States' Rights and Other Myths

By Frank Trippett

"It is my intention ...to demand recognition of the distinction between the powers granted the to Federal Government and those reserved to the states or to the people." --President Ronald Reagan, Inaugural Address

Controversy over the distribution of American political power is older than the nation. The argument broke out as soon as Americans began thinking about uniting their states, and it has not stopped since. The dispute about what power lodged where grew fierce enough in the 19th century to explode into the Civil War, after which the notion of state sovereignty existed only as fantasy. Yet the issue remained flammable enough in modern times to bring on several grave federal-state confrontations, including a bloody one in the case of the desegregation of the University of Mississippi in 1962.

The fuss is apparently going to last forever. Fortunately, it does sometimes fizzle down to a pleasantly inaudible buzz. In fact, the country has enjoyed just such a lull in the years since Southern politicians stopped exhuming John Calhoun's interposition doctrine to resist desegregation. But now the lull is over. The oldest free-floating political issue in U.S. history is flaring up again, fueled by accumulated resentment at that familiar, all-purpose ogre: the huge, cumbersome, inefficient, ever busy Federal Government.

Concern about the workings and directions of the federal system has been climbing sharply and growing more articulate for the past few years, and not only among conservatives. Says one self-styled "committed liberal and unapologetic Democrat," Arizona's Governor Bruce Babbitt: "The federal system is in complete disarray." The Nation al Governors' Association last summer unanimously demanded that Congress and the President create a commission to diagnose the whole governmental apparatus and propose some sorting out of powers. An equally urgent plea for a realignment of powers came last summer from the Advisory C mission on Intergovernmental Relations, whose members include Congressmen, Governors, state legislators, mayors, county officials and private citizens.

Given a sympathetic new President with a keen interest in the subject, this impressive chorus of discontent will probably inspire the appointment of study commissions and the production of all kinds of reports, analyses and perhaps even proposals for change. But what action is apt to occur? Is any important rearrangement of the powers of federal and state governments likely? The prevailing suspicion is voiced by Michigan's Republican Lieutenant Governor James Brickley: not confident that anything substantial can be done."

Such caution is not necessarily cynical. It is common to anyone who keeps an eye on the realities of American government, as contrasted with the sentimental and doctrinaire preachings about it. One reality of political America is the country's capacity and willingness to do whatever is deemed practically or morally essential--while inventing the justifying doctrine as needed. The nation, operating under one Constitution, has permitted racial segregation in one era but outlawed it in another, tolerated corporate trusts in one season but tabooed them in later let the states oversee political parties at one time and taken them under the federal wing in another. One flaw of the usual federal-state debate is that participants often overlook the ad hoc evolution of the U.S. scheme of governance; they imagine that governmental structures take their shape more from the niceties of theory than from the proddings of a society beset with messy problems. As former Governor Orville Free man of Minnesota once said: "The literature of federal-state relationships is replete with myths that need to be demolished.

While the tangled problems of today's governments are far from mythical, the dialogue over realigning powers will predictably be shot through with mythology. Once again, the states rights catch phrase is being heard. But the Constitution assigns rights only to individuals, none to the states, which are granted only residual powers by the Tenth Amendment. It is argued that the Federal Government has left the states bereft of revenues. In fact, state taxing powers are limited only by their own constitutions, and presumably with popular approval.

An ever popular myth is that there once was, and might be again, a nice, neat division of powers and functions among federal, state and local governments. This wistful notion-- known in political science circles as the "layer-cake absolute"-- has never existed in reality but can be tracked back to some of the pro-Constitution positions that James Madison expressed in the Federalist Papers. Said Madison: "The federal Constitution forms a happy combination . . the great and aggregate interests being referred to the national, and the local and particular to the state governments." That created the freedom to quarrel about which interests were great, which aggregate, which particular, which local. Americans have been arguing about combination" has them ever never since, taken but place. the "happy The federal system was messy from the beginning. Literate Americans were sharply aware of the confusion of powers the Constitution would create. States'-righters like Patrick Henry knew that a pre-eminent national Government was proposed Said he: "This Government is not a Virginian, but an American Government." Nationalists like James Wilson clearly declared that the Constitution was to serve not theory but people-"Can we forget for whom we are forming a Government? Is it for men, or for the imaginary beings called states?" Indeed, arguments over the mess the Constitution was about to create grew so strenuous and disconcerting that George Washington later confessed he had been ready to support "any tolerable compromise that was competent to save us from impending ruin.

