April 24, 1964
PAGE 8968
GOVERNMENT'S HIDDEN DIMENSION
Mr. HUMPHREY. Mr. President, the distinguished junior Senator from Maine [Mr. MUSKIE], has made a rich contribution to the literature on American federalism. I am sure that all Senators and others who read the CONGRESSIONAL RECORD will be grateful to have this excellent, articulate, and thoughtful exposition of the Federal system placed in the RECORD, so that more of us can benefit from the wisdom and perception of the Senator from Maine [Mr. MUSKIE].
I ask unanimous consent to have the article, entitled "Government's Hidden Dimension," which was published in the Saturday Review of April 18, 1964, printed in the RECORD.
There being no objection, the article was ordered to be printed in the RECORD, as follows:
GOVERNMENT'S HIDDEN DIMENSION: A U.S. SENATOR SEES IN FEDERALISM A NEGLECTED SOURCE OF NATIONAL STRENGTH AND STABILITY (By EDMUND S. MUSKIE)
It is one revealing commentary on the image of the United States that our friends abroad are so quick to congratulate us on the stability of our institutions in time of crisis and so ready to condemn us for our deliberate speed in dealing with critical issues both foreign and domestic. Few really understand that the basis of our stability is the cause of our deliberation.
An assassin can rob the Nation of a beloved leader. But the constitutional structure of government remains inviolate, held together by procedural threads stoutly woven into the fabric of our system and tested by time and experience.
The madman's bullet may damage the national psyche. Even so -- to quote Lyndon B. Johnson's quiet estimate of his own first 100 days -- "the peoples' part was well done."
Let foreign princes marvel at how swiftly a new President may apply his own spurs to an ornery National Legislature.
Americans have accepted our scheme of succession without qualm or question since John Tyler first subjected "the wisdom and sufficiency of our institutions to a new test" by deliberately establishing that the Vice President becomes President in fact and not merely an acting caretaker on the death of an incumbent. So once more "the great Federal Establishment has moved on with the business of state," as the Washington Post said recently, "steadying in the wake of calamity to all the demands that crisis has made upon it."
But stability and effective constitutional government are not all that is expected of the United States. Throughout the world, as well as at home, querulous voices are raised whenever our Government fails to act decisively on a point of international conflict, or when domestic pressures "are permitted" to condition foreign policy, or when the Nation "fails" to scrub away the tarnish of civil wrongs from its own image.
Our critics overlook the fact that America's governmental institutions are stable because they are pluralistic, because they are democratic, because they are counterbalanced and constitutionally inhibited. For the same reasons, they are sometimes slow -- at least by comparison with authoritarian regimes. If we have only begun to resolve the promise of civil rights for all and the problems of the aged, of urban expansion, of education, of poverty, of unemployment, and all the rest -- if the product of our federalism is still imperfect -- it is not for lack of recognition. The problem of meeting common needs today is more procedural than philosophic. The issues are when and how, not whether.
There are, of course, many elements of stability in the American constitutional system: the checks and balances based upon a separation of powers among the legislature, executive, and judiciary; the bicameral legislature; the practice of judicial review by the Supreme Court; congressional control of appropriations, constitutional limitations upon the powers of the Central Government; and even custom and tradition.
But far and away the most powerful and pervasive force for stability and continuity in our system of government, beyond the Constitution itself, is the division of governmental powers and jurisdictions between the National Government and the States. Under the U.S. Constitution, the States are indestructible organs of local government that exist and function in their own spheres. Without this kind of democratic decentralization the future of our democratic institutions, subjected to increasing pressure from centralizing forces within and totalitarian forces without, might well be placed in jeopardy.
Despite the critical importance of our multi sovereign Federal system, it is precisely this aspect that is so poorly understood. For non-Americans, it is easily the most incomprehensible facet of the American constitutional system.
Our Constitution is honored throughout the world as a model charter of representative government and democratic freedoms but its role as a vehicle for apportioning sovereignty between the Federal Government and a State is but dimly perceived. It strikes the "average" European or Asian as anomalous in the extreme that our powerful Central Government should feel itself compelled to bicker with State officials about the enforcement of U.S. laws -- or that the Supreme Court should find it necessary to arbitrate conflicts between the authority of "political subdivisions" and the authority of Washington.
If the precise nature and functioning our multi sovereign system is an esoteric subject for our neighbors overseas, it is equally true that most Americans today only vaguely sense an even more significant complication -- namely, that the whole interplay of these relationships has been profoundly altered today from many of their original concepts.
Mutations of far-reaching consequences have occurred and continue to occur throughout the whole structure.
