From Roman coliseums to Chinese communes, history shows repeatedly the devastating loss of freedom and humanity that can be wrought by unchecked government power. As survivors of religious and political oppression, America’s Founders were determined to provide their families and fellowmen with a system of governance that would avoid the tyranny of the past and protect life, liberty and property in the future.
Believing that “most bad government results from too much government,” as Thomas Jefferson put it, the Founders purposefully restrained the size and scope of government power. Men and women reading this article are familiar with the long list of painstakingly crafted limits the Framers placed on the federal government -- dividing governance among executive, legislative and judicial branches, establishing democracy and the right to vote, and creating a federal government of explicitly enumerated and hence limited powers.
Thomas Jefferson described the end goal of American government this way:
“A wise and frugal government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government...”
The federal government today unfortunately bears little resemblance to that vision. Federal rules determine our health care, retirement, savings, education, wages, and employment options. The capitol brims with men and women eager to regulate nearly every aspect of daily life, from the 1992 congressional mandate that toilets only use 1.6 gallons per flush to the 2007 ban of the incandescent light bulb. The nation carries a $12 trillion federal deficit, the equivalent of a $40,000 credit card bill for every man, woman and child in the nation. At last count, the average American worker spent the first three months of the year working just to pay his tax bills.
The crushing weight of Washington D.C. is the tip of the iceberg. Since 1972, America has gained an average of two new local governments every day. Regulatory juggernauts are the norm. Want to hold a bake sale at your church or school? You’ll be a criminal if you attempt that in Pennsylvania, New York, and Massachusetts, to name just a few states that have outlawed Betty Crocker. Want to cut hair in Arizona? Moms beware! To be legal, you’ll need to spend about $10,000 and 3,600 hours in training. From our children’s curriculum to the desserts we eat, fewer and fewer decisions remain outside the reach of meddling bureaucrats.
In Conscience of a Conservative, Barry Goldwater presciently wrote, “…today neither of our two parties maintains a meaningful commitment to the principle of States’ Rights. Thus, the cornerstone of the Republic, our chief bulwark against the encroachment of individual freedom by Big Government, is fast disappearing under the piling sands of absolutism…Nothing could so far advance the cause of freedom as for state officials throughout the land to assert their rightful claims to lost state power; and for the federal government to withdraw promptly and totally from every jurisdiction which the Constitution reserved to the states.”
Goldwater understood that the legions of agencies and brokers constituting the federal government would not easily relinquish power. Champions of limited government can help restore the lost limits on federal power by fighting fire with fire: deploying the constitutional power of the states to fight against concentrated power in Washington.
The most promising tool to scale back government is the ripe ground of state Constitutions. Under the federalist system, it was the Framer’s wisdom that the states would be the primary guardians of individual rights. As the Federalist No. 51 explains, a compound republic consisting of both federal and state governments, each with their own protections of individual liberties would provide a “double security” for the “rights of the people.” As part of that structure, every state ratified its own unique Constitution.
The Founders expected state Constitutions to excel in their role as guardians of the people’s rights. Indeed, early language from Virginia’s Constitution served as a model for the Bill of Rights itself. Our state Constitutions consequently are chock-full of restrictions on government power for which there are no federal counterparts, including anti-corporate bailout clauses, balanced budget requirements, and prohibitions against excessive debt. These principles should give limited government champions the home field advantage, but until now, few state Constitutional provisions have been vindicated in the courts.
At the state and local level, taxpayers seeking an end to government excess should prioritize reviving these doctrines. Activating anti-monopoly provisions and prohibitions against exclusive franchises can ensure the right of entry into businesses and professions like driving cabs and hauling trash. Strictly enforcing supermajority voting requirements, property tax caps and bonding limits can bring the hammer down on runaway spending.
One right sorely lacking in the U.S. Constitution is taxpayer standing. In most state courts, however, standing gives citizens the ability to challenge almost any exercise of government power by virtue of their taxpayer status. Without this right in federal courts, taxpayers had no legal recourse when Congress lavished preferential subsidies on private companies like GM.
But even as those million-dollar-subsidies were flooding into car dealers’ pockets, Arizona’s Court of Appeals was putting the brakes on a similar deal in Phoenix concerning a $100 million subsidy for a mall developer. The court declared the scheme unconstitutional owing to Arizona’s gift clause, a taxpayer protection prohibiting the state and cities from awarding donations, grants, or subsidies to individuals or companies.
New York, Maryland, and 34 additional states enjoy similar clauses designed to stop special-interest giveaways. While state courts are not bound to follow precedent from neighboring states, they look intensely to other jurisdictions for guidance in interpreting similar language. As a result, the potential for one state’s legal victory to shape outcomes nationwide is enormous.
Doctrines like the gift clause can reanimate an originalist view of government as one with strictly limited powers. Activists also will find promising language protecting private property, securing crime victim rights, prohibiting special laws benefiting a narrow portion of the public, and guaranteeing liberties not specifically enumerated. Litigating these provisions could renew limited government nationwide.
States also can offer protection against federal laws that threaten individual rights like the Employee Free Choice Act, a Pelosi-Reid priority. The act would eliminate the requirement of secret ballot votes, allowing unions to organize if a majority of employees signed cards stating their preference. Workers could be subject to intimidation by union organizers or employers if the right to a secret ballot disappears.
States, however, can guarantee the right to a secret ballot. To that end, Clint Bolick, Goldwater Institute litigation director, drafted a plain amendment for states that reads, “To preserve and protect the fundamental right of individuals to vote by secret ballot, where local, state or federal law requires elections for public office or public votes on ballot measures, or designations or authorizations of employee representation, the right of individuals to vote by secret ballot shall be guaranteed.” Any state can adopt this amendment to preserve the right to vote by secret ballot, regardless of what occurs in Washington.
Another Congressional priority is a national health system where lawmakers have proposed banning private health insurance and forcing all taxpayers into a government program. To protect a patient’s right to make his own health care decisions, two Arizona doctors drafted a state amendment to guarantee health freedom, regardless of national plans. The amendment also protects the right of citizens to forgo insurance mandates all together.
State amendments like these would create a Constitutional clash between the Supremacy Clause, which provides that federal law supersedes conflicting state laws, and the power of states to protect individual rights, which they retained under the 10th Amendment. Given the important state interests in protecting the secret ballot and freedom of association, both provisions should prevail in challenges with federal law.
A state Constitutional renaissance can rein in state and federal government power and reanimate an originalist view of government as one with strictly limited powers. The Goldwater Institute today is leading the charge to renew federalism, rebalancing the scales as the founders intended, to create a brighter future for the next generation. We’d love to have you join us.
Darcy Olsen is president & CEO of the Goldwater Institute. This column was originally written for Glenn Beck’s American Revival.