Santorum, Birth Control and Federalism

This past week in Arizona, the remaining contenders for the Republican presidential nomination gathered for the last debate before the Super Tuesday primaries. Not unexpectedly, considering the moderators of these debates tend to be members of the left-leaning national media, the questions directed at the Republican candidates were often premised on a liberal worldview. Maybe nowhere was that more obvious than in the media feeding frenzy surrounding the beliefs of former Sen. Rick Santorum regarding birth control.

As a member of the Catholic Church, Santorum adheres to the belief that abortion and even the use of birth control are immoral. The media has seized upon this as proof that, were Santorum to win the presidency, he would impose a theocracy upon America, the implication being that he would use government to block abortion and birth control to those that desire it. Mitt Romney, in a previous debate, was perplexed by the question of whether states have the right to ban birth control, correctly noting that no state was even considering such a move, so why bring it up?

While several of the candidates touched on it, this was a golden opportunity to discuss a subject of immense importance and one that too few Americans could define, much less elaborate upon…the doctrine of federalism.

Federalism is the basis for the brilliant solution the Founding Fathers developed to resolve the problems with the Articles of Confederation (which made the national government too weak), and the dangers inherent in a national government with too much power. Federalism established a separation of powers, which allowed the national/federal government to have supremacy over certain areas (national defense, immigration, establishing currency, resolving disputes between the states, foreign relations, etc.), with all other powers being reserved to the states and the people. Article I, Section 8 of the Constitution establishes a narrowly defined list of powers to the federal government, and the Tenth Amendment clarifies and codifies the rule that the federal government will be limited to only those powers.

Almost before the ink on the Constitution was dry, men (and later women) who sought more power and less accountability began to try and undermine the doctrine of federalism. President Obama has whined incessantly about how frustrating it is that he has to work with Congress, and especially those hated Republicans, instead of being able to issue edicts and have them obeyed. Another Democrat, Franklin Delano Roosevelt, likewise abhorred the shackles placed upon his grand designs by the constitutional separation of powers, and sought to get his way by packing the Supreme Court with justices agreeable to his agenda. That effort to pack the court was unsuccessful, but in the aftermath the court became more pliant anyway.

The death knell for federalism was sounded with the passage of the Seventeenth Amendment, passed by Congress and ratified by the states in 1913 (just over two months after the passage of that other liberty-draining amendment, the 16th, which created the previously banned income tax). Like federalism itself, few Americans can tell you what the 17th Amendment says, why it was so detrimental in the dissolution of federalism, and why it has led to a massive, tyrannical federal government.

The 17th Amendment changed the election of U.S. Senators from election by the state legislatures to a popular vote of the people of that state. That sounds innocuous enough, right? Why would it be a bad thing to have Senators elected more democratically, by the voters? The answer is, because in doing so it ended representation for the states within the national Congress. When Senators were elected by the state legislatures, they knew that they had to keep the legislators happy in order to retain their position. How did they do that? By making sure that the more volatile House of Representatives, when tempted to expand federal power at the expense of the states, would be tempered by the Senate. Since Senators would not likely weaken the powers of the very legislatures that gave them their jobs, it kept a delicate balance between the powers of the states and the federal government. The federal government could not increase its power unless the power of the states was weakened, so the threshold to usurp from state powers was high.

In the aftermath of the passage of the 17th Amendment, there has been an explosion in the size and scope of the federal government. It is nearly impossible to think of a single aspect of your life for which there is not a federal regulation. There are literally hundreds of thousands of pages of federal regulations, with hundreds of thousands of power hungry government bureaucrats all too eager to exercise that power over unsuspecting citizens. From light bulbs to school lunches to salt content in our food to MPG standards for cars to the height of a handrail in a restroom, the federal government dictates how we will live. The Founders would be appalled at the monster that has mutated from their creation.

Thus, Rick Santorum is correct in saying that the states are within their constitutional power to limit or ban birth control, a position that was the law of the land until the 1960’s. It is critical to note, however, that acknowledging that states have the POWER to do something does not mean that a state WILL do something. If this decision were returned to the states, does anyone really believe that a single state would outlaw contraception? Does anyone really believe that, even in the most conservative states, matters such as rape, incest, or danger to the life of the mother would not be a strong consideration in abortion law? Any laws so constructed would have to go through the state legislatures and be signed by governors, all of whom have to answer to the voters every two to four years.

Yet everywhere we turn, we are told that this thing or that thing is just too important to be left to the states to resolve, as if the geniuses in the federal government have a spectacular record of success when it comes to fixing problems. In fact, a strong case can be made that many of the largest problems we face today stem from the federal government imposing a one-size-fits all solution on every citizen in America.

That is how we end up with a federal Department of Education that spends over $100 billion per year, yet has achieved no improvement in academic progress. Reading and math scores have remained stagnant despite the massive spending outlays, and science scores have gone down. That is how we end up spending trillions of dollars in the War on Poverty, with nothing to show for it but more government dependency, broken homes, and more people on food stamps under this president than any president in history.

In Federalist No. 9, Alexander Hamilton wrote, “The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government.”

The Founders understood well that it is the nature of men in power to expand, protect and abuse that power. Today, everywhere we look across the national landscape, we see the wreckage left in the wake of having abandoned the doctrine of federalism. If we do not, as a people, begin study the writings of the Founders and the brilliant documents they produced to protect liberty, then we will soon enough witness the crumbling of yet another empire, and with it the “last, best hope of mankind.”


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