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The Williamsburg Resolve
We gather at a historic moment at a historic place.

Here and in other colonial capitals, the nation's founders first debated the idea of independence and the fundamental principles of freedom. Then, the challenge to the liberties of the people came from an arrogant, overbearing monarchy across the sea.

Today, that challenge comes from our own Federal government - a government that has defied, and that now ignores, virtually every constitutional limit fashioned by the framers to confine its reach and thus to guard the freedoms of the people.

In our day, the threat to self-determination posed by the centralization of power in the nation's capital has been dramatically demonstrated. The effects of intrusive Federal government authority have been felt so widely and so profoundly that a united chorus of opposition has risen from town halls and State capitols, from community organizations and private associations, from enterprises and individuals, across America.

The founders of our Republic and the framers of our Constitution well understood the ultimate incompatibility of centralized power and republican ideals. They did not pledge their lives, fortune and sacred honor to achieve independence from an oppressive monarchy in England only to surrender their liberties to an all-powerful central-government on these shores. Rather, they devoted their considerable energies and insights to erecting an array of checks and balances that promised to prevent the emergence of an unresponsive and unaccountable national government.

Chief among these checks were to be the State governments, whose co-equal role was expressly acknowledged in the Tenth Amendment to the Constitution, and whose sweeping jurisdiction and popular support were presumed sufficient to resist Federal encroachment. The Federal government, by contrast, was given certain expressly enumerated powers and denied all others. From this balanced federal-state relationship, predicated on dual sovereignty, there was to come a healthy tension that would serve as a bulwark against any concentration of power that threatened the freedoms of the people.

Two centuries later, it is clear that these checks and balances have been dangerously undermined. The States have witnessed the steady erosion sometimes gradual, sometimes accelerated of their sphere of responsibility. Today, there is virtually no area of public responsibility or private activity in which Federal authorities do not assert the power to override the will of the people in the States through Federal rules, rulings, and enactments.

Our freedoms are no longer safe when they exist only at the sufferance of Federal legislators, Federal courts, anal Federal bureaucrats.
Post Office Box 2456 * Richmond. Virginia 23201

The people of the States seek to regain control entrusted State leaders with the responsibly for archiving this fundamental reform in our governmental system. We are pledged to fulfill this promise by restoring to the States and the people the prerogatives and freedoms guaranteed to them under the Constitution.
 

Excess and Abuses by the Federal Government

We begin by candidly enumerating, ad sis our forebears, the grievances of the people who have turned to us for leadership:

    • The Congress and Executive Branch, regardless of the party in control have imposed ever-growing numbers of mandates, regulations and restrictions upon States and local governments, removing power and flexibility from the units of government closest to the people and increasing central control in Washington.
    • Federal action has exceeded the clear: bounds of its jurisdiction under-the Constitution, and thus violated rights guaranteed to the people. The government of "limited, delegated powers" envisioned by the framers has .become a government of virtually unlimited power.
    • Federal courts have largely refused to enforce the guarantees of the Tenth Amendment, which reserves to the States and the people powers not expressly delegated to Congress. Most Federal court decisions have refused to recognize any meaningful constitutional limit to congressional power.
    • In holding that the States must rely on political processes in Washington for their protection, the Federal courts have, permitted Congress and Federal agencies to treat the States as though they are merely part of the regulated community, rather than as sovereign partners in a federal system of shared powers.
    • Federal mandates have imposed enormous costs on States and localities., draining away resources and preventing State governments from addressing pressing local needs such as education, law enforcement and transportation.
    • With a persistent budget deficit, the Federal government has forced the burden of funding Federal programs onto State and local governments, resulting in increased taxes at the State and local level that citizens do not warn.
    • Federal mandates and preemptive measures deprive State and local governments of the ability to set priorities, thereby diminishing their ability to allocate resources and tailor programs in the way best suited to meet local needs.
    • Federal laws impose "one size fits all" requirements that often make no sense in light of local conditions and force States and localities to waste limited resources.
    • The Federal government's failure to meet its own responsibilities has forced States to incur billions of dollars in excess costs.
    • In addition to laws passed by Congress, States and localities are burdened by mushrooming numbers of complex, lengthy, and incomprehensible regulations, imposing enormous costs of compliance. These regulations are drafted by unelected bureaucrats who are not accountable to the people.
    • Congress has not only assumed ever-growing power for itself; it has thwarted many State initiatives to deal with local problems. Federal preemption of State and local laws has reached unprecedented proportions.
    • Congress has refused to make itself subject to the same laws that it has imposed on States, localities, and citizens, granting itself exemptions from labor, civil rights, and other laws that States, localities, and citizens must obey.
    • Congress has failed to show a capacity for self-regulation in its relations with the States, failing thus far even to pass reform measures to restrain the growth of unfunded mandates.

