Constitution day and federalism

Constitution Day is really tomorrow, and I already said most of what I have to say about it on Tuesday here at F&V, as well as on KPBS radio on Wednesday.

Nonetheless, while I mentioned in both settings the irony of the way in which Constitution Day was established—by slipping a mandate on schools into a large appropriations bill—I did not entertain the further question of whether the very act of making this mandate was itself contradictory to the Constitution. This raises questions about what is federalism.

The Volokh Conspiracy today posts an announcement of a talk at George Mason University:

Join Foundation Professor of Law Ronald Rotunda and Patrick Henry Professor of Law Nelson Lund for as they examine whether it is constitutional for Congress to use its spending power to reach down into the curriculum and culture of every school in the country and dictate what shall be taught, celebrated, or memorialized.

(I have to say that I have long been intrigued by the fact that a Professor Rotunda studies laws passed at the United States Capitol.)

Steven Taylor similarly notes how Congressional mandates attached to federal money provided to states “fundamentally alters the overall power of Congress vis-à-vis the states.” Thus with the system working this way…

the pure federalism of the Constitution itself, as delineated by Article I, Section 8 and the Tenth Amendment is not fully in operation.

I’ve never seen this as a problem. “Pure federalism” is the existence of separate sovereign levels of authority, an ingenious idea that the founding fathers committed to parchment on this day (well, more or less) 218 years ago. But nowhere does this federal constitution require that Congress give money to the states without strings, or that it give money to the states at all.

As a payer of federal taxes, I don’t want my tax money sent to states without strings (and here I am talking about far more serious matters of national policy than Constitution Day events). I don’t want to be Argentina or any of several other wholly dysfunctional federations in which federally collected taxes are transferred to state or provincial governments that have no acountability for the way they use the money, and no incentive to raise their own revenue to suppor their own spending habits.

If the states don’t like the strings, they have the sovereign right, under the federal form of government, to refuse the money and either forego the services it would pay for, or raise their own taxes to provide the services as they see fit.

As Steven put it, regarding the increased fiscal powers of the central government over time:

we are doing all of this en masse because we might get our federal money taken away.

Exactly. States can make policy on their own and raise their own revenues for it, or they can take federal money. If they choose the latter, Congress has every right to impose mandates on how they use it, in support of national policy, as conceived by national elected officials, accountable to their own constituencies (which happen to be located back within the various states). That is the essence—and purity—of federalism.

12 thoughts on “Constitution day and federalism

  1. It isn’t the “strings” that violates, in my mind, the principle of federalism; it is the assertion of policy power over objects not delineated in the Constitution as belonging to the central government via the use of money that I find violative.

    Education is not an expressed nor implied policy realm for the central government (whether it should be or not is a different issue) and the only way it becomes one is via the budget.

    I find this problematic, although I will grant I am in the minority.

    Even setting aside that issue, and treating it as established process, the idea that on a whim a clever Senator can sneak in a provision that links a specific behavior with federal funds strikes me as problematic for a host of reasons.


  2. And as to the purity of federalism, I would argue that a fundamental element of federalism is the delineation of policy powers between the two levels, i.e., that there are clear areas of policy that belong to the states and clear areas which belong to the central government.

    In the areas in the which the central government has clear jurisdiction, the “strings” notion attaches, no problem. But when the central government is able to expand its set of policy areas by no other reason than the fact that it has large sums of money to spend, then I would argue that the “purity” of federalism has been compromised.


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  5. Pingback: A Knight’s Blog » Happy Constitution Day — Again

  6. True, education is not an express or implied realm for the federal government. But I still think the bigger point is that states are free not to accept federal money, and thus fund their education programs on their own. Then they are not subject to these sorts of mandates.

    I completely agree that the attaching of riders that do not get a debate on the floor (or sometimes even in committee) is a troubling process, because of the way it obscures accountability for what Congress does. I think that is a separate issue from the “federalism” question at play in the core of this multi-blog discussion.


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  8. Pingback: PoliBlog: Politics is the Master Science

  9. > ” I have long been intrigued by the fact that a Professor Rotunda studies laws passed at the United States Capitol”

    We Rotundi are a peaceful tribe, albeit an extended one.


  10. Only the distaff side.

    OTOH, if Prof Ronald’s surname were Russian not Italian (well, it could be), then the plural would be Rotundi.


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