Close

September 7, 2010

State or Federal? Learning to Ask the Right Constitutional Questions

The federal government is often lobbied to address a variety of pressing social issues not authorized by the Constitution. While such pressure is common among those arguing for widespread federal intervention to create fairness, safety, and other desired outcomes, it is strangely also common among many self-proclaimed proponents of small government. How can this competing juxtaposition of political principles exist within one who claims to support the Constitution’s limits on federal power?

There are a few possible reasons for this rather common occurrence. For starters, it could be because most people tend to take advantage of something that favors them even if it means “bending the rules” a bit. Given this scenario, they might support federal intervention when the outcome leads to something they benefit from or personally like. However, if that be the case, then maybe such individuals should reexamine their values and see if they really believe in the Constitution and its limited government requirements. Regrettably, after such an evaluation, some will find that they actually are not interested in expanding personal liberty but are instead seeking to govern outcomes and behavior.

Others, though, will evaluate their inconsistencies and see the folly of their ways. They now realize they had taken the path of least resistance toward a flawed outcome, the result of which was another step down the slippery slope of big government. Reforming themselves, they will do the heavy lifting necessary to correct their thinking and align their viewpoints with the Constitution. In diagnosing their mistake, they realize they failed to ask the right constitutional questions before seeking a government solution.

So what are the right constitutional questions to ask when evaluating the government’s role in addressing social problems? To explore this issue, let us look at a real problem that divides many on the limited-government side of the equation — drunk driving.

Few people of any political persuasion would argue that driving while drunk is a good thing. Period. In fact, most people can share personal horror stories about death and destruction caused by a drunk driver. That negative being the case, is it not then a good thing for government to severely crack down on such drivers? If so, would it not be easier to lobby one government — the federal government — to pass a law that would address this issue once and for all? Would not a single federal standard makes sense compared to the alternative of having to lobby all 50 legislatures across the country for the same thing?

These are reasonable questions that make logical sense to most people. Due to public awareness and outcry over the problems of drunk driving, enough people acted on these sentiments to do just that in 2000. The result was a new federal law signed by President Clinton that prodded the States to adopt a 0.08% and above blood-alcohol level standard for defining drunk driving. The States, faced with losing federal highway funds if they did not comply with this new standard, quickly enacted their own laws establishing this standard.

Sounds good so far, right? Well, that depends on how well one knows the Constitution. Three constitutional questions immediately come to mind regarding this touchy issue:

1. Is drunk driving a state or a federal issue?

2. Where does the Constitution empower the federal government to create national standards to penalize drunk driving?

3. Where does the Constitution authorize the federal government to mandate the States to adopt any drunk driving standard?

While legitimate constitutional questions should also be asked about the very existence of “federal highway funds” and the withholding of them as punishment, that is left for another article.  The important question within this context has to do with whether drunk driving is a state or a federal issue. If it is a state issue, then the federal government is not authorized to act and should remain silent — no matter how good or heartwarming the outcome would be for them to intervene. Unconstitutional federal intervention, even when done under the best of intentions, is simply wrong. Not only does it establish a bad precedent, but it leads to additional abuse as federal power is amassed at the expense of individual liberty and State sovereignty.

The Tenth Amendment allows the States great latitude and flexibility. This means they can act on many social problems that the federal government is prohibited from addressing. Since the Constitution prohibits federal intervention on many fronts, problems like drunk driving can and should only be addressed at state and/or local levels.

Ludwig von Mises Institute President Lew Rockwell explored this issue in his November 3, 2000 article entitled “Legalize Drunk Driving.” While Rockwell points out many legal problems with drunk driving laws in general and this federal one in particular, he concludes his article with a final point against the 2000 federal drunk driving law:

It is a violation of states rights. Not only is there is no warrant in the Constitution for the federal government to legislate blood-alcohol content – the 10th amendment should prevent it from doing so. The question of drunk driving should first be returned to the states . . .

So, as readers, your challenge is to ask the right constitutional questions about everything the federal government has done, is doing, or even considers doing. Is the matter in question a State or a federal issue? If a State issue then why is the federal government involved at all?

The answers to these questions can sometimes mean more short-run work for you as you are forced to lobby multiple state legislatures to produce national change; however, in the long-run it is a good thing. This process not only preserves the Founders’ constitutional balance of power, but many find that after asking the right constitutional questions a better and more effective solution emerges — one that both addresses the problem and preserves liberty.

Image Credit: Rob Wiltshire

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.