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The States and Their Powers

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The fashion, one of them anyway, since Gov. Rick Perry entered the presidential lists is to bash him as a drooling neo-Confederate, pining for the good ol' days of states' rights. Yessuh, them Yankees tellin' us what to do all the time, why it's just unconstitutional, and we needs to see-seed!

That's a pretty fair representation of the media trash-talk directed not just at Perry, but at the idea that the United States is constructed as something more than a drill team, kicking and stamping in unison, wheeling this way or that as the leader's baton moves about.

The topic of states' rights, or federalism, is ripe for examination in a context where deference to Washington, D.C., sometimes seems a way of life. The U.S. Constitution is "the supreme law of the land," but the same glorious document is filled with the presence of the states, in ways large (ratification of constitutional amendments) and small (exemption from export taxes or duties).

Under the Articles of Confederation, the states had sometimes behaved like independent nations -- quarrelsome ones, at that. The Constitution -- to which all the states freely assented -- was the compromise solution. There would henceforth be things the states could do; there would be things they were forbidden to do -- for instance, "enter into any agreement or compact with another state, or with a foreign power..." The Tenth Amendment conceded to the states, rhetorically at least, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states..."

There is wonderful ambiguity in the Tenth Amendment. It hardly keeps the federal government from running all major shows, from defense to environmental protection, but it acknowledges the states as vital participants in the Union.

The present point isn't, should states have the right to leave the Union, slamming the door behind them? The point is, what's the point of ridiculing, at the snootier altitudes of commentary, a basic component of the federal system? If the term "states' rights" -- as in Strom Thurmond's pro-segregation States Rights Party of 1948 -- gives offense, just say federalism. It's the same thing. A federal system of government (think: "federation") allocates lawful power to different recipients.

Why does it do so? That may be the question. At the constitutional convention of 1787, the great John Dickinson of Delaware, statesman and philosopher, argued (according to James Madison's notes) "The division of the country into distinct states formed (a) principal source of stability. This division ought therefore to be maintained, and considerable powers to be left with the states." Madison found him still more inspired a few days later: "To attempt to abolish the states altogether, would degrade the councils of our country, would be impracticable, would be ruinous. He compared the present national system to the solar system, in which the States were the planets, and ought to be left to move freely in their proper orbits."

Thomas Jefferson, a decade later, would adopt the planetary trope. "The enlightened statesman, therefore," he wrote, "will endeavor to preserve the weight and influence of every part (of the Union), as too much given to any member of it would destroy the general equilibrium."

A good thing the gentlemen of the founding generation weren't exposed to the Internet, where they would quickly learn that hick politicians from the ex-Confederacy ought to shut up about Washington, D.C.'s, power to sabotage the economy, dictate educational policy and compel everyone and his dog to buy health insurance.

When it comes to human affairs, balance is the hardest commodity in the world to respect and effect. We're always listing, it seems, to starboard or port: always on the verge of tipping over. With Washington running, or trying to run, pretty much the whole national show, you might think there was room for constructive discussion concerning Dickinson's and Jefferson's challenging thoughts on the division of power. Maybe we'll get there yet, what with the seeming impossibility these days of just ignoring the governor of Texas.

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