Our Vision

Building an America where freedom, opportunity, prosperity, and civil society flourish.


BannerWingLeft Become a Member Today BannerWingRight


Member Questions of the Week of June 14, 2010

Donna Downing of Shingletown, CA asks: “What are the rights of the states compared to what is in the Constitution? Do we as states have more power than the federal government?”
OUR ANSWER: Those who drafted and ratified the U.S. Constitution wanted to prevent all levels of government from exerting too much power. In other words, they sought not only to limit the power of Congress, but also to constrain the powers of the states. In fact, believe it or not, the federalist system they devised — a system of checks and balances that divides state and federal authority — was as much designed to correct state abuses as federal: At the time of the Constitutional Convention, the states were enacting trade barriers and otherwise violating the rights of their citizens. Still, the Constitution itself addresses the federal government. The document creates a national government with a legislature of limited and enumerated powers. Article I allocates to Congress “[a]ll legislative powers herein granted.” Some powers, then, remain beyond Congress’ reach. The Constitution’s Necessary and Proper Clause similarly grants Congress the power “[t]o make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” That is to say, Congress has only the power the Constitution explicitly grants it. Whatever powers are not granted to the national legislature are reserved to the states. As Federalist #45 states, The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite.

Under the federalist system, the question of who has more power ought to be moot: Each level of government should have the amount of power required to fulfill its responsibilities — and the power to restrain the other levels from abuses — but no more. Sadly, this question has become highly relevant, as the federal government has passed intrusive legislation like the most recent health care package. As this legal memo makes clear, the individual mandate to buy health insurance is unprecedented and unconstitutional. That’s why some states, like the state of Virginia, have sued the federal government over this issue. In an exclusive Heritage interview, Virginia Attorney General Ken Cuccinelli said, “We are doing what the founders expected states to do. We are a check in the checks and balances system that was laid out by James Madison.”

Laura Stern of Nanuet, NY asks: “Do you think the Obama administration could shut down conservative talk media with a revised (version) of the Fairness Doctrine?”
OUR ANSWER: Bottom line? Yes. The legislation that empowered the Federal Communications Commission to implement the first Fairness Doctrine has never been rescinded. The FCC still has the power to reinstate a Fairness Doctrine,and that Fairness Doctrine 2.0 could effectively silence some conservative critics. Certainly, the original Fairness Doctrine did nothing to improve — and much to detract from — journalistic coverage of controversial issues. When FCC administrators implemented it in 1949, they hoped it would forcibly create “reasonable opportunity for discussion of contrasting points of view on controversial matters of public importance.” But, by 1987, the FCC itself determined the Fairness Doctrine actually inhibited the presentation of controversial issues — “to the detriment of the public and the degradation of the editorial prerogative of broadcast journalists.” Since then, the Fairness Doctrine has no longer been enforced — and has fallen widely out of favor. President Obama has said he will not reimpose the old Fairness Doctrine — but he could still reincarnate it as “localism,” a set of rules that empower community advisory boards to dictate programming. Perhaps, more than anything else, past and present controversy about the Fairness Doctrine reveals the importance of a free marketplace of ideas. As cable TV programs and Internet news sites attest, journalists already produce news from all angles. As long as different audiences seek different perspectives, journalists will continue to generate a variety of content. The government doesn’t need to involve itself. And, fortunately, the FCC does not have the power to regulate cable or Internet. Still, that doesn’t keep them from making some pretty ridiculous proposals. Fans of free speech must always remain vigilant.

Hemendra Parikh of Munster, IN asks: “How do you propose fixing Medicare and Social Security — the existing contracts?
OUR ANSWER: We tackle this question head-on through our Entitlements Initiative, a part of the Heritage Leadership for America program. To conquer the budgetary challenge entitlements pose, all concerned need to take a number of urgent steps: (1) Congress must create a long-term “discretionary” budget to put entitlements on a level playing field with other budget priorities, (2) Congress must review this budget — which should include long-term costs of entitlement programs — on a regular basis and consider whether younger generations can afford to pay for new benefits for retirees, (3) Congress must transform entitlements — from subsidized benefits to everyone, regardless of need, into real insurance, by which the government spreads risk and protects people against unexpected and devastating occurrences, and (4) Individuals must assume a greater role for their foreseeable retirement needs through personal savings and insurance. To read more about the Heritage plan to repair the broken entitlements system, visit the Entitlements Initiative homepage.

Other Questions