Federalism and the great and powerful Oz maneuver (column)
June 1, 2015
"If you make citizens of this country agree to become the subjects of one great consolidated empire of America, your government will not have sufficient energy to keep them together. Such a government is incompatible with the genius of republicanism. There will be no checks, no real balances in this government." — Patrick Henry, 1787
For all its genius, we should remember that the U.S. Constitution had is critics and detractors, including Virginia's great Revolutionary firebrand. While John Jay, James Madison and Alexander Hamilton argued that a new federal government would benefit the nation as a whole while protecting individual liberties, preserving the independent power of the states and curbing "factions" (what they called political parties), others were not so enthusiastic. As a group, they were called "anti-Federalists," and, perhaps, the time has come to re-consider their arguments.
While the first 100 years of constitutional federalism passed without serious growth in Washington's reach, by our sesquicentennial, is was clear that ascendency had passed to those who saw the future in a strong, centralized, national government presiding over an agglomeration of powerless and irrelevant states. The tool of preference in this process — and in all that followed — was regulation and creation of Federal bureaucracies. This was unforeseen because neither the most rabid anti-Federalist nor the loudest proponent of the new constitution anticipated anything like the rise of the nanny state, with its fingers in everyone's pies, its eyes and ears in everyone's business and its wallet fattened by income taxes. This situation would have been as alien to James Madison and Patrick Henry, alike, as the operations of China's Politbureau.
A recent example of Federal aggrandizement through regulation is the Environmental Protection Agency's "revisions" of the Federal Clean Water Act. The EPA, which recently declared toxic a gas necessary for every green plant on the planet, was frustrated by a U.S. Supreme Court decision nearly a decade ago, the upshot of which was that actions under the FCWA were questionable due to its ambiguous definition of "Navigable waterways" and "National Waters of the U.S." So, the agency set to work and — lo and behold — we have a precise definition of "national waters": pretty much everything that's wet. Except maybe, irrigation ditches, save when they are "adjacent to" streams, including tributaries of "navigable waters" formerly covered. "Adjacent to" is defined as being within 4,000 feet or when both irrigation ditch and waterway have "substantially the same origin and chemistry." At least they didn't rely totally on chemical composition, since "H2O" fills everything from prairie potholes in North Dakota and alpine bogs in Idaho's Sawtooth Mountains. But, since those may have separate protections as "environmentally sensitive areas," perhaps no great need was seen.
The Feds are calling the shots, not the people you can call or visit their offices and actually see.
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Presto! The Federal government asserts authority over how a farmer drains his field, how a streambed that threatens structures may be modified and how wetlands unconnected to any waterway may be developed. State laws be damned – or superseded by the Supremacy Clause of the constitution. Either way, the Feds are calling the shots, not the people you can call or visit their offices and actually see. Government has made itself more aloof and unreachable; call it the "Great-and-Powerful-Oz Maneuver."
If you think environment is the only place this is happening, you haven't been paying attention. What about "Common Core," that darling of educrats and politicians whose rhetoric is stronger than their analytical skills? Is it really in the national interest that "Anthropogenic Global Warming" be beat into children to such an extent that, by grade 12, it better be an article of faith if one expects to graduate anywhere? Or that "social justice" be a fundamental principle, this nation having been founded on crimes and having been dominated for over two centuries by the wealthy? For those having trouble understanding why the latter is problematic, substitute an ethnic group for "the rich." If you try Josef Goebbels' favorite, and it doesn't produce queasiness … Sorry, there's something wrong with you.
Or the local police: Thanks to trumped-up racial hysteria, the Federal government has essentially taken over the police departments of Ferguson, Missouri; Baltimore, Maryland; and Cleveland, Ohio. More will follow as the Feds push their mandates, financed through our tax dollars, down onto the state and local governments which are increasingly the last and failing bulwark against a burgeoning centralized and bureaucratic national government with plans for everyone.
Unless immediate and dramatic steps are taken against the regulatory state – say, a drastic downsizing and restatement of mission for the EPA, the Department of Education, the National Labor Relations Board and a myriad of other instruments of Federal power, we will soon arrive at that homogeneous and centralized state both Federalists and their foes feared. Perhaps, at least, the power of "factions" will wane.
Morgan Liddick writes a weekly column for the Summit Daily.
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