Restoring Power to the People

Commentary by Pete du Pont

In 1776, American colonists began a war for independence from the tyranny of King George III. It was a war against taxes, tariffs, regulations and rules imposed by a monarch thousands of miles away wielding absolute power over the people and their endeavors.

After their victory, the colonists wrote a Constitution and attached to it a Bill of Rights to be sure a powerful and distant tyranny never again threatened Americans' freedoms. They intended a federalist form of government in which powers were balanced among national governments, state governments, and the people themselves.

Their safeguard was to spell out the powers of the national government and then state in the Tenth Amendment that "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."

But it has not worked out that way. Over the years -- the last half-century, in particular -- national power has mushroomed as the Tenth Amendment has been ignored, twisted and manipulated by Congress and the Supreme Court so as to render its words almost meaningless. Liberalism is anchored in the belief that most wisdom lies in Washington and that government's elite groups -- the judiciary, civil servants and bureaucrats -- know better what is good for us than we do. And so the national government has been allowed much more power than the framers of the Constitution intended.

If the federal courts had treated the First Amendment in similar fashion, House Speaker Newt Gingrich might be granting editorial approval to Newsweek, Minority Whip David Bonior might be deciding which peaceable assemblies in Washington truly serve the national interest, and church services might be limited to alternate Sundays during energy crises.

But suddenly, after the fall of communism and the Republican sweep of the 1994 elections, federalism is back in vogue. The Supreme Court has held that federalism "assures a decentralized government that will be more sensitive to the needs of a heterogeneous society." And for the first time in sixty years, the Court struck down a statute (the Gun-Free School Zones Act) as exceeding Congress' power to regulate commerce. Senator Dole speaks glowingly of the importance of the Tenth Amendment, and the Congress is seriously considering returning the responsibility for welfare to the state governments.

Whether any of these venerable institutions really mean it remains to be seen, so it is a good moment to set forth a strategy to ensure that federalism -- a government of powers balanced between national and state authorities -- returns to America.

Of course, only a constitutional amendment can be relied upon to firmly settle the issue of federalism. But amendments are difficult to enact and, in any case, we already have one that has not proved very effective in restraining national power.

Short of a constitutional amendment, Congress might take two steps to restore federalism. First, pass a statute stating its intention not to interfere in state matters absent a specifically stated intention to do so, and instructing the federal courts to enforce the Tenth Amendment absent such a declaration.

Second, the Congress can use the "Exceptions Clause" of Article III of the Constitution to limit the jurisdiction of federal courts to rule on matters that the Constitution reserves for the states -- such as state and local taxation, the terms of employment of state government employees, education, or local commerce.

As a specific example, consider school busing. The education of our children has traditionally been a family, local and state matter. Yet the interference of the federal judiciary into this relationship, through school busing decisions, has placed federal district court judges in the role of school administrator, principal, tax collector, and even athletic coach. An "Exceptions Clause" limitation of the federal judiciary -- simply removing the power of the federal courts to rule in busing cases -- would end the massive trampling of individual liberties and school authority that these decisions have caused.

The power of Congress to limit the jurisdiction of federal courts has been upheld in strong language by the Supreme Court: "there can be no question of the power of Congress to define and limit the jurisdiction of the inferior courts of the United States."

So the real question becomes whether Congress and the nation have the courage to push forward on these fronts in the battle to restore the rights of states and individuals under the Tenth Amendment. Now is the time for action to persuade Congress and the Supreme Court that a revival of federalism thinking, as reflected in the Tenth Amendment, is important to the future of our nation.