1 The U.S. Conference of Mayors has estimated that unfunded federal mandates consume almost 12 percent of locally raised revenues.
2
The Congressional Budget Office estimates that regulation* imposed on local government during I 9S3-1990 cost up to 512.7 billion.
3
0f439 explicit preemptions of State and local laws connected by Congress in the 202 years from 1789 to 1991, 233 (53%) were connected in the 2.1 years between 1970 and 1991.
 

The Effects of Centralized Power in Washington

The effects of the centralization of power in Washington are evident in the acute frustration and feeling of powerlessness among the voters, which was manifest in the recent congressional elections
I.
Decisions affecting the lives of citizens have been placed beyond their reach,
As Federal institutions -- Congress, the Federal courts, and the Federal bureaucracy have seized ever greater responsibility for determining policy on issues of importance, the ability of citizens to influence the course of government has been diminished. Decisions made through government processes at the State and local levels are far more accessible to citizens than decisions made in Washington. Citizens increasingly feel powerless to shape their future because fewer policy choices are made at levels of government within their grasp.

II. Centralized power in Washington is denying to the people the responsiveness and accountability that are essential for republican self-government.
The hallmark of self-determination is government that is responsive and accountable to the people. The appetite for power on the part of Federal institutions has allowed a centralized government to operate often without the support of the people and in disregard of their will. This has undermined the very premise of representative democracy.

Citizens possess little or no control over the actions of Federal conns and the Federal bureaucracy, both of which have assumed dramatically broadened policy making roles in recent decades. In the recent elections, Americans signaled their determination to reassert control over the Congress, which has long been largely insulated from accountability to the voters by reason of procedure, perquisite, and distance.

The problem is not that the Federal government invariably pursues the wrong aims or invariably falls to attain those aims which it pursues. Examples abound in our history where the exercise of Federal power has been wise and unwise, effective and ineffective, constructive and destructive.

The problem, fundamentally, in a country of this size and diversity, is the inherent unaccountability of a national legislature and bureaucracy. Governments at all levels can and do make mistakes that call for correction. Such corrections, however, are more easily accomplished at the State and local levels, where voters can more easily hold the responsible decision-makers accountable, When decisions are made at the Federal level, the actions that aggrieve people in one State typically are made by officials elected from other States, or by officers who are not elected at all, and over which the affected citizens thus have no real political influence.

III. The people's acute frustration and anger today are attributable in part to The growth of Federal power at the expense of State and local governments,
There has been much commentary about the current popular mood of profound discontent and cynicism. Some apologists for the status quo have sought to blame the people for having unreasonable expectations. This is the ultimate insult to an electorate that has seen the value of its franchise systematically diminished by the transfer of policy making powers away from accountable State and local officers to the aloof power structure in Washington.

The current, cresting feeling of frustration and futility among voters is not an inexplicable phenomenon. To the contrary, it is a direct and wholly predictable consequence of the shift of government power to initiations beyond the grasp of the people.

The problem is not only that decision makers in our nation's capital are remote and unaccountable. It is that their actions in many cases have rendered State and local officials unresponsive as well. Officials at the State and local levels often cannot meet the expectations of the people who elected them because of an inhibiting web of Federal laws, regulations, court orders, administrative interpretations and edicts. Thus, there is a widening gulf between the voters' demands for change and the ability of State and local leaders to surmount Federal obstacles and effect that change.

The Means of Correction

Recognizing the imperative of reform to restore balance in federal-state regions and empower citizens, we turn our attention to the question of remedy.

In The Federalist No. 46, James Madison commented on the primary means by which the States would correct any invasion of Federal power upon their prerogatives He wrote:
"Ambitious encroachments of the federal government on the authority of the State governments would not excite the opposition of a single State, or a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke...."

The concerted action by the States envisioned by the Fathers of our Constitution is now required. Concerns about the condition of federal-state relations have been voiced throughout our Nation's history. But, today, there is a unique need and a unique opportunity for reform:

    • Never has there been a broader consensus among the States -- and among the elected officials and voters in the States, regardless of party-- that the Federal government has pervasively exceeded its constitutional bounds and must be restrained.
    • Never has there been a national debate over federal-state relations directed exclusively to the merits of the question, and neither obscured nor diverted by divisive policy disputes that pit region against region or State against State.
    • Never have those wielding Federal power until the recent election been so imperious in their assertion of Federal supremacy and so out of step with the majority philosophy and views of the American people.
    • And never has there been such a profound change in national leadership, bringing into Federal office persons disposed to support bold reform to restore the States and the people to their rightful place in our constitutional system.

In short, this is an historic moment of opportunity - an occasion when the political climate makes possible fundamental change in the federal-state relationship.

While congressional cooperation is essential in order to achieve this structural change, the leadership for lasting reform must come from the States.
 

A Common Agenda of Reform

Recognizing the urgency of the need and the uniqueness of the opportunity for reform, we declare our common resolve to restore balance to the federal-state relationship and renew the framers vision. An agreed agenda for concerted action to achieve this objective is essential. Among the principal elements of this common agenda of reform are these:

I. fifobilitinx the People to Reclaim Their Freedom
The people of the United States, and of the several States, are frustrated and disillusioned by the decline of responsiveness and accountability in our political processes. This feeling of powerlessness has been manifested in calls for a host of political reforms, including greater direct democracy, term limitations, and various campaign reform proposals. Yet, too few of our citizens appreciate the central role that the erosion of State and local prerogatives, and the emergence of the Federal bureaucratic, judicial and legislative leviathan, have played in their loss of political liberty.

We are resolved to bring these developments and consequences urgently of the attention of the people of our Stales, and all Americans. Only then our citizens fully appreciate the practical and pervasive impact on their daily lives of federalism's decline wilt they demand change.

II. Litigation to Enforce the Tenth Amendment
The central purpose of the United States Constitution was to establish a federal government of expressly delegated and therefore limited powers. The powers reserved by the States were, in Madison's words, "numerous and indefinite," extending "to all objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the States.""1 The framers of the Bill of Rights specifically designed the Tenth Amendment to protect the States from encroachments by the Federal government on their reserved powers.

In His Federalist No. 39, Madison recognized that the Constitution entrusts to the Supreme Court alone the responsibility to police and to nullify Federal encroachments on the reserved powers of the States and that the Court's faithful exercise of that responsibility would be "essential to prevent an appeal to the sword and a dissolution" of the Constitution itself. The Supreme Court, however, has failed to enforce the constitutional boundary between the respective powers of the Federal and State governments. For over half a century, the Federal government has steadily extended its rules and regulations into virtually every area of public and private life, and the Supreme Court has acceded to each succeeding usurpation.

In recent years, the Supreme Court has broadly abandoned its constitutional role, ceding to Congress itself the responsibility to determine the extent of Congress' own legislative power. The decision of the Supreme Court in New York v. United States, 1 12 S. Ct, 2408 (1992), while encouraging in its indication that there is some remaining vitality to the Tenth Amendment, nevertheless demonstrates the exceedingly modest nature of the limitations on Federal action that the Supreme Court is currently willing to enforce.

Still, because nothing less than the constitutionally guaranteed freedom of Americans to govern themselves is at stake, usurpations by Federal legislators and bureaucrats of powers not 1delegated to them under the Constitution must be resisted with whatever tools are at hand and in whatever forums are available. Until the Constitution is amended to give the States additional powers to protect against Federal encroachment, means of relief.

We are therefore resolved lo pursue energetically in the Federal courts Tenth Amendment challenges to Federal encroachments info /he domain of the States.

III. Restrictions on Federal Mandates and Other legislative Initiatives
Across the country, governors, mayors, county officials, and state legislators of both parties are working together to obtain relief from burdensome Federal mandates. This bipartisan State-local partnership has created a potent force for change, and offers hope for resolving a broad array of problems arising from Federal encroachment upon State and local responsibilities.

Federalist, No. 45.
Foremost among these problems is the displacement of State and local priority-setting and the imposition of trickle-down tax increase pressure as a result of unfunded Federal mandates. While unfunded obligations are most objectionable, other Federal mandates also impose unacceptable burdens by treading upon areas of traditional State and local responsibility, by imposing onerous conditions on Federal grants unrelated to the purpose of the Federal funding, and by commandeering the States and local governments for the administration of Federal programs and policies.

