Federalism: How to Change the World without All the Noise
It was an unforgettable image from protests following the horrifying death of George Floyd. A young man was struck by a car after jumping on its hood. The female driver then attempted to get away from the crowd.
No one was happy about the situation; not the driver, not anyone who watched the incident, and not the young man, Max Bailey.
Max explained during a news interview why he was protesting that day:
“If you can tell me a way that we can change the world without trying to make noise like that, then I will get off the streets. I won’t stand in front of no cars anymore if there’s an easy path.”
The political acrimony spilling out of DC is building toward a November 3 crescendo, as the vast majority of the American people remain frustrated with what increasingly seems like a game of government where the only objective is to win, even at the expense of the governed.
Surveys show the American people have far greater trust in their state representatives than in the leaders in the Nation’s Capital. Americans want an effective and accountable governing system that secures their unique pursuit of happiness, but it’s becoming increasingly clear to them that Washington, DC cannot deliver.
Like Max Bailey, many Americans long for solutions that don’t require making noise in the streets.
Fortunately, there is a way: our system of federalism.
To secure our pursuit of happiness, the Framers left us “an easy path” for our voices to be heard. They designed a system which divided and balanced governing power, and provided that, in the event the legal limits of governing power were transcended, the overreach would be checked and restrained.
James Madison, in Federalist 48, described the constitutional structure to prevent “an elective despotism” from ever occurring in the United States this way:
An ELECTIVE DESPOTISM was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.
Divided governing powers. Balanced governing powers. Legal limits on governing power, which, if transcended, are effectually checked and restrained.
Most would agree this sounds nothing like our governing system today. But, have you ever wondered why?
Chief Justice John Roberts, quoting Madison in Federalist 45, reaffirmed that “[t]he Framers thus ensured that powers which ‘in the ordinary course of affairs, concern the lives, liberties, and properties of the people’ were held by governments more local and more accountable than a distant federal bureaucracy. The Federalist No. 45, at 293(J. Madison).” NFIB v. Sebelius, 567 U.S. 519 (2012).
Roberts further clarified the vital, “independent power” of the states to preserve the governing voice of the people: “[t]he independent power of the States also serves as a check on the power of the Federal Government: By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.” Id.
By dividing, limiting and balancing governing powers, the Framers sought to magnify the governing voice of the people through “governments more local and more accountable.”
If people do not have constitutional outlets for their frustration, their frustration will continue to manifest in unconstitutional ways. Perhaps it’s time for state legislators to teach their constituents that federalism is how “we can change the world without trying to make noise like that.” And, it’s the unique aspect of our governing structure created specifically to magnify our governing voice.