MULLIGAN: In defense of a robust federalism

Madeline Gray—North State Journal
The North Carolina state flag flies above the Old State Capitol building on Monday

From its conception, federalism has been a central American feature. Our Founders wanted a system of decentralization and were careful to disperse power, not only between the three branches of the federal government, but also between the states and central government. The phrase “checks and balances” does not only refer to the checks the legislative, executive, and judicial branches have on one another, it also refers to the relationship the states have with the central government. The greatest guardian of liberty should be the state’s check on federal overreach. If the central government were to act outside their innumerate functions, it was the state’s job to call foul. To ignore a state’s right to nullify or defy federal overreach is to ignore our federalist system altogether.

Federalism is also reflected in the construction of our bicameral legislature. The House was designed to reflect the will of the people with representation based on population, while the Senate was to reflect the will of the state. It wasn’t until the passage of the 17th Amendment that Senators were chosen by direct popular vote. The 17th Amendment undermined the original purpose of the Senate. Senators were originally held accountable by their state legislatures. If they did not defend states’ rights, they were replaced.

On April 11, 2017, State Representatives Pittman, Speciale, and Ford introduced the “Uphold Historical Marriage Act” (HB 780), which states, “An act to affirm that Section 6 of Article XIV of the North Carolina Constitution is the law of the state. Whereas, the 10th Amendment to the United States Constitution states that ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people’; and Whereas, the enumerated powers of the federal government, as outlined in the United States Constitution, do not include the authority or power to establish laws concerning marriage.”The purpose of HB 780 was to defy the Supreme Court’s ruling in Obergefell v. Hodges, and articulate the supremacy of the State over an issue not in Article I Sec. 8 of the US Constitution. Furthermore, this bill would recognize the state, not the Supreme Court as the final arbiter of the Constitution. Throughout history, SCOTUS has played the antagonist in the usurpation of rights the states and the people have reserved for themselves.

The history surrounding federalism is an important part of not only our past but present and future. H.B. 780 reveals two things about the Republicans in the General Assembly. First, a lack of courage. House Speaker Tim Moore said the bill would be dead on arrival because of the bill’s “strong constitutional concerns.” As a Representative of the state and people of North Carolina, his job is to engage in “strong constitutional concerns.” And when the federal government tramples on the rights reserved to the state, his job is to say “no.” Rep. Pittman’s legislation is the exact remedy our Founders had in mind in the event of federal overreach.Second, the proposal of H.B. 780 exposes the hypocrisy of the conservative delegation at the state level. How many other functions have the federal government usurped from the states? H.B. 780 could be used as a template for so many other issues. Issues which according to the Constitution, fall under the preview of the state. Abortion, healthcare, education, EPA, the list goes on and on.

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. Did James Madison, “The Father of the Constitution” get it wrong? Or have we become complacent in protecting the rights reserved to the states and the people?

Aimee Mulligan is the executive producer at Red Wolf Broadcasting in Raleigh.