Nonetheless, while I mentioned in both settings the irony of the way in which Constitution Day was establishedâ€”by slipping a mandate on schools into a large appropriations billâ€”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-Ã -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 essenceâ€”and purityâ€”of federalism.