The Death of Federalism

Column for week of June 16, 2014

     The government in D.C. is commonly called "the federal
government."  We have federal laws, federal buildings and
federal courts.  What is federal about them, other than the
names?

     A federation is an association of independent entities.  In
the beginning this described "These United States."  And, in the
beginning the USA was referred to as "These United States."

     On separation from Britain each colony became an
independent nation.  These sovereign nations formed a federation
and assigned it certain tasks.  This federation was to serve its
sovereign member nation.  The 13 sovereign states were not
ruled by the federal government they created.

     The original federation proved unsatisfactory to some. 
The U. S. Constitution created a new federation.  Each of the 13
sovereign states voted to join the new federation.

     The constitution creating the new federation clearly stated
that the federal government had only the few powers named in
the Constitution.  All other powers were reserved to the
sovereign states and the people.  This was a true federation.  The
federal government was to serve the states, not rule them.

     Contrast this with state governments, such as Michigan. 
No one I know calls Michigan a federation of counties. 
Counties didn't get together and form the state.  State
government created the counties to serve the purposes of state
government.  Counties have only the powers and privileges
granted by the state.  The counties are essentially administrative
districts of the state.

     Today the states have lost their sovereignty and are now
mere administrative districts of the no longer federal government
in D.C.  We now have a national government ruling the states.

     Any powers and privileges retained by the states are no
more than gifts from the all powerful national government.  The
national government hasn't yet seized control of all functions
once reserved to the sovereign states.  The national government
has only seized the powers the D.C. politicians find most
beneficial to themselves.

     How and when were the sovereign states turned into mere
servants of the federal government they created?   The when part
is easy.  The last vestige of federalism died November 9, 1942. 
That was the day the Supreme Court issued its ruling in Wickard
v. Filburn, 317 U.S. 111.

     Federalism was under siege from its beginning.  The
politicians have always wanted more power.  Wars provide the
greatest opportunities to grab power.  Federalism suffered its
first great losses during the Civil War.  World War I further
expanded the power of the still federal government.  Federalism
was already on the endangered species list before November 9,
1942.

     The subject mater in the Wickard case was quite minor,
11.9 acres of wheat harvested by Ohio farmer Roscoe C. Filburn. 
The government in D.C. had taken unto itself the power to tell
farmers how many acres of wheat they could grow.  That power
supposedly sprang from the Constitutional power to regulate
commerce among the states.

     There was one small fly in the ointment.  Filburn's wheat
never left his farm.  Filburn claimed his wheat had nothing to do
with interstate commerce.  A unanimous Supreme Court ruled
otherwise.

     The court found that if farmer Filburn hadn't grown the
wheat he might have bought wheat to feed his chickens.  Thus,
Filburn's growing of the wheat might have affected interstate
commerce.  That was good enough for the court.

     Under this rational I defy anyone to name even one
action or inaction that might not affect interstate commerce and
thus be subject control by the national government.  Federalism
is dead.  The now national government (call it the nats, not the
feds) is free to usurp any power it wishes from the now
subservient states.

     Occasionally the Supreme Court issues an opinion
inconsistent with Wickard.  There is nothing unusual about the
court issuing inconsistent decisions.  The Court still recognizes
Wickard as the law of the land.  Federalism is still dead.

     Next time:  Why does federalism matter?

aldmccallum@gmail.com
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Copyright 2014
Albert D. McCallum