This article originally appears at Frum Forum.
In an excellent article in The New Republic, Sean Wilentz takes to task those who wish to resurrect the pernicious doctrine of “nullification” to thumb their nose at the federal government on health care reform. Unfortunately, Wilentz conflates nullification with the idea of “states’ rights” in general:
Although not currently concerned with racial supremacy, the consequence of their doctrine would uphold an interpretation of the constitutional division of powers that would permit the majority of any state to reinstate racial segregation and inequality up to the point of enslavement, if it so chose.
Is opposition to health care reform at the state level leading to a resurrection of slavery? Really?
That much has been done in the last 100 years to undermine the 10th Amendment is not debatable. That the cause for this was considered just is equally true.
At the same time, in our zeal to improve the lives of American citizens, we have allowed the very concept of federalism to atrophy. Even debating the idea that the 10th Amendment can be redefined so that it can be made relevant in a 21st century industrialized democracy is seen as an exercise in futility.
Clearly, there are many functions of government that do not lend themselves to the concept of federalism. We can’t have 50 different air quality or water quality standards. Nor does the prospect of 50 OSHA’s or MSHA’s, or FDA’s, or any number of federal agencies responsible for our health and safety make any sense.
But is it possible to take a hard look at these agencies and discover a few responsibilities they currently enjoy that might be better performed by states? If it can be done without gutting them, why not try? Shouldn’t states have a lot more to say about how federal lands are used within their boundaries? Those lands are enormously valuable in many respects and yet the states have little say in the leasing and development schemes of the federal government. And it is long past time we take a very hard look at the Department of Education (with a $63 billion budget) and find a way to turn that department into an adjunct to local efforts at teaching our children rather than as a repository for bureaucrats to carve out their petty empires. With educational achievement at historic lows, it is evident that at least some of that money might be better given to states and local school districts to use as they see fit.
The concept of federalism today is a far cry from what the Founders envisioned. But that’s how it should be, and it’s perfectly in keeping with what those men imagined for the future. They may have written the Constitution for a small coastal republic of 7 million citizens, but were prescient enough to give their creation the revolutionary ability to change with a changing country.
Now that we are a continental nation of 300 million – as diverse and vibrant a society that has ever existed -it is time to re-examine and reinvigorate the founding notion that power shared and dispersed among many is the bulwark against which no force can threaten our liberties. Resurrecting the ghosts of the past to discredit this notion should be met with the contempt it deserves.