It does not take a legal scholar to recognize that transferring authority to the federal government undermines the whole constitutional structure designed by our Founders. Few realize that this shift is also destroying local self-government in towns and cities all across America.
Ours is a national government whose only powers are those delegated to it by the people. These powers are enumerated and therefore limited by the Constitution, the Tenth Amendment of which specifies 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." Jefferson called the doctrine of reserved powers "the foundation of the Constitution" and said that "to take a single step beyond the boundaries thus specially drawn . . . is to take possession of a boundless field of power, no longer susceptible of any definition." The resulting federalist system meant that most political activity in America would occur at the local and state level, rather than at the federal level.
By usurping local authority, the federal government undermines the Constitution and destroys self-government
Today, of course, the opposite is true. Over the course of the 20th century, the federal government has vastly grown in size and power. This expansion occurred largely because Congress, with the acquiescence of the Supreme Court, has long acted beyond its authority and outside the limited powers granted to it. The Tenth Amendment has become, in the eyes of the Supreme Court at least, "but a truism."
But my complaints are more practical than theoretical. Never before have local authorities exercised less control over local life. Federal judges run our jails, bus our children, manage our schools, determine the rights of municipal employees, detail the conditions under which art can be displayed on city property, and the list goes on. The weakening of the Tenth Amendment directly and unduly circumscribes my authority, as the mayor of a large American city, to perform my legitimate duties.
Several recent statutes, in my opinion, are in clear violation of the Tenth Amendment. Consider the Americans with Disabilities Act. Although it was passed with good intentions, the ADA mandates compliance with some of the most minutely detailed specifications ever issued by Congress. Under this statute, we are now negotiating with the Justice Department the precise angle of slope on sidewalk ramps we want to construct for the wheelchair-bound. If we don't even control our sidewalks anymore, what exactly is left of local authority? What Congress views as "good deeds" often undermine both the principles of federalism and the value inherent in a government that is close to the voter. By mandating another set of federal laws, the much heralded Motor Voter Act denies states and local authorities discretion in how best to register their own voters. And it all but orders the use of local tax dollars to achieve this federal objective.
Perhaps the most pestiferous offender is the federal judiciary itself. A recent U.S. Supreme Court ruling had the effect of extending the provisions of the Fair Labor Standards Act to state and local governments. This decision raised eyebrows among even the most liberal interpreters of constitutional law. FLSA rates do little more than "protect" our cities' strongest unions by mandating generous overtime rates and work weeks. (I was recently sued by a police captain I had prosecuted for theft back when I was the D.A.; he argued that his punishment entitled him to overtime pay.) The practical effect of this ruling is that nonfederal units of government must negotiate employee compensation and overtime rates in the fashion that Congress demands--however minute the level of detail.
American tax policy is being increasingly decided by unelected federal judges, rather than by elected local representatives. By delving even deeper in state and local matters, federal courts are increasingly mandating nonfederal tax hikes by requiring things like new prison construction or huge property-tax increases to pay for federal social experiments like forced busing. The first time an unelected authority in a faraway place imposed taxation without representation on this country, our forefathers declared independence from England.
Yet, despite our best chance in a generation to right this constitutional wrong, conservatives have focused their collective energies on preventing unfunded mandates. Although unfunded mandates allow Congress to avoid tough decisions, this crusade misses the point. Let's concentrate on reducing the federal government, not making sure its excesses are well funded.
Disregard for the Tenth Amendment endangers the very notion upon which the whole American experiment is based. If the design of the Framers is to survive into the next century -- if local authority is to be preserved in the face of an ever-expanding national government -- the federal government's focus must be readjusted to concentrate on its national role and purpose. Weaving the limited government principles of the Tenth Amendment back into the basic fabric of American politics is a good place to start.