The following was written by Convention of States co-founder Michael Farris, and is the sixth in his recent series on constitutional philosophy. Click here for Part I, here for Part II, here for Part III, here for Part IV, and here for Part V.
We have checks and balances (in theory) between the executive, legislative, and judicial branches. Again, the reason for this design was to ensure that there was not an excessive accumulation in any one branch.
Preventing the federal government from accumulating too much power is the chief reason that federalism is such a prominent feature of our constitutional system.
Here’s how it’s supposed to work:
The federal government was given 100% of the jurisdiction on a few key issues. The states retained 100% of the jurisdiction on everything else. The exceptions to these rules are exceedingly narrow.
In general, there is no such thing as shared federal-state jurisdiction.
States have jurisdiction over education. Thus, there is no federal jurisdiction over education.
(I will use education to illustrate how the rare exceptions work. Congress possesses the same power that states have over the District of Columbia. Thus, there is federal jurisdiction over public schools in DC. The same thing is true about schools on military bases. But no state has jurisdiction over either DC or military bases.)
States have jurisdiction over banking, mining, agriculture, manufacturing, environmental issues, and common law crimes. Also the states have jurisdiction over marriage laws and child welfare. States have jurisdiction over welfare programs and police and fire.Thus, the federal government has no jurisdiction over any of these subjects if we were following the Constitution.
Shared jurisdiction never produces twice the services for people but it does ensure more bureaucracy, regulation, and taxes. In almost every case, shared jurisdiction is also unconstitutional.
Here is what our country would be like if we followed these rules:
1. The National debt would be close to zero. The real drivers of the debt are entitlement programs—all of which fall within state jurisdiction.
2. The size of the federal government would be at least 60% smaller.
3. Federal taxes would be lower.
4. It would be more important to be a member of the state legislature and less important to be a member of Congress.
5. The federal courts would have far fewer cases and a much smaller impact on the nation.
6. Because more decisions would be made close to home, the people would have more genuine access and control over the use of power.
7. Congress could be more of a part time endeavor.
8. Interest groups, unions, and lobbyists would spend far less in DC and far more in the states because that’s where the bulk of the decisions would be made.
I could go on.
The swamp festers in DC principally because the states have not insisted on strict enforcement of federalism.
The mechanism the Framers gave us is Article V. And because of the collusion of left wing nationalists and far right scare mongers, it has been difficult to use Article V to call a Convention of the States to reduce federal power.
The correct system was designed for us. We know that federalism would work. But we have let fear and lies rule the day.
Until the people demand a Convention of the States there will only be small changes in the rate of the growth of the swamp.
Article V is the true Federalist path. Will we take it?