U.S. Dept. of Health and Human Services, No. 10-2204, (2012). United States Court of Appeals for the Ninth Circuit: Perry v. Brown/Coleman v. Brown 10-16696, 1016751, 11-17255, (2012). United States Supreme Court: Maynard v. Hill, 125 U.S. 190, 205 (1888). United States Supreme Court: Zablocki v. Redhail 434 U.S. 374 (1978). Vinson, Roger. (2011). Obamacare Is Unconstitutional. Cato Institute. Available at http://www.cato.org/policy-report/marchapril-2011/obamacare-unconstitutional