Under the Gold Dome

Introduction

The Importance of the State Legislature

The founding documents of this country recognized the states as the building blocks of the nation. Under the Articles of Confederation of 1777, the states retained their “sovereignty, freedom and independence.” Consistent with that genesis, the Constitution of 1787 accorded important powers to the state legislatures, vesting them with the right to determine the manner of appointing presidential electors and the power to choose the United States senators from their state. Actually, until 1832, a number of state legislatures appointed the presidential electors without a popular vote. And the Bill of Rights, in the Tenth Amendment, reserved to the states and to the people those powers not delegated to the United States by the Constitution, or prohibited by it. Thus, originally, the powers delegated to the national government were understood to be limited; the towns and the states constituted the main institutions of America’s government.

As the country got under way, however, political tension centered on the creation of a national government. Although the Constitution expressed a plan of government, the Founding Fathers differed over how to create that government and what form it would take. A first important step was the national government, under the leadership of Alexander Hamilton, assuming the states’ Revolutionary War debts and funding them with United States bonds. However, in the late 1700’s and early 1800’s fierce political battles waged between Federalists, led by Hamilton, and the Republicans, led by Thomas Jefferson and James Madison, over the powers of the President versus those of Congress, and the reach of national power over the states.

During the early nineteenth century, landmark decisions of the Supreme Court developed the beginnings of national power over the states, for example by prohibiting the states from interfering with interstate commerce (Gibbons v. Ogden), and from taxing a nationally chartered bank (McCullough v. Maryland). McCullough also established the doctrine of implied powers necessary to implement the expressed powers vested by the Constitution in Congress. But throughout the nineteenth century and going into the twentieth century, the states still retained and exercised enormous power to govern within their borders.

That power began to diminish in the 1930s under President Franklin D. Roosevelt with the emergence of the New Deal, which initiated the trend toward Washington dominating the states. The Depression demanded exercise of national authority to deal with the enormous economic and social problems besetting the nation. During World War II and into the 1960s, under Presidents John F. Kennedy and Lyndon B. Johnson, this trend of dominance continued, diminishing the powers of state governments.

Then, gradually, a reaction to national supremacy set in. Particularly under President Ronald Reagan in the 1980s, the concept of New Federalism developed. It asserted that the national government had overextended itself and that the states should play a more important role.

The Supreme Court had long sanctioned the increase in national power by its expansive interpretation of the commerce clause of the Constitution. In 1995, for the first time in almost sixty years, it limited the authority of Congress to regulate under that clause; in United States v. Lopez, it struck down a Congressional statute prohibiting the possession of guns in a school zone as being beyond the commerce power. This decision was hailed as marking “the first step in the revitalization of constitutional protection for federalism.” In the 2000 case of United States v. Morrison, the Court invalidated the civil rights provision of the Violence against Women Act on the ground the provision exceeded Congress’s power to regulate under the commerce clause. In that case and in others the Court invoked the Eleventh Amendment and the doctrine of sovereign immunity, to protect states from liability in private suits for their failure to comply with federal statutes. These cases led constitutional law professor John T. Noonan Jr. to conclude that “[t]he current court has thrown itself on the side of the many states, seeking to sustain a structured role for them, to bolster their status and to assure a limited autonomy.”

This momentum stalled in 2005, however, when in Gonzales v. Raich the Supreme Court upheld the power of Congress under the interstate commerce clause to ban and prosecute the possession and use of marijuana for medical purposes, even in states that permitted it and even when it is homegrown for personal use. This decision has led Professor Thomas W. Merrill in a law review article to question whether the federalism revolution ever was real. Professor Mark Tushnet, in A Court Divided: The Rehnquist Court and the Future of Constitutional Law, said: “The Rehnquist court did revolutionize federal doctrine. What it did not do was revolutionize the actual scope of federal power.”

In fact, more effective than Supreme Court decisions are administrative agencies’ appropriating power from the states by regulations and interpretations of federal laws. In its fuel economy standards for light trucks, for example, the Department of Transportation inserted a statement that the federal government had exclusive authority in setting fuel economy standards, thus threatening the emission limits set by California and other states. Similarly, the Food and Drug Administration has issued labeling standards mandating that the states and the courts cannot require the labeling of any nutritional information that would exceed FDA requirements.

Nevertheless, today “power to the states” sounds a clarion call throughout the country. With the majority party in Congress having only a slim margin, the Senate hamstrung by the sixty-vote rule to break a filibuster, the national legislature often manipulated by special interests, and until 2009 a Republican Administration bound to the id