Most Presidents, regardless of philosophical sentiments, have wound up with similarly practical attitudes. Washington did not let his qualms about state sovereignty keep him from reaching into Pennsylvania to stamp out the Whisky Rebellion.

Thomas Jefferson did not let his earnest convictions about limited power keep him from highhandedly concluding the Louisiana Purchase: only a fool would have let theory stand in the way of such a bargain. Modern Presidents almost realistically approach the White House with fine intentions of curtailing federal power, but a search of history turns up no examples what ever of success.

History itself debunks the myth that the U.S. scheme of government was supposed to evolve toward the fulfillment of some orderly blueprint that existed in the minds of the founders. They were smart, but hardly prophetic enough to foresee the ever fluctuating economic, social, racial and environmental difficulties that have given the governmental machinery its present tangled shape. The reality of those problems, and governments' response to them, debunks the idea that the federal establishment has grown constantly because of the influence of some special cabal of consecrated nationalists. Indeed, governmental growth has been administered by Republicans and Democrats, by conservatives and liberals--even by such a devoted states'-righter as Republican Dwight Eisenhower.

Ike did at least enter office as a states'-righter in 1953. The story of his subsequent practices may be useful to ponder during the coming season of debate. By 1957 Eisenhower was explaining why he had abandoned his stand against federal expansion: "In each instance state inaction or inadequate action ... has forced emergency federal action."

Hoping to strengthen the states, he enlisted the Governors' Conference in setting up the Joint Federal-State Action Committee to conduct precisely the kind of study U.S. Governors have now asked for again almost a quarter of a century later: a reappraisal of government with an eye to realigning powers. The commission's proposals were hardly fundamental. Example:

the U.S. might "consider" abandoning aid to states for the building of sewage-treatment plants. Suddenly Eisenhower had to deal with Governor Orval Faubus of Arkansas, who had activated the National Guard to thwart the execution of a federal court order for the desegregation of Little Rock's Central High School. Ike, who had always refrained from speaking against state resistance to integration, did what he had to do: he federalized the National Guard. So much for personal sentiment; so much for states' rights.

No segment of the nation has ever managed to be entirely faithful to doctrine in the federal-state issue. Over the years, as Professors Alfred Kelly and Winfred Harbison write in The American Constitution, "every economic interest, every geographical section, and almost every state expounded a theory of states' rights to justify its opposition to the prevailing policies of the federal government. Likewise, every interest, section and state supported some federal measures of a strongly nationalistic character."

In the 1980s, happily, the revived argument over federal vs. state powers is not provoked by any issue as dangerous as some of the past. The main provocation is simply--or complexly, perhaps--the workings of the 500 or so grant programs by which the Federal Government aids, stimulates, coerces and sometimes distresses the state and local governments. It may be that the movement for reform can lead to some useful improvements and adjustments in the workings of such programs. It is even conceivable that some rearrangement of functions among the governments may result.

The reform movement, however, is headed for disappointment if it sets out to overhaul the whole system with the intention of dismantling federal powers to increase those of the states. "The hopes of those who would do this," says George Sternlieb, a specialist in public policy at Rutgers University, "are illusions." Mere adjustments in the system will remain difficult as long as Government must respond to the needs of a society always in flux, particularly when ostensibly local problems continually accumulate into national problems.

It has always proved impossible, as a practical matter, to achieve even crude symmetry in the distribution of governmental powers. Perfection is quite out of the question, even as an idea. In reality, it is hard to assemble a dozen people, citizens or theorists, who agree precisely on what American federalism has been or ought to become. The only indisputable thing about the notion is that it persists as part of the American creed--which is exactly why debates over it tend to grow so inflamed.

Indeed, because of the mythic role of the idea of federalism --the power of the mere notion to arouse strong sentiments --every American leader must embrace it in one way or another to serve the necessities of his times. Thus F.D.R. hatched the New Deal under the slogan of "cooperative federalism," and L.B.J. promoted the Great Society as a program of "creative federalism." Was federalism transmogrified in either case?

By now, every realist should see that federalism is a wonderfully loose garment that allows the American system to seem properly dressed no matter what hodgepodge of arrangements the governmental apparatus is pushed into. It may be true that the states sometimes seem, as Vermont's Governor Richard A. Snelling says, "just administrative agents for the Federal Government." That cannot be so awful. The Federal Government, for its part, is nothing but an administrative agent for the people. Most of those people are like George Washington most of the time, willing to settle for any arrangement that is competent to protect them from ruin and assure their right to a decent existence. --By Frank Trippett

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