A majority of the U.S. House of Representatives and U.S. Senate co-sponsored mandate relief bills during the 103rd Congress. President Clinton, himself a former governor, has repeated his intention to work with governors and other State and local officials to end the proliferation of new mandates. Nevertheless, Congress has continued to pass, and the President has continued to sign, legislation that imposes unfunded mandates on the States and on local governments.

Although slightly different forms of the Federal Mandate Accountability and Reform Act of 1994 were passed by overwhelming bipartisan majorities of the Senate Governmental Affairs Committee and the House Government Operations Committee earlier this year, this legislation was denied consideration on the House and Senate floors. The recent congressional election results are cause for optimism that mandate relief legislation will soon be enacted.

The legislation offered earlier this year requires the Congressional Budget Office to prepare an estimate of the costs of new mandates to States and local governments if the total cost exceeds $50 million a year. It also erects a series of impediments to new mandates, and makes Congress more accountable for those that are imposed. Through these mechanisms. State and local officials would enhance their political and procedural leverage to defeat unwanted, and especially unfunded, mandate proposals.

While this year's proposed legislation is the most stringent and effective mandate relief bill ever considered by Congress, it is clear that States and local governments want even more far-reaching change.. Restoring balance in state-federal relations is perhaps the most important national reform that could be undertaken by the 104th Congress. From health care to welfare reform to the environment, Congress should work in partnership with the States to attain our mutual goals of empowering State and local governments and achieving the efficient, orderly reduction of the Federal government.

In cooperation with our respective Slaw congressional delegations, we are resolved to promote prompt mid dramatic mandate relief during the next Congress.*

Attached at Appendix A is a partial list of Tcderalisiri-ivlntcd legislative initiatives suggested by Governor Voinovich of Ohio.

IV. A Conference of the States to Fork's Consensus on Structural Ref
While the recent changes in Washington have raised hopes for prompt action to restore balance to the federal-state relationship, the need for an agreed agenda and concerted action by the States is clear.

A Conference of the States would enable State representatives to consider, refine and &> ^-adopt proposals for structural change in our federal system. The proposals so adopted would then comprise the States' Petition, which would be a powerful instrument for arousing popular support and promoting change in Congress and State legislatures.

Throughout our history, the States have faced this dilemma in resisting the growth of Federal power; On the one hand, questions regarding the scope of Federal government jurisdiction :are resolved by Federal courts, which generally have favored more expansive interpretations of Federal power. On the other hand, the States' recourse to the constitutional amendment process has been impeded by Congress' control over the initiation of constitutional amendments. Use of the "convention" method of amendment that is available through direct State action has never been used due to fears that a constitutional convention called by the States would become a "runaway" assemblage that would seek to rewrite our entire national charter.

At the Conference of the States, a variety of proposed constitutional changes could be put forward that would enable the States to become full partners again in a dynamic federal system premised on dual sovereignty.

One possible amendment would provide constitutional protection against unfunded mandates by barring enforcement of Federal legislation that imposes obligations on the States without funding and legislation that imposes conditions on Federal assistance not directly and substantially related to the subject matter of the assistance.

Another proposed structural reform would allow 3/4 of the States to initiate constitutional amendments, and to repeal Federal legislation or regulations that burden State or local governments, subject to congressional authority to override the State-sponsored measures by a 2/3 vote of both houses.

The Conference of the States could also adopt an amendment that would make clear the US Supreme Court's duty to entertain and resolve controversies between the States and the Federal government arising under the Tenth Amendment.

To be effective, the Conference of the States must focus on fundamental, structural reforms, such as those described above and others, rather than transitory policy issues or special-interest concerns. It must be scrupulously bipartisan. And it must be pro- active, concentrating the influence of the States and focusing public attention nationally on the relevance and importance of federalism.

We are therefore resolved to promote in our respective States and nationally the convening of the Conference of the Stales, and to urge passage of Resolutions of Participation in our respective Slots legislatures during the 1995 legislative session.

 

Conclusion

As future chapters are written in the history of this great American experiment in enlightened self-rule, no single contribution can be more important than to preserve the vital checks and balances that prevent the centralization of governmental power and thus stand guard in defense of our liberties. To achieve this essential goal, the leadership must come from the States and the people in the States.


Copyright Common Law 1998-2013 ALL RIGHTS RESERVED
Walter L. Myers

Last Update:  01/06/2015 04:18:56
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