Only 2 months before his death, President Kennedy sought to focus public awareness on the importance and meaning of this quiet revolution. "The problems of government," he said, "are becoming more and more complex and the relationships between State and Federal Government more and more interdependent . . . but the more important point is to recognize that we are allies under the Constitution. Too often it is suggested that the Federal Government and the State governments are competitors. Instead we must work closely together for the benefit our country which we all seek to serve."
It is necessary to recognize the changing patterns of this alliance not only to understand American federalism today but also to draw valid conclusions about its vitality and importance for the future.
The Constitution does not define the term "federalism," nor does it describe precisely what its framers had in mind regarding the boundary between the Central and State governments. In fact, the Constitution does not use the word "Federal," nor does the preamble go further than to say that the Founders hoped to "establish a more perfect Union."
The Union they founded was one of semi-autonomous States under a National Government that exercised "enumerated" and carefully circumscribed powers. The powers retained by the States were not enumerated although it was implied (and later explicitly stated in the 10th amendment) that those powers not specifically given to the Central Government would be retained by the States or the people.
Debate since the adoption of the Constitution (and even before) has centered primarily around two opposing concepts of the proper balance between Federal and State powers. One doctrine would restrict the National Government to its enumerated powers. The other would supplement these powers with authority implicitly delegated throughout our Constitution and with inherent powers deriving from the national character of the Central Government. Strict construction on the one hand to preserve the State powers has been opposed on the other by a viewpoint giving full freedom to the Central Government to pursue constitutional ends even at the expense of State prerogatives. The history of federalism has been, largely, a history of conflict between these interpretations.
Roughly speaking, the dividing line between the older approach of "strict construction" and the newer philosophy of national preeminence was the Civil War and the adoption of the 14th amendment. The implications of that amendment, as it has turned out, were enormous but its practical effect remained negligible for almost 60 years.
It is sufficient for our purposes to recall that from 1865 to 1930 the emphasis of constitutional struggle shifted more toward the protection of property rights against the monopolies of public power, and that during the past 30 years it has shifted again increasingly toward promoting the use of Federal authority to preserve and enhance individual rights and welfare.
Certainly the most fundamental and dramatic changes in American federalism have taken place since 1900 and, principally, since the 1930's. Considering that for almost 15 years prior to the present generation the emphasis of constitutional law in the United States has been upon preservation of State powers and limitation of the Federal, it should come as no surprise to find large areas of opinion today that cling to the astringent approach to Federal powers.
In fact, the constitutionality of many Federal powers under the 14th amendment and the commerce clause is still debated by many who draw sustenance from an era of constitutional law when States rights theories such as interposition and nullification seemed more plausible than they do today.
The scope of the constitutional revolt the 1930's, and the rapidity with which traditional concepts of federalism were altered in favor of the Central Government to meet exigencies of the great depression persuaded many people that federalism, as a technique of government in the United States, would rapidly fade away.
Prof. Harold J. Laski, writing under the title "The Obsolescence of Federalism" in 1939, expressed the belief that while it is a suitable technique of government during periods of capitalistic expansion, federalism is a luxury that contracting capitalism cannot afford. Federalism has filed and is dying, he said, not only in the United States but also in Canada, Australia, Germany.
To explain this failure, he argued that “. . . it has become clear the true source of decision is no longer at the circumference, but at the center, of the State. For 48 separate units to seek to compete with the integrated power of giant capitalism is to invite defeat in almost every element of social life where approximate uniformity of condition is the test of the good life."
In more typically American terms, other critics of traditional federalism found their strength in the heritage that endowed promotion "of the general welfare" with an overriding moral as well as constitutional importance. They recognized that, after 140 or more years of national growth, the problems of the "general welfare" required solutions that were in many ways as foreign to the expectations of the Founding Fathers as were the problems themselves.
But the critics of federalism have committed a fundamental error. They have judged it in the light of its controversial dimensions -- the historic spheres of Federal powers, State powers, and judicial interpretation -- in which the weight of supremacy has clearly shifted in favor of the central government. But these changes in jurisdiction, sovereignty, and prerogatives have had little effect on the powers of the States to govern freely in the interest of their citizens.
The vitality of the Federal idea in America has not only survived the crisis in political and economic philosophy of the last three decades; it has also asserted itself in a broad new dimension that has given rise to the greatest growth in State powers and functions in the history of the Nation. A typical example: In the decade from 1950 to 1960, the non-defense expenditures of the Federal Government increased by the relatively modest amount of $6.4 billion -- a growth of about 24 percent. State expenditures during the same period increased by $19.3 billions, from $13.2 billions in 1950 to $32.5 billions in 1960 -- a growth of 146 per cent, or more than six times the growth rate of the Federal Government.
This explosion in the functions and powers of local government is one of the most fascinating and challenging developments in modern U.S. history. Yet it has taken place with so little fanfare and public attention that it remains an area of relative mystery to most Americans. It represents an annual expenditure of immense proportions and involves the States and the Federal Government in joint enterprises of vital national significance. By comparison with more sensational developments in Federal-State relations, however, it has received very little public notice.
