Although the word federalism does not appear in the Constitution, it is one of the most important and innovative concepts in it.
The states of the United States of America created the national government in 1789. The states had been in existence as independent, sovereign colonies for many, many years. Only Georgia (1732) among the original thirteen colonies was not established in the 1600s.
The Declaration of Independence (1776) states,
We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States.
This status continued when the states adopted the Articles of Confederation (1781):
Article II. Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.
When the Constitution was adopted in 1789, a federal system of government was established. Federalism is the division of power between the national and state governments. Articles I through III of the Constitution delegate certain powers to the three branches of the national government. The Tenth Amendment reserves to the states those powers not delegated to the national government: “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.”
As future president James Madison explained in Federalist No. 45,
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. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.
The Constitution refers to the United States in the plural in Article III, Section 3, Paragraph 1: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”
Since as far back as the New Deal, liberals and Progressives have been skeptical of federalism and supportive of increasing the power of the federal government. Although some argue that this attitude seems to have all changed with the presidency of Donald Trump, there is one issue where liberals and Progressives have inadvertently been proponents of federalism and States’ Rights for several years: marijuana legalization.
The federal government classifies marijuana as a Schedule I controlled substance under the Controlled Substances Act (21 U.S.C. 801). As a Schedule I drug, marijuana is said to have “a high potential for abuse,” “no currently accepted medical use in treatment in the United States,” and “a lack of accepted safety for use of the drug under medical supervision.” The Supreme Court has ruled that the federal government has the authority to prohibit marijuana possession and use for any and all purposes.
Yet, in spite of federal law, in 1996, California became the first state to legalize marijuana for medical use. Thirty-three states have now legalized the medical use of marijuana. In 2012, Colorado and Washington both legalized marijuana for recreational use. Ten states have now legalized the recreational use of marijuana. Liberals and Progressives have generally supported these state actions that are contrary to federal law.
The U.S. House of Representatives recently passed the Secure And Fair Enforcement Banking Act of 2019 (H.R.1595). The bill prohibits a federal banking regulator from
(1) terminating or limiting the deposit insurance or share insurance of a depository institution solely because the institution provides financial services to a legitimate marijuana-related business;
(2) prohibiting or otherwise discouraging a depository institution from offering financial services to such a business;
(3) recommending, incentivizing, or encouraging a depository institution not to offer financial services to an account holder solely because the account holder is affiliated with such a business;
(4) taking any adverse or corrective supervisory action on a loan made to a person solely because the person either owns such a business or owns real estate or equipment leased or sold to such a business; or
(5) penalizing a depository institution for engaging in a financial service for such a business.
So basically, the bill would allow businesses selling marijuana in compliance with state law to participate in the banking system instead of having to be an all-cash business. The bill passed by a vote of 321-103. Every Democrat but one (Terri Sewell of Alabama) voted for the bill. A companion bill (S.1200) has already been introduced in the Senate.
But not so fast.
Have Democrats all become federalists or are they just proponents of “fair-weather federalism” who only selectively support limits on federal power?
The U.S. House of Representatives also recently passed the Preventing Animal Cruelty and Torture (PACT) Act (H.R.724). The bill “revises and expands criminal provisions with respect to animal crushing” as found in the Animal Crush Video Prohibition Act of 2010 (H.R.5566, PL 111–294). The PACT Act “retains existing criminal offenses that prohibit knowingly creating or distributing an animal crush video using interstate commerce” but “adds a new provision to criminalize an intentional act of animal crushing.” Violators are “subject to criminal penalties — a fine, a prison term of up to seven years, or both.” The bill was passed by voice vote, which means it had unanimous or near-unanimous support in the Democrat-controlled House.
According to the PACT Act “Fact Sheet,”
The PACT Act would make it a federal crime for “any person to intentionally engage in animal crushing if the animals or animal crushing is in, substantially affects, or uses a means or facility of, interstate or foreign commerce.”
The PACT Act would not preempt or interfere with local animal cruelty laws or enforcement. The bill would be a federal overlay, exactly like the federal animal fighting law.
The president of the Humane Society Legislative Fund, Sara Amundson, applauded the passage of the bill. She said in a statement,
Over the course of 30 years in animal protection, I have encountered terrible animal cruelties, but acts of intentional torture are the most disturbing because they demonstrate how some people treat the most vulnerable in our society. These malicious acts deserve federal scrutiny and action. Federal prosecutors and law enforcement officials will finally have the tools they need to bring those responsible for cruelty to animals to justice.
Animal cruelty is a terrible thing, and nearly every state and county in America has laws against it. But if the federal government has the authority to punish Americans for being cruel to animals, then it has the authority to do anything.
In the end, there is no difference between federal laws that prohibit marijuana and federal laws that punish animal cruelty. Both are an assault on the Constitution and our federal system of government. If there are to be any laws against marijuana use or animal cruelty, then they must exist only on the state or local level.
Democrats don’t believe in federalism any more than Republicans do. Like Republicans, they embrace federalism only when it suits their political agenda.
