The winds of change are howling through the halls of American federalism. The states are clamoring to take responsibility for billions of dollars of social welfare programs now controlled by the federal government. Wisconsin Governor Tommy Thompson has said “We’re seeing a rebirth of [state power], and I’m totally comfortable with the states’ ability to handle it.” Even the devoutly pro-establishment National Journal, in its July 29th issue, noted that recent Supreme Court decisions have “fueled the fires of federalism.”
At the root of the devolution movement is the Tenth Amendment to the U.S. Constitution, which 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.” Intended by the founding fathers to be a bulwark against the concentration of power and resources in the hands of the central government, the Tenth Amendment historically has been ignored by politicians as well as judges. Instead, the national government has been allowed to dominate the states, becoming far more involved in matters of commerce and conscience than the founding fathers ever intended.
In recent months, the Supreme Court has helped push along the call for less federal authority and more state and local autonomy. In U.S. v. Lopez, for example, the Court invalidated a federal law barring possession of guns near school grounds, marking the first time in sixty years that the courts have found a limit to federal power granted under the Constitution’s commerce clause.
The Court is dusting off the Tenth Amendment partly because of the convictions of a new and passionate member of the Court, Justice Clarence Thomas. But it is also being pressured to act by a surge of litigation on issues of federal-state relations. The Brady Law, which requires local police departments to conduct background checks on gun buyers, has been successfully challenged on Tenth Amendment grounds in five district courts around the country. A half-dozen states have filed suits challenging the constitutionality of the 1994 National Voter Registration Act. States are launching legal action against the federal government over the Endangered Species Act, the Clean Air Act, and other federal programs.
State and local governments have become more litigious because unfunded federal mandates have become unbearable. Michael Pompili, assistant commissioner for health of Columbus, Ohio, says new environmental protection mandates are being imposed on local government at “a torrid pace.” In a recent issue of Regulation magazine, he writes: “The cumulative impact of these mandates with other non-environmental mandates makes it virtually impossible for any community, large or small, to remain in compliance without neglecting other essential local governmental services.”
Still another factor fueling the devolution movement is dwindling public confidence in the federal government. Media coverage of the disasters in Waco, Texas, Oklahoma City, Oklahoma, and Ruby Ridge, Idaho revealed that millions of Americans are afraid of their own government. Even more shocking, this fear is reasonable. With alarming frequency, the activities of agencies such as BATF, IRS, DEA, and EPA cross the line between law enforcement and assaulting constitutionally protected liberties.
Dr. Mary J. Ruwart, a scientist, author, and long-time libertarian activist, believes the devolution revolution must reduce the use of violence by all levels of government. She locates the roots of the Oklahoma City bombing in the fact that using force to achieve social and political ends has become commonplace in America. “In this manner,” writes Ruwart, “violence against others has become an acceptable option. Since this violence is largely perpetrated through government, the average individual rarely thinks consciously about its true nature. Unconsciously, however, the seeds of violence have been sown. Those seeds have borne fruit.”
The alternative to devolution could be the loss of the federal system of government our founding fathers gave us, and the rise of domestic terrorism to levels previously unknown in America. With so much at stake, surely it is time to consider restoring the protections of the long-neglected Tenth Amendment.
Joseph L. Bast is president of The Heartland Institute, a nonprofit research organization based in Palatine, Illinois.
Joseph Bast is a Senior Fellow at The Heartland Institute. He cofounded Heartland in 1984, serving as executive director then as president & CEO until January 2018. His research and writing focuses on climate change and energy policy.
