COVID bill won’t let states use funds to reduce taxes; 14 states sue

Written by William C. Duncan

April 23, 2021

Fourteen states have sued to challenge a provision of the recent COVID relief package that provides money to the states but prohibits the states from using the aid to lessen the tax burden on their citizens. The states’ argument arises from the aspect of America’s civil religion known as federalism. But the idea of federalism has much of its roots in actual religion.

Federalism, the division of power between the state and national governments, is a core feature of the American Constitution. The Constitution lists (enumerates) specific powers of the national government. That leaves other powers to be exercised either by the states or perhaps by no branch of government at all (reserved “to the people,” as the 10th Amendment puts it).

Where did this idea come from? Obviously, the states had lots of experience with self-rule from the colonial and confederation experiences. The challenges of the loose relationship between the states during the time of the Articles of Confederation also spurred the decision to clarify relationships between the states and the national government.

This experience shaped the specific contours of federalism in the American Constitution, but the genesis of the concept comes from another, possibly surprising, source.

“The idea of federalism was initially a religious one.” This is the conclusion of an eminent political scientist, Daniel Elazar, of Bar-Ilan University in Israel and Temple University in Pennsylvania. At Temple, Elazar was the director of the Center for the Study of Federalism.

Elazar explains: “Federalism is based upon the organization of human affairs through covenants, that is to say, through mutually agreed, morally informed pacts that pledge the moral commitment of the parties to establish and maintain certain relationships and the structures needed for doing so.”

This is an apt description of the federalist arrangement in the U.S. Constitution. Federalism maintains the relationship of the sovereign federal government with the sovereign state governments, using the structures established by the Constitution (e.g., federal elections, the 10th Amendment, Article V convention for amending the U.S. Constitution, etc.) that are needed to maintain that relationship.

Elazar writes that in the creation of the Constitution in 1787, the federalism established by the Framers “followed very much the ancient federalism of the Bible, whereby all of the constituent parts shared a common constitution and laws for those matters that were critical in defining the polity as a whole, but were self-governing constituent units (states) in all of the details. Moreover, the states shared in shaping the national constitution and laws on a continuing basis.”

Elazar says, though, that federalism had ties not only to religious concepts but to the specifically religious experience of the American colonists.

He explