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Federalism is a cornerstone of American freedom. It is also on life-support. For generations, it has been denigrated by “respectable” academia, educators, judges, media, and intelligentsia as a quaint vestige of the founding era. It is tolerated to foster, in the terms of Justice Louis Brandeis, the laboratories of democracy; but once an “ideal” policy is found, the federal government should impose it. It is no state secret that much of the political class, in a very bipartisan way, has embraced this viewpoint.

That is, until a few days ago. In a recent COVID-19 briefing, the issue arose of who had the authority to lift the myriad shelter at home orders in effect across the nation. President Donald Trump announced that he is the “ultimate authority,” he “calls the shots,” that states and localities “can’t do anything without the approval of the president of the United States,” and that his “authority is total and that’s the way it’s got to be.”

In a surprising twist, Democrat governors, Republican congressmen and senators, media pundits, and legal academics united in a chorus challenging the president’s statements.  For example, Democrat New York Gov. Andrew Cuomo argued, “It’s not legal. It's a total abrogation of the Constitution —10th Amendment specifically says power to the states.” To his credit, the president backpedaled and is now respecting the authority of the states.  

After decades of atrophy and disdain directed at the 10th Amendment, the tables quickly turned. We are all federalists now.

Since the media and many educators have ignored the 10th Amendment for decades, that many citizens might at best have a fuzzy understanding of this fundamental tenant of the Constitution is to be expected.

A quick primer: In almost all other countries, there is a national government — it has unlimited authority — that it might delegate partially to regional governments. The United States is the opposite. The federal government only has authority expressly given to it by the Constitution. This key doctrine is called “enumerated powers.” The enumerated powers of the federal government are those required to establish, unify, and defend our country. For example, national defense, international trade, foreign policy, post office, patents, immigration, and interstate commerce.

As recognized by the 10th Amendment, all powers not given to the federal government are retained by the States (capital “S” on purpose). At the heart of the authority of states is the “police power” — broad authority to protect the health, safety, and welfare of the people.  

For over a century, the federal government has been encroaching on traditional areas of state authority through expansive legislation and court rulings.

Why federalism? Allowing experimentation is an important reason. More important, it keeps governance closer to the people. The ability to affect public policy is strongest in your local community, and becomes all but infinitesimal in Washington, D.C. 

But the fundamentally essential reason is liberty. We divide up power among the States and federal government to prevent any single government from lording over us. By definition, tyrannical government cannot happen in a robust federal system. Tension between the states and federal government is vital. Liberty is the polestar of federalism.

The Trump presidency has given us a great excuse to repeatedly revisit civics. This is a teachable moment. Hopefully the pundits and politicians who rallied to the 10th Amendment were not doing so for cynical partisan politics. Hopefully they and the people will remember the 10th Amendment during the next policy debate or crisis.  If we renew our faith and adherence to federalism, our public policies will be stronger and our freedom much more secure.

Hon. Michael Warren is an Oakland County Circuit judge and co-creator of Patriot Week (www.PatriotWeek.org).

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