Or, more accurately, I should say, “when did it change?”

GorT has been giving our current political landscape some thought over the past few weeks and has become a bit fixated on thinking that if only we had adhered to the dual federalism set up in the Constitution, our country would be in a much different, and maybe better, place. Consider for a moment what this country could be if the states retained more of their independent authority, the Tenth Amendment held fast, and the federal government retained only those powers enumerated to it. This is consistent with the early structure laid out in the Constitution and Bill of Rights. Everything from abortion laws to gay marriage could be an individual state issue. So the question is: when and how did this happen?

Let’s jump in my time machine and go back to late December 1791. The Constitution and the Bill of Rights have just been ratified. The Tenth Amendment, originally proposed in 1789, was included in the Bill of Rights to satisfy the anti-federalists who feared a stronger, centralized government just after getting out from under Britain’s thumb. The Amendment reads:

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

Tenth Amendment of the U.S. Constitution

This Amendment is derived from a similar clause in the Articles of Confederation that read:

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled

At this point the country has a federal government funded and limited to specific (enumerated) powers laid out in the Constitution and Bill of Rights and the rest of the governance power lies within the states. As pointed out in this excellent breakdown, Alexander Hamilton starts the ball rolling with proposing that taxation for the “national interest” in learning, agriculture, manufacturing, and commerce are within the sphere of “the national councils'” purview. He contradicts it in Federalist #17 and #34 saying that agriculture and other similar efforts are properly provided for by local legislations are not a care of the federal government. James Monroe pulled a similar move with his veto of the Federal Public Works Bill in which he puts forth that States have the power sought, not the federal government. But then, he stated 16 years later while President that he saw no Constitutional objection to appropriate money for public improvements.

Now we jump ahead to the 1920s when we find the ultimate culprit in these matters: The U.S. Supreme Court. Through a series of decisions, the Supreme Court decisions enabled the federal government to tax and to spend beyond the original Constitutional constraints. Leading up to this, the SCOTUS had been weakening the equal sovereignty of states with regards to the federal government (specifically in Hunter v. Martin (Va. 1814), Martin v. Hunter Lessee (US 1816), New York v. Miln (US 1837), and The License Cases (US 1837)).

As stated in the piece I reference above:

[A]t this point there were still a few areas that the states were left alone.  These were the means of production like mining, agriculture, manufacturing and the employee/employer relationship.

That is, until President Roosevelt and the New Deal came along.  During the time of the New Deal was when the last vestiges of federalism were swept away.  It was during this time that FDR was instituting his court pack threat to the Supreme court that the last bit of sovereignty the states had disappeared.  Today, there is absolutely no concept of Federal equilibrium with the states in any ingredient of national legislation.

This incremental erosion of the states’ powers and their abdication thereof to the federal government has created a host of problems. We are a nation of people, with a common set of beliefs and goals, but also with differences in methods and priorities. The dual federal construct originally proposed and implemented enables these two natures to co-exist. But it has been corrupted by politicians (I’d argue more on the liberal side of the spectrum). In closing, let me quote another part of the piece:

[T]he National Government holds out inducements, primarily of a monetary nature, to the States in what is referred to as “grants-in-aid“.  These monetary inducements seduce the states to use their reserved powers to support certain objectives of national policy.  In other words, the greater financial strength of the National Government is joined to the wider coercive powers of the States.

Thus since 1911, Congress has voted money to subsidize all kinds of things from forest-protection to education, industrial to experimentation, highway construction and so forth.  All the States have to do is appropriate equal sums for the same purpose.

The only hitch being that they promise to jump through every single hoop laid down by Congress.

Since the concept of “Cooperative Conception” was introduced, the national government’s superior fiscal resources (through the Federal Reserves power to print money) have been used to constantly concentrate their power over local policies and supervision.

With the changes that have happened to the concept of dual Federalism, the system has been overwhelmed and submerged.  Today the question faces us of whether the States can be saved for any useful purpose?

As it stands now, the states serve very little function in the overall system other than just another governmental body of red tape and taxation.  Yet, it is very important to remember that no constitutional amendments have been passed altering the dynamics between the state and the federal government.  Everything that has transpired has happened in the judiciary and not through any movement by we the people in the form of amending the constitution.