By Chief Justice P. Scott Neville, Jr.

In 1788, when the people of the United States adopted the United States Constitution, they accepted that document's establishment of a federal system of government.

In our federal system, the States remain autonomous political entities, each operating directly on its own territory, each State with its own legislature, its own executive, and its own judiciary. The national government reigns supreme only in its assigned sphere.

Before ratification, many citizens opposed the proposed constitution on grounds that it allocated too much power to the national government. The anti-federalists feared that a strong national government, based far from many of the States, would become an aristocratic government not responsive to the needs of most citizens. Bryan K. Fair, Federalism by Deception: The Implied Limits on Congressional Power, 62 SANTA CLARA L.REV. 545, 556-59 (2022) (hereinafter, Fair).

James Madison addressed the fears that the proposed constitution would take too much power away from the States. He said:

"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. . . . The powers reserved to the several States will extend to all the 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 State." The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961)

The people might have rejected the proposed constitution if the proponents had not promised that a bill of rights would protect individual liberties and the autonomy of the States. The tenth amendment, formally adopted as part of the Bill of Rights in 1791, succinctly provides:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The United States Supreme Court explained:

"The Amendment expressly declares the constitutional policy that Congress may not exercise power in a fashion that impairs the States' integrity or their ability to function effectively in a federal system." Fry v. United States, 421 U.S. 542, 547 n. 7(1975).

Later, the court added that under the tenth amendment, "there are attributes of sovereignty attaching to every state government which may not be impaired by Congress." National League of Cities v. Usery, 426 U.S. 833, 845 (1976).

The Federalist Papers sought to persuade citizens to adopt the proposed constitution with its expansion of national government from the weak central government set up in the Articles of Confederation. See Fair, 549-53. A federalist, then, was one who advocated a strong national government.

But by the twentieth century, those who invoked federalism usually did so to emphasize the autonomy of the States. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 572 (1985); Gregory v. Ashcroft, 501 U.S. 452, 458 (1991).

Federalism, thus, concerns the proper allocation of power between the States and the national government.

Our system of dual governments imposes some costs. The national government's executive branch includes departments and agencies with one set of rules and enforcement procedures, while State departments and agencies have separate rules and enforcement procedures involving many of the same issues covered by the national agencies.

The United States Congress created an Environmental Protection Agency, and the Illinois General Assembly separately created the Illinois Environmental Protection Agency. The United States Department of Justice has rules to protect civil rights, and the Illinois Department of Human Rights has another set of rules and procedures to protect the civil rights of the people of Illinois. The partial redundancy increases the costs people pay to protect their environment and their civil rights.

Also, the federal system regularly invites expensive litigation about whether the national government has asserted powers over the States in excess of the powers assigned to the national government by the US Constitution. The federal system similarly invites expensive litigation on issues of whether the State has impermissibly enacted laws concerning matters exclusively under the jurisdiction of the national government.

James Madison argued that the redundancy itself helped protect the people:

"In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself." The Federalist, No. 51, p. 323.

The United States Supreme Court adopted Madison's reasoning:

"The constitutionally mandated balance of power between the States and the Federal Government was adopted by the Framers to ensure the protection of our fundamental liberties." Atascadero State Hospital v. Scanlon, 473 U. S. 234, 242 (1985).

I see three primary benefits from our federal system.

First, as Justice Brandeis pointed out in his dissent in New State Ice Co. v. Liebman, 285 U.S. 262, 386-87 (1932) (Brandeis, J. dissenting), "It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."

Illinois right now, with the Pretrial Fairness Act, is a kind of laboratory for the nation, experimenting with a system of pretrial detention without bail. Instead, the defendant remains in jail pending trial only if the State proves him or her dangerous; if the State does not prove dangerousness, the jail must release the defendant, regardless of the defendant's financial resources.

Second, the people of each State benefit because the States can respond, better than the national government, to local concerns affecting many of one State's residents, while affecting other States very little. Lobster trap regulation may matter a great deal to residents of Maine while affecting Illinois residents very little.

Again, the United States Supreme Court made the point: the federal structure "assures a decentralized government that will be more sensitive to the diverse needs of a heterogenous society." Gregory v. Ashcroft, 501 U.S. 452, 458 (1991)

Third, the national government can restrain the abuse of power by State governments, and State governments can, to some extent, restrain abuses by the national government.

Alexander Hamilton argued that the federalist system would provide a bulwark against "the attempts of the government to establish a tyranny." The Federalist No. 28, pp. 180-181.

Consider, for example, the possibility of a tyrannical group, like the Ku Klux Klan, coming to dominate one State's legislature.

Under our federal system, State governments share with the national government the duty to protect the rights of the people they govern and to oppose the abuse of power. All of us who serve in the government of the State of Illinois, whether in the legislative, executive, or the judicial branch, fail to fulfill our duties in this federal system if we refuse to exercise our autonomous power to act in the interests of the people of the State of Illinois, to protect the people's civil rights, and to protect the people from the abuse of governmental power.