Originally, even the founding fathers who advocated for a strong federal government believed that the states would retain substantial sovereignty. Madison said, "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." Until very recently, however, the federal government has consistently expanded its powers to the diminution of the powers of the states. It is the natural tendency for any governmental entity to try and amplify its influence; however, their actions at the fringes of their power must make it through the gates of judicial review.
One of the enumerated powers of Congress is to "regulate Commerce with foreign nations, and among the several states, and with the Indian tribes." Although, in its infancy, the Commerce Clause was given a narrow interpretation of "trade," the Supreme Court now interprets "Commerce" more broadly to include production, manufacturing, trade, and even wholly intrastate economic activities which "substantially effect" interstate commerce. The latter meaning is set in precedent, but certainly stretches the original understanding of the term considerably.
The Constitution also empowers Congress "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." The Necessary and Proper Clause has caused political friction since its inception. Thomas Jefferson thought that "Necessary" referred only to those things that were indispensible. Thus, in his mind, the federal government could exercise only its enumerated powers and the means to accomplishing those powers as absolutely necessary. John Adams, on the other hand, believed that this was an untenable position that would result in an impuissant federal government unable to provide for the well-being of its citizens. Adam's view won the day and since McCulloch v. Maryland (1819), the Supreme Court has read "Necessary" to mean "convenient" or "useful" for some political end. The Court, however, does not question the validity of acts of Congress as long as such acts have some plausible explanation or purpose behind the legislation.
The Commerce Clause combined with the Necessary and Proper Clause makes for wide discretion and power on behalf of the federal government and gives reason for continually diminishing the powers reserved for the states. The current Court has said that this combination is not without limit as other Supreme Courts seemed to have implied. In United States v. Lopez, the Court held that the Commerce Clause extended only to economic activities. In the past decade, the Court has also limited the federal expansion by asserting that the 10th Amendment also buts up against the Commerce Clause. There are various opinions about this. The 10th Amendment states, "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." On one end of the spectrum, there are people that hold this Amendment to be only a truism. They believe that the states only have the leftover powers that the federal government leaves behind, which could be nothing. Others say no, no, the states obviously have some essential function in the Constitution and the federal government cannot grow to the point that it infringes on that essential constitutional role. On the other extreme end of the spectrum are those that believe the federal government should be severely restricted to its enumerated powers alone.
I believe American federalism is an exalted principle of our miraculous Constitution. While I am a firm believer in the free market, I am not totally opposed to federal involvement and regulation. But, Congress too often overreacts to public tragedies and enact regulations to please the public and add ephemeral popular causes to their curriculum vitae. The result is overregulation and legislation that is hastily pushed through. The United States currently has over 240 regulatory agencies. The Federal Register (containing executive agencies regulations) is nearly 83,000 pages long (Obama's administration has added around 15,000 pages so far). Whereas before there was only a handful of federal crimes and the states were left to deal with crime, now there are over 4,000 federal crimes, but no one knows exactly how many there are because of the way they are cross-referenced with regulations. Too many federal laws and regulations are either unnecessary or detrimental; too many are overlapping with the each other or with state regulations that are doing a fine enough job.
Legislation should be approached carefully and deliberately. Here are a few things legislatures should consider before enacting any new law or regulation scheme:
(1) How much would the subject of legislation or regulation benefit from economies of scale. Sometimes, it is more effective to do something once on a grand scale than to do it 50 times. For example, the NASA space program would likely be impossible if every state pursued it on their own. But, together, much more is possible.
(2) Is the issue of great, lasting, and communal importance or is it a matter of local needs, preferences, and conditions? Building codes and speed limits, for example, have little or no effect on the nation as a whole and are better established by local governments.
(3) Is there a collective-action problem resulting in a race to the bottom when all the states are left on their own to devise policy and solutions? Or, is there incentive to race to the top? Does competitiveness and free market lead to positive outcomes or does it lead to free riders and states trying to undercut each other?
(4) Does allowing states to legislate and regulate in a particular area cause negative externalities? If Illinois decides to engage in manufacturing that severely pollutes the Mississippi River, at least five other states are going to suffer.
(5) How sure are we of a regulation or legislative scheme's effectiveness? Has it been proven in the laboratories of the states? States experiment with new policies that sometimes work and are adopted by other states. For example, medical marijuana in California, a Unicameral legislature in Nebraska, or a 4-day state government business week in Utah are all being watched by other states to see how things work out.
(6) Are maintenance, monitoring, and enforcement costs cheaper at the state or national level?
(7) Is legislation and regulation the most effective way to deal with a problem or would tort law be more cost-effective? So many expensive regulations are unnecessary because Tort Law (or Contract or Property) has proven itself more cost-effective and equally as efficient.
(8) Is there a restraint on Americans' individual agency and liberty? Will Americans have less choices because of a new regulation or law? If so, is a (often marginal) increase in security worth the loss of freedom? Remember, "Give me liberty or give me death?" It seems Americans are too easily lulled into saying, "Here's some more of my liberty, can you make me more secure (even if the policy is more like a sugar pill)?
