Changing Lanes, Part 4: The New Federalism

This is part 4 of a 5-part article.

Read Part 1 Here
Read Part 2 Here
Read Part 3 Here

But there is hope.

Some of the institutional safeguards compromised away, such as federalism and the Tenth Amendment, are making a comeback in modern Supreme Court jurisprudence.

Supreme Court decisions over the last decade have again invoked the previously-dormant Tenth Amendment. Some scholars argue that the “Federalism Revolution” has begun.

As the Supreme Court restores these safeguards, it will have less need to police individual rights, at least theoretically.

This will free the Court to use an approach to constitutional interpretation that again relies on state constitutions and legislation to protect individual rights.

However, while a federalism trend is definitely apparent, the decisions thus far lack any real strength and many scholars agree that a return to the traditional state-sovereignty form of federalism is not likely.

This leaves many proponents of federalism feeling doubtful and helpless.

I propose that instead of pushing an unlikely return to state-sovereignty federalism or giving up altogether, we should advocate a new form of federalism.

We can use the momentum many jurists and scholars are creating for state-sovereignty federalism and channel it to a form that has a good chance of success and that will create many of the same benefits to society as the old form.

This new form is “mediating-entity federalism.”

While we may not be successful at re-empowering states, we have a great opportunity to re-empower families, churches, schools, communities, and neighborhoods.

For instance:

1. We can remove public school legislation like “No Child Left Behind” and let parents and teachers re-forge a relationship that requires give and take and demands excellence on both sides.
2. We can say that parents truly have the ultimate say in a child’s education — and show that we mean it through well drafted school voucher programs or tuition tax credits.
3. We can allow communities to regulate societal forces they may deem destructive such as pornography, abortion clinics, tobacco, or alcohol instead of being subject to the moral or political whims of an individual or minority view.

By re-empowering mediating entities, we will counteract the trend towards individualism.

Tocqueville says that all democratic societies where equality is valued have a tendency towards destructive individualism.

But he explains how Americans of the 18th and 19th centuries combated “the tendency of equality [in democracies] to keep men asunder” by “free institutions.”

By free institutions, he means both government and civil associations, and he explains why they bring unity:

“The political associations that exist in the Unites States are only a single feature in the midst of the immense assemblage of associations in that country. Americans of all ages, all conditions, and all dispositions constantly form associations.

“They have not only commercial manufacturing companies, in which all take part, but associations of a thousand other kinds, religious, moral, serious, futile, general or restricted, enormous or diminutive. The Americans make associations to give entertainments, to found seminaries, to build inns, to construct churches, to diffuse books, to send missionaries to the antipodes; in this manner they found hospitals, prisons, and schools.”

Why are these associations important? Because through them,

“[f]eelings and opinions are recruited, the heart is enlarged, and the human mind is developed. . . . I have shown that these influences are almost null in democratic countries; they must therefore be artificially created, and this can only be accomplished by associations.”

After all, societal unity is created “only by the reciprocal influence of men upon one another.”

These associations bring men together, bring men out of their individualism and give them incentive to combine with others in various contexts, thereby strengthening the fabric of society.

If mediating entities are empowered, national unity will increase. This New Federalism is the best legal remedy for Supreme Court individualism.

To be continued…

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James C. Ure, Esquire is a mentor of Constitutional Case Law at George Wythe University and the owner and headmaster of Williamsburg Academy, an accredited, private, online high school with an emphasis in leadership, classical works and the outdoors.

James received his B.A. in English from Brigham Young University and graduated magna cum laude from South Texas College of Law. In law school, James served as President of the Federalist Society, the J. Reuben Clark Law Society and hosted speeches or debates with prominent judges and professors from around the country. He also served on the South Texas Law Review, which published an article of his on the structure and powers of the U.S. Constitution.

He has been a small business owner, clerked for a Texas state court judge and a law firm, and served as an intern in the Utah House of Representatives for the majority whip. He is married to the former Angela Stott. They have three children and reside in Cedar City, Utah.