In this blog I have tried to make an important distinction,
at least important to the overall aims of the blog. The aim has been to introduce you to the
construct, federation theory. In our
common parlance of politics, federalism is associated with a structural
arrangement; that is, the arrangement between federated entities; in our case,
the states, and a central authority that “governs” the relations among the
federated entities, in our case the central or federal government in
Washington, D.C. Each level of
government in our national arrangement claims sovereignty over various areas of
governance. Our constitution identifies
those powers that were delegated to the central government, such as regulating
interstate commerce, and the Constitution
also states quite clearly that those powers not delegated to the central
government, such as educating the young, are reserved by the state government
or the people of the various states. But
of course, such language is always open to interpretation and debates as to
what exactly is a delegated power, what its attributes are, and those discussions
have been an ongoing aspect of our domestic politics ever since the original
1787 document was proposed and ratified.
These debates increased in intensity from time to time; no more so than
the years following the Civil War.
We all know that one of the issues, if not the most important
issue, that pushed our nation to that highly destructive war was slavery. After the war, the victorious side, led by
the radical Republicans, wanted to make sure that the dehumanizing conditions
that characterized the “peculiar institution” were eliminated. In 1866, (the war ended in 1865) the
Republicans who controlled Congress passed and enacted, over a presidential
veto, the Civil Rights bill of that year.
The new law addressed the questions of citizenship, its provisions, and
the rights it guaranteed to the former slaves.
This law predated the eventual proposal and ratification of the
Thirteenth and Fourteenth Amendments which further solidified those guarantees. My limited interest in this posting is the
issue of how the law undermined the sovereignty of the states when it came to
civil rights and how this tension really gets at the distinction this blog has
made between the structural view of federalism and the more political/cultural
view of federalism I have advanced by my introduction of federation theory.
On the one hand, by taking over a reserved power from the
states, the governance over protecting civil rights from the states – a power
which was generally viewed as a reserved power – the concern was that the central
government was seriously threatening the entire federalist arrangement and
setting up a centralized system much like what existed in most European
countries. The fear would be that this
would, in turn, centralize so much power that the structural elements for
despotism would be put in place. One of
our foundational values had been the demand for countervailing powers – such as
in separation of powers among the branches of government and between the
central and state governments.
Centralization would also provide for a removal of meaningful governance
away from the people in their localities and vesting it in far off Washington. There is no mistake; these concerns are
central to federalism and a viable intrusion into state powers would place all
these core values in jeopardy.
But let me provide another federalist concern, one that gets
at the more political/cultural aspects of the equation. Equality is central to federalist
thought. That is, a federal union is one
of equal entities (parties) uniting to accomplish some goal or set of goals. The instrument by which the agreement to join
is stated and defined is a covenant or a compact – a solemn promise – in which
the parties swear their allegiance. Of
course, that would be, for our nation, the US
Constitution. Prior to the Civil War
and legally codified by the Dred Scott decision was the claim that those among
us who either arrived from Africa or descended from those arrivals – blacks –
were not among the people comprising that promise. Therefore, they were not entitled to the
rights and immunities guaranteed by the agreement. Congress, after the war, wanted the legal
instruments, law(s), to end this distinction.
By first enacting the Civil Rights Law of 1866 and later having the
Thirteenth and Fourteenth Amendments to the Constitution
ratified, the aim was this change by legally defining the citizenship status of
African-Americans as those of any other citizen. To me, this is not a step away from
federalism, but an important step toward it.
Not only would this clear up the unjust exclusion of African-Americans
in our political partnership, but it would provide the language that led to
other discriminated groups attaining their full-fledged status as equal
citizens. What groups? To begin with, the post-Civil War amendments
almost immediately were used to begin the discussion of granting women full
citizenship status not only in terms of suffrage, but in terms of property
rights.
But before we go too far in crediting the radical Republicans
of the late 1800s with ushering in a more complete respect for the principles
of federalism, the initial vehemence which characterized their efforts of the
1860s was short-lived and soon they were guilty of back-sliding.
Republican supporters of the
Reconstruction amendments and the civil rights statute acknowledged the
revolutionary changes they had wrought in American federalism by delegating
plenary authority over citizenship and civil rights to the national
government. Before the Civil War, the
states had exercised almost exclusive jurisdiction over fundamental rights. Under the Thirteenth and Fourteenth
Amendments, as Republicans understood them, Congress could conceivably supplant
states in securing civil rights. … Republicans acknowledged the constitutional
revolution in which they were engaged, they carefully avoided carrying this revolution
to its ultimate conclusion of creating a unitary political structure. Republicans did not wish to supplant the states
in providing a foundation for ordinary civil and criminal justice. On the contrary, they consciously preserved
federalism by avoiding unnecessary intrusion on state authority over civil
rights … [restricting] its protection of fundamental rights to situations in
which states and localities failed to protect them.[1]
As the nineteenth century progressed, the national government
became less concerned with the plight of the former slaves and the southerners
instituted strict discriminatory and segregationist policies. Of course, we are all familiar with the
turbulent history which extends to our current times of race relations. But, when we discuss the federalist nature of
our union, we must remember that federalism is not just a structural concept; it
is a whole construct of governance which includes ideas, ideals, and values
concerning our views over citizenship, rights, and how we relate to each
other. I like to think of it, as I have
often stated in this blog, as a grand partnership where ultimately all our
interests are tied together. It is a
perspective of inclusion in a pluralistic land.
[1] Kaczorowski, R. J.
(1992). A revolution in federal
civil rights. In K. L. Hall (Ed.) Major
problems in American constitutional history, Volume I: The colonial era through reconstruction (pp.
584-592). Lexington, MA: D. C. Heath and Company, p. 590. Many of the historical facts of this posting
are derived from this article.
