It is (my) intention to … demand recognition of the distinction
between the powers granted to the Federal Government
and those reserved to the States or to the people.
All of us need to be reminded that the Federal Government
did not create the States; the States created the Federal Government.
– President Ronald Reagan, First Inaugural Address, Jan. 20, 1981
When I heard President Ronald Reagan utter the words above, my heart leapt with joy. I couldn’t imagine a modern-day president recognizing the sovereignty of the states and understanding their role in the creation of the American republic. If I had been the scrivener of that address, I’d have added “and the powers that the states gave away to the feds they can take back!”
Oh, how the presidential attitude has changed.
Last week, President Donald Trump purported to order the states to reform their policies on bail so as to incorporate a variant of pre-conviction incarceration. He also ordered them to prosecute people for burning their own flags. His own observations have apparently caused him to conclude that bad people — including flag burners — should be picked up off the streets, incarcerated and kept there until trial. In another breath, he referred to the states as “agents” of the federal government.
Trump has been on a campaign to use federal force to enhance public safety. He may be right that many Americans would like to see him do this, but where is his constitutional authority to do so? In a word: NOWHERE.
Here is the back story.
The drafters of the Constitution wove into its fabric the concept of subsidiarity. This means that problems for government to solve should be addressed by the government closest to the problem and the people affected by it. As well, government should employ the least assets needed, not the most available.
This is reflected in the Constitution by the reservation of powers to the states. When the first 13 states formed the federal government and when the succeeding 37 joined — some voluntarily and some literally with guns aimed at the heads of state officials — they did so embracing subsidiarity. Among the powers they knew they were not giving away to the federal government was the police power.
James Madison, the chief draftsman of the Constitution and the author of the Bill of Rights, insisted that the 10th Amendment declare that the powers not given away to the federal government are retained by the people and the states. Foremost among them is the police power — the power to regulate and enforce laws for the health, safety, welfare and morality of all persons in the states.
The federal government is one of limited powers. The Congress — unlike the British Parliament and American state legislatures — is not a general legislature. It cannot right any wrong or tax any event or insinuate the feds into any relationship or regulate any behavior it chooses. Congress may only legislate in the 16 discrete areas of governance articulated in Article I of the Constitution. And the president may only enforce the laws that Congress has enacted.
Trump is probably correct that most major American cities are poorly managed, over taxed, unsafe and often unpleasant. But these problems are for the people in those cities and the legislatures of those states.
Madison made it clear, just because a problem is national in its scope does not make it federal in its nature. A national problem is one common to vast areas across America. A federal problem is one the governance of which is articulated and delegated to Congress in the Constitution.
If national problems can be transubstantiated into federal problems just because they are ubiquitous, then the Constitution is meaningless.
This system was crafted to prevent the accumulation of power in Washington. It was also crafted, a la Reagan, so you can vote with your feet. If you don’t like the taxes and regulations in Massachusetts, you can move to New Hampshire.
Can the states criminalize burning your own flag, as Trump has demanded? They can ban dangerous fires, but only because of the smoke and flames not because of the ideas represented by the fuel. Justice Antonin Scalia — whom Trump has praised as his favorite Supreme Court justice and who voted with the majority in both Supreme Court cases invalidating flag burning statutes — opined that the flag stands for the idea that it may legally and constitutionally be destroyed; no matter who is offended thereby.
Now, back to bail.
In my career as a trial judge in New Jersey, I set bail for a few thousand persons. At that time, judges had the discretion and obligation to address the presumption of innocence, the seriousness of the alleged crime, the nature of the evidence against the accused, and the history and community ties of the accused, and then make an informed judgment about bail. Bail is not a privilege; it is a right guaranteed by the Eighth Amendment.
Today, a few state legislatures have removed judicial discretion in setting bail. State-mandated cashless bail — effectively pre-trial freedom with no posted bail — is demonstrably ruinous of justice and public safety, but it is a state issue and a national problem, not a federal one.
When the feds offer funds to the states, there are always strings attached. But those strings, the Supreme Court has ruled, must be related to the purpose of the funds and attached when the funds are offered; they cannot be added unilaterally afterward. Can the president hold back funds from a state because he dislikes its bail laws — funds promised and premised on strings not mentioning bail? In a word: NO.
Channeling Justice George Sutherland: If the provisions of the Constitution are not upheld when they pinch as well as when they comfort, they may as well be abandoned.
To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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