Federalism was an experiment which in some ways has failed. In some areas we have been blessed enough to have a system to adapt and grow into a more mature Country while in other areas we have failed to avoid the fears of the anti-federalists.
Evolutional thinking has seeped into all areas of study including Political Philosophy and History. This has given modern man the impression that all areas of life naturally evolve, that they become better and leave off unnecessary and useless aspects while improving. In reality all things left behind are not better left off there.
The Supreme Court should not be considered the final voice for all time on the Constitutionality of laws and legislation because that power is shared equally by all three branches in different ways. The Supreme Court has become more powerful than originally intended, it is unchecked, it legislates from the bench; recasting the Constitution in terms beneficial to a large central power. I do not refer to all Federal Judges at all times, but there is a prevalent awe in modern American culture for black robed men with seemingly vast amounts of good intention, impartiality and wisdom.
The Legislature is to expand the Constitution with Amendments while creating laws to govern the land entrusted to it. This requires a large amount of clarity when it comes to considering the original intent while remembering the developments of Constitutionalism and Federalism. The Executive Branch is called on to defend the Constitution and appoint judges that decide cases in view of “the rule of Law” and not party platforms.
The “Elastic Clause” or Article 1, Section 8, Clause 18 was intended to empower the National Government to pass laws to better fulfill its Constitutional powers enumerated in the Preamble and its expressed powers. I think it is clear that all Articles and Amendments in the Constitution must be interpreted in light of what is outlined in the Preamble. The 9th and 10th Amendments are clear in what we are to do with the rest of the rights and powers not enumerated in the Constitution.
I do not think there has been give-and-take between the States and the Federal Government. The Federal Government takes and invades areas it was not intended to enter (the New Deal). Sometimes the States have fought back and sometimes they have laid down. Ultimately, the Federal Government crushed the teeth of State resistance to Federal overreach at the close of the Conflict of 1860-65.
After the Conflict of 1860-65, Dual Federalism was prevalent. This version treats the Federal and the State Governments as equals with each level retaining definite and distinct functions and spheres of influence. Throughout American history this has been the dominate form of Federalism.
Cooperative Federalism treats the Federal and State Governments as halves of a whole; parts working together in a problem solving machine. This was introduced, as it is still exists today, by FDR and the New Deal.
New Federalism focuses on returning to State Governments certain powers previously stripped by the Federal Government in the 30’s. It hopes to focus on State centered Federalism instead of a heavy National Federalism or Picket fence Federalism; “the policy areas is the vertical picket on the fence while the levels of government are the horizontal support boards (America at Odds. 60)”.
The problem with the Constitution is that it was left so vague as to make both Federalists (Nationalists) and Anti-federalists (Confederalists) see what they wanted to see. Strong arguments could be made against everything I have said so far. But the beauty of a Federal system is that there is room to have both exist while we hash it out over vigorous debate, to some extent.
Unitary Governments give no room for localists, Confederalists or anything else. Their power is total and complete.
Confederalism deserves another look. I believe its weakness was obvious under the Colonial Congress, but Edmond Morris makes a great case for the positive Governance during the Critical Period in his book The Birth of the Republic. I believe this strongly because of our sheer size and number of citizens. A loosely covenanted group of smaller Republics is the only effective means to govern such a large area with so many people.
That day-dream put aside, we could argue about the virtue of Socialism. I believe it is both impractical and unnatural and leads to tyranny. The Government has a narrow role that establishes it as a legitimate government, pre-suppositionally, and it is grossly unqualified to parent, nanny, provide or doctor the masses. The New Deal, like most Governmental responses to emergencies, was simply a way to grab more power while shoring up the power it already had. I no longer strive for my own good, but am forced to work and provide for others. Capitalistic Socialism does not work anymore than Communism does and cannot because of the natural state of man, which cannot be sanded off by the Enlightenment. The New Deal set a terrible precedent; the nanny state. Except in this tale the little children never grow up but are nannied from the cradle to the grave.
The legacy of the Federalists is a slow, methodical, overreach into areas of our lives it should stay out of. The lack of multiplicity of voices in the political sphere, i.e. more parties, has led to two narrowly focused groups shouting at one another. The multi-faceted days of equally invested, empowered Republics (States) are hardly a memory. But there is room for a come-back.