This largely unknown and unexplored area of government is what might well be called federalism's "hidden dimension."
Functioning almost as a fourth branch in meeting the needs of the people, this dimension is directly involved in such matters as highways, housing, urban renewal, planning, education, public welfare, hospitals, airports, public health, unemployment compensation, agricultural extension, water and air pollution, and sewage treatment facilities. Yet it has no direct electorate, operates from no set perspective, is under no special control, and moves in no particular direction. It operates sans legislature, sans executive branch, and sans judiciary. It is represented by no policymaking body (although it is developing its own sacred cows). We're not certain even of its cost. Some estimates range as high as $14 billion annually.
The principal framework of this structure is the system of Federal "grants-in-aid." Although traceable back to ante bellum days, the technique of quasi-contractual relationships between the Federal and State governments for Federal aid to State-run programs of social and economic development has grown primarily since 1911. Over the years, Congress has enacted some 73 such programs. Only 14 have been terminated; 59 are still on the books. Grants-in-aid to State and local governments during fiscal year 1964 will cost an estimated $10 billion -- an almost fourfold increase over the estimated cost 10 years ago of $2.7 billion.
It was in 1962 that the U.S. Senate authorized creation of a Subcommittee on Intergovernmental Relations to undertake serious exploration of this ‘Government within government.’ In fulfillment of our warrant to explore the whole area -- to give definition and identity to the hidden dimension, to understand what it is, its potential, and in what direction it is moving -- our subcommittee prepared a voluminous intergovernmental relations questionnaire. It was designed with the help of numerous experts to probe deeply into significant areas relating not only to grants-in-aid but to apportionment, conservation of resources, metropolitan area problems, assignment of tax sources, tax coordination, and payments in lieu of taxes. Its distribution to all governors, State attorneys-general, State budget officers, to 250 State legislative chieftains, 800 school boards, 1,900 county officials, 1,600 city managers, 900 mayors, and 400 academicians and other experts evoked responses ranging from dismay over its length and complexity to heartening demonstrations of closely reasoned collaboration.
The Northern Virginia Sun, one of the more responsible suburban dailies to emerge in recent years, greeted the subcommittee's field inquiries as an opportunity for local officials "to show their stuff." Said the Sun: "If these echelons of government have the capacity to clean away the deadwood of decades and grapple imaginatively with the huge dilemmas of city, town, and county, Congress will be only too happy to hear it."
In showing their stuff, our respondents inevitably raised more questions than they answered. Still, the returns to date from more than 460 State and local officials have given Congress a massive and informed cross-section of grassroots opinion on a scale never before attempted and with a wealth of detail that illuminates broad issues bearing directly on the future of federalism.
General attitudes are always difficult to gage, especially on the basis of multi-itemed questionnaires. But given an awareness of such pitfalls, a careful assessment of the aggregate returns clearly suggests that our participating States and local officers fall into four groups.
The first include all those who reject the present system of Federal-State cooperation and yearn to reestablish firm distinctions between the enumerated powers of the Federal Government and the reserved powers of the States. Numbering approximately 11 percent of the total, this small but articulate group approached the issues raised in our inquiry with a strong allegiance to the concepts of State powers that prevailed in the United States until the mid-1930's.
Closely allied to this group were those whose intellectual inclinations placed them among the States’ righters but whose pragmatic bent persuaded them that some abridgment of traditional State prerogatives and powers, some collaboration with the Federal Government, is desirable and necessary. This group, in general, was far less willing than the first to eliminate or reduce the present degree of Federal involvement at State and local levels.
Most within this classification, comprising 43 percent of the whole, accepted the grants-in-aid device as a means of solving certain common problems, and they did assign a role, albeit somewhat restricted in scope, to the National Government in a number of complex problems facing metropolitan area residents.
The third group accounted for approximately 33 percent of the total. Here we find most of the Governors, State budget officers, some academicians, and a scattering of urban area officials. This group declined by and large to enlarge upon their ideological views but expressed general satisfaction with present methods and trends of cooperative federalism.
The fourth group constituted some 13 percent of the total and included, among others, a significant number of school board members and academicians. In the main, this category adopted a fairly consistent pro-Federal stand in their answers. They strongly supported greater use of the grants-in-aid system; they opposed assumption by the States of certain taxing and financing functions now exercised by the Federal Government. And they assigned to Washington a major role in helping to solve the problems confronting the Nation's metropolitan areas. Over and over again in the responses from this group appears the theme that the State and local governments are unable to cope with the more pressing domestic problems confronting America in the 1960's.
