Has Federalism Become Like Sandcastles on the Beach…?
Spring has sprung. It will soon give way to summer. I went to law school in San Diego. Summer meant one thing – hanging out at the beach! Blue skies, hot sand, and the fresh ocean breeze.
Frequently, there would be professional sandcastle contests. I once saw a perfect likeness of the dancing hippos from Fantasia made out of sand.
We would always try our hand at making sandcastles. I don’t remember us ever making anything like a dancing hippo, but sometimes they weren’t half bad. We’d marvel at our unique creations for a while and then jump in the water, walk along the beach, or engage in a dozen other activities – leaving our sandcastles behind on the beach. Invariably, we’d come back, and our “amazing” sandcastles had been washed away by the tide.
The professional sandcastle builders were more careful and more deliberate with their creations. They would build their sandcastles out of the reach of the tide or behind a seawall, and they would remain there for days and weeks for people to enjoy.
Constitutionally, the States have been given the specific assignment to build certain kinds of sandcastles. In Federalist 45, James Madison informs us that the “[sandcastles] reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”
So, we go to work in our States and build all manner of sandcastles to serve the unique life, liberty and property needs of our people. And, all too often, while we are engaged in other activities, the federal tide comes rolling in and washes away our amazing and unique work for our people. Increasingly, we either build another sandcastle in the same spot that also gets washed away, or we just give up building those types of sandcastles all together.
I had a recent experience that highlighted this reality for me. Last October, I attended an American Enterprise Institute (AEI) Leadership Network event in Chicago. At lunch one day, I sat next to Amanda Parker. I didn’t know Amanda then, but we have become fast friends in a crucial federalism effort.
As we shared brief introductions, Amanda told me she is the Senior Director for the AHA Foundation. She explained that the AHA Foundation was established by the renowned women’s rights and free speech activist Ayaan Hirsi Ali and that they are working to eradicate the abhorrent practice of female genital mutilation (FGM).
I responded that I serve in the Utah House of Representatives, thanked her for her important work, and casually responded that my state of Utah obviously doesn’t have an issue with FGM. Amanda immediately got on her phone, searched her database and informed me, “there are 1,800 little girls at risk of female genital mutilation in Utah.”
I was horrified!
With Amanda still sitting next to me, I called our legislative counsel and requested that they immediately open a bill file to outlaw female genital mutilation in Utah.
Here’s where federalism comes in. A couple of weeks later, news broke that a federal district court struck down a federal ban on female genital mutilation as unconstitutional on the grounds of federalism.
“As despicable as this practice may be,” the court concluded, “FGM is ‘local criminal activity,’ which, in keeping with longstanding tradition and our federal system of government, is for the states to regulate, not Congress.” Deciding this case squarely on the basis of federalism, the court concluded “the clearest example of traditional state authority is the punishment of local criminal activity.”
The Framers reserved to the States the “police power;” the general jurisdiction over the health, safety and welfare of their people. The Supreme Court has repeatedly reiterated that “this general power of governing,” including the governing of local criminal activity, is “possessed by the States but not by the Federal Government.”
However, Congress, with the best of intentions, ignores the police power of the States, acting under the Necessary and Proper Clause, the General Welfare Clause, the Commerce Clause or, as is the case of the federal FGM ban, under the Treaty Power through an innocuous international treaty, to regulate all manner of local criminal activity in our States. And this is how our State sandcastles get washed away.
As with the case of a federal FGM ban, while we have been engaged in other activities, the federal tide has crept in and washed away much of our jurisdiction and general power of governing. In the process of taking on all things for all people in the United States, our federal partner has amassed a $22 trillion national debt, and left our people with a centralizing government that is inefficient, ineffective and unaccountable on the most basic matters of life, liberty and property.
The crucial divisions of governing responsibility that characterize our unique American system of federalism will continue to erode, unless we begin erecting seawalls to guard our unique State sandcastles from a persistent federal tide. As is the case with an FGM ban, and a host of other well-intentioned intrusions, if Congress can prohibit even local, non-economic crime, then our federal government is many things, but it isn’t “limited.”
We can take a simple, yet substantial, step in restoring the seawall of federalism by banding together to criminalize the horrific practice of FGM in all of our States. This year in Utah, we passed HB430 Prohibition of Genital Mutilation on unanimous votes in the House and Senate. In doing so, we had the opportunity to teach a broad, bipartisan audience about the importance of restoring and maintaining the seawall of federalism.
By doing this, we can send a meaningful message to our federal partner that we have not walked away from our exclusive responsibilities to exercise our police power jurisdiction to protect our people – especially the most vulnerable among us. If you represent one of these states that has not yet outlawed FGM, please contact me and together with the great folks at the AHA Foundation we will help you get this passed in your state.
Will you also please help us identify other State “sandcastles” that have been washed away by the federal tide, so we can organize and mobilize as a union of states to restore the bricks in our seawall of federalism.
This is how we restore the efficiency, effectiveness and accountability of government that our people are crying out for. THIS is federalism!