A Piecemeal Federalism

The recent Supreme Court term has ended with a flurry of decisions, some of which can only be characterized, charitably, as troubling.

The recent Supreme Court term has ended with a flurry of decisions, some of which can only be characterized, charitably, as "troubling." Others reaffirmed long-standing constitutional principles or–as in the internet indecency case– applied those principles to new technology.

One of the most frustrating opinions was that which struck down the Brady Bill. Not because the result was wrong; I am personally persuaded that the federalism principle deserves the deference shown by the Court. But it is rather ironic that the Court chose to respect federalism in this case, when it has so routinely ignored that very same principle in so many others.

When I served in Indianapolis’ city government, mandates from the federal government were daily occurrences. The city and state spend millions of our tax dollars each year administering and enforcing mandates from Washington, some of which are far more onerous than the background checks invalidated by the Court last week. Those of us who may agree with the analysis in this particular case can be forgiven for our frustration with the Supreme Court’s inconsistency.

The problem is that government, at all levels, is so much more pervasive than the founders of this country could ever have imagined. When the state is intertwined in virtually every aspect of our lives, as it is, conflicts between the principles of the Constitution and individual rights grow exponentially. It is this reality that has given rise to current political rhetoric (if not reality) about downsizing and privatizing government.

At the same time politicians are preaching "less is more," however, pressures for more regulation continue to grow. Businesses need uniformity in state laws in order to operate efficiently across state lines. Environmentalists argue that problems with acid rain can’t be solved by passing a municipal ordinance. The internet cannot be controlled by a state legislature–or even by Congress. As the world quite literally gets smaller, the ability of state and local governments to deal effectively with such problems declines. Even in law enforcement, generally considered the most local of issues, federal investigators point to the existence of multistate criminal enterprises to justify an increased federal presence.

What America needs is a national conversation about government that goes beyond the sound bites and the reflexive mantras coming from Capitol Hill. What is it that Americans truly want their government to do? What level of government should provide those services? What are the trade-offs? In short, what should federalism mean in the age of multinational polluters and the internet?

We need to answer these questions if we are to stem the inexorable growth of "Big Daddy" in Washington. We need to define the areas where local control must be reasserted, and acknowlege the areas where a national approach makes more sense. Above all, we need a conceptual framework to guide the Courts in the twenty-first century.

What we don’t need is the piecemeal federalism we have.