The extremes at both ends of the scale, i.e., the traditional States’ righters and the nationalists, comprise less than a quarter of all the respondents. For this reason, both may be considered atypical. By combining the reluctant with the positives and reexamining their responses to certain key questions, it is possible to sketch the broad outlines of what might be called the majority's implicit consensus about what our Federal system is and what it may become. To join these middle groups, to be sure, blurs the ideological distinctions that separate them, but they are in fact joined by their acceptance of certain practical solutions to common problems.
Extended review of the answers to those questions on which there was agreement among the two middle categories enabled us to piece together the following composite theory of how federalism works and can work in America in the 1960's:
1. Theory and ideological differences aside, the dominant view of Federal, State, and local governmental relations is one that pictured the entire system as integrated in practical matters but with each level attempting to maintain its separate institutional identity and sources of power.
2. The practical functions of government are not neatly parceled out among the three levels; several governmental functions may be undertaken jointly at each governmental level with the result that significant and continuing responsibilities may be exercised by all.
3. Decision making in the intergovernmental process is shared fairly equally among various public bodies in the three echelons, thus preserving a basic principle of our traditional federalism.
4. The administration of programs of common concern are joint undertakings. Such devices as joint boards, joint inspection, the sharing of specialized information and use of another level's technical personnel, reveal the benefits of this collaboration among equals. Competition rather than collaboration, however, is produced when administrative regulations are unilaterally imposed without full consultation with another level's officials and without recognition of the merit of some administrative practices or other jurisdictions.
5. The Federal grant-in-aid is and will continue to be an inescapable and important feature of contemporary intergovernmental relations. It provides a necessary means whereby the three levels of Government can collaborate to fulfill common purposes. If not encumbered with excessive administrative red tape, it can also serve to strengthen State and local governments, since it utilizes the existing institutional framework for administering these activities of common concern.
6. Representative, responsive, and responsible State governments are vital for the proper functioning of American federalism. They collect a sizable proportion of total revenues, directly administer several important governmental services, provide assistance to their local units of government, and serve as crucibles for the development of improved policies and techniques.
7. When properly empowered, financed, and aided, county and municipal governments singly and in voluntary association with one another can meet many of the challenges that ubiquitous urbanization has created.
8. Intergovernmental relations should be viewed primarily as a network of functional, financial, and administrative arrangements that seek to advance the commonweal. Parity with respect to the power positions of the various levels is indispensable for successful collaboration in this area. Inequality undermines the voluntary stimulus that is so essential for any full-fledged cooperative endeavor.
9. Every level has a fundamental duty to preserve the interlevel balance, but a primary responsibility for maintaining this balance rests with Congress. Its past enactments constitute the greatest single force shaping the Federal system under which we live, and its future actions will exert no less an impact.
In the final analysis, the tensions existing within this composite view of American federalism, created by the commingling of conflicting ideals within the confines of a practical solution of shared problems, augur well for the future of our system of intergovernmental relations. American federalism has always been a bold attempt to reconcile stridently conflicting ideas.
And it is most illuminating to note how the protagonists in this debate change sides from time to time, from one historical epoch to the next. None of the great geographical sections of America, nor the major political parties, nor the principal segments of political opinion (liberals or conservatives), nor even the economic interests of the country have pursued consistent policies where Federal-State relationships are concerned. The remarkable ease with which these groupings have shifted positions at various periods of history on this subject provides a dramatic confirmation of the dynamism of the Federal system and its vitality for the future.
If nothing else, it should illustrate the futility of political platitudes and the danger of shibboleths. Certainly, labels and slogans tend to lose their meaning when we realize that in the crucible of practice, the ideological tenets of General Motors 10 years ago may well be labor's central argument 10 years hence. It is certainly historical fact that the States’ rights dogma of yesterday's liberals is the staple of the conservative case today.
Thus, it seems to me, we do not validly reflect the fundamental vitality of American federalism to argue that it is dead because it is changed or that it will die because of its advocates. The system's real test lies in how effectively it is meeting the needs of the American people today. It cannot be measured against an abstract formulation of the past or of the future.
President John F. Kennedy understood this very well. "It is the best system yet devised," he said shortly before his death, "but we have to make it work * * * in a common effort to reduce unemployment, and to eliminate poverty among our people; to make our urban centers a better place in which to live; to guarantee equal opportunity in all fields; to conquer mental retardation and mental illness; to keep this country strong; to keep it in a position where it can fulfill its responsibilities to all the free world."
History may one day include among the greatest achievements of the New Frontier the powerful momentum evoked by its young leader to harmonize the rational design of the founders with the kind of pragmatic action necessary to exorcise all those specters that still haunt our own society -- and the world. In meeting this challenge President Kennedy summoned us to begin anew; President Johnson has committed us to continue. The quest embodies our best hope for achieving a yet more perfect union.