This is an archived article that was published on sltrib.com in 2016, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
The election cycle of 2012 produced a great deal of anti-government rhetoric, particularly anti-federal clamor for "states' rights," as if there were some constitutional impediment to federal power. Various groups espoused heated anti-federal rhetoric (Tenthers, Tea Party, Posse Comitatus, We the People, Sovereign Citizen) which came close to advocating violence.
The 2016 election cycle seems to have reinvigorated some aspects of that theme, and veiled threats of violence still lurk in militia support for anti-federal activists.
It might be helpful to realize that anti-federalism is a phenomenon that comes around just about once every generation. Even though the "states' rights" rhetoric has been diluted, we still hear diatribes against federal policy on issues such as immigration, health insurance, control of federal lands and social welfare entitlements. Actually, a group calling itself the "Tea Party" is still at it, to the extent of extolling the talents of comedian/commentator Jon Stewart who is said to have "brainwashed a generation."
At this stage, it might be helpful to recall that in our past, the following movements have generated as much if not more heat:
Anti-Federalists (election of 1800)
Clay and Calhoun - Nullification (1820s and 1830s)
Civil War (1861-65)
Trust Busting (1890s)
New Deal (1930s)
Civil Rights Movement (1960s)
In 1800, Thomas Jefferson ran for president against John Adams with attacks on the federal anti-sedition laws and big government, then immediately engaged in the unauthorized Louisiana Purchase. (Speaking of heated rhetoric, just four years later Aaron Burr shot Alexander Hamilton to death in a duel.)
The Nullification Debates of the 1820s and 1830s actually resulted in resolutions from state legislatures to the effect that the states could nullify federal decisions, thus setting the stage for secession and the Confederacy.
The Civil War produced 620,000 deaths of uniformed soldiers and untold numbers of displaced persons, followed by the trauma of Reconstruction that lasted until the Compromise of 1876. That era was followed by the westward expansion of the nation and industrial revolution, which produced federal trust-busting and fair labor standards initiatives that ran head-on into demands for state autonomy from federal regulation.
The Great Depression and New Deal saw federal regulation of financial markets and labor standards again challenged by states' rights advocates who had preliminary successes in the Supreme Court that were ultimately overturned in the 1937 reversal of judicial review over federal power. That heralded a period of 40 years in which the Supreme Court essentially disavowed review over the extent of federal regulatory power. From 1976 to the present, there have been a handful of decisions holding federal statutes to be beyond the scope of Congress' power.
After the affluent 1950s, we saw the 1960s and the Civil Rights Movement. None of us who observed George Wallace or Orval Faubus can forget the rhetoric of "states' rights" that was used to resist the human rights efforts of the federal government. It is a mystery to me how anyone can listen to that rhetoric now and not be reminded of the oppression of African-Americans for two centuries in this country.
Gallons, indeed barrels, of ink have been spilled over explanations of how we got into the financial mess that began in 2008. What are the best policies to follow now? I have no idea what is best for the economy. What does seem clear, however, is that promotion of a national economy cannot be accomplished at the state level. No single state can address the practices of multinational corporations or even touch the abuses of Wall Street investment houses.
James Madison and his colleagues may have had no idea how to regulate electronic fund transfers among multinational corporations, but they did have some sense of how to construct a government that could "form a more perfect Union, establish Justice, [and] promote the general Welfare."
Does the federal government sometimes overextend its power? Unquestionably. Who is the ultimate check on that power? "We the People." As John Marshall said in the first Supreme Court opinion dealing with this phenomenon: "The wisdom and discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, . . the sole restraints on which they have relied, to secure them from abuse."
Wayne McCormack is the E.W. Thode professor of law at the S.J. Quinney College of Law at the University of Utah.