Federal v State powers

The Founding Fathers spent a lot of time debating how Federal and State powers should be divided up.  Originally, most power was left to the states, with very little given to the national government.  This had so many problems that they got together again in a Constitutional Convention and created the balance that we current follow (with some adjustments along the way in Constitutional Amendments and Supreme Court interpretations).  I am not sure most people realize how important this distinction is.

I’ll start with a very controversial topic to illustrate.  Some people think abortion should be legal.  Some people think it should be banned.  I am not going to get into that debate exactly.  Instead, I will ask who should make the law, the federal government or the state governments?  There can only be one answer to that question.  Obviously, you can’t have the feds making it legal and a state or two making it illegal (or vice versa).  So there are actually four possible opinions.  I believe it should be legal and the law should be at the federal level.  I believe it should be legal and the law should be at the state level.  I believe it should be illegal and the law should be at the federal level.  I believe it should be illegal and the law should be at the state level.  One of these dichotomies is an ethical/moral decision about abortion and the other one is about what the Constitution says about federal and state powers.  So if someone is pro-choice, and the Constitution puts this power in the states, they should support each state making it legal and the feds staying out of the decision.   Same thing if someone is pro-life. 

I used abortion as my first example to get your attention, but this really comes up all the time.  Right now there is a case where Rhode Island doesn’t believe in the death penalty but the federal government does.  So the governor is refusing extradition of a murderer to the federal authorities.  The way this case will be decided is not whether the death penalty is right or wrong.  It is whether the decision should be made at the state level or at the federal level.

We see the same thing in Romneycare v Obamacare.  Is it possible for the two systems to be very similar and have one be right and one be wrong (as Romney claims)?  Yes.  If the Constitution says that this kind of law should be made at the state level, then Romney may be right that is was OK for Massachusetts to pass his version but it is not OK for Congress to pass one nationally.  It’s not about whether the plan is good or not, it’s at what level the law should be made. 

In general, I like when powers are left at the state level because it allows different states to try different things and whichever one works best can be copied by all the other states.  But sometimes it is just not efficient to have different laws in different states, such as interstate commerce or defense or monetary policy.   And sometimes it involves a basic value that should be decided nationally, such as civil rights. But my point today is that we sometimes forget that this is a critical part of the question, and in fact is the part that has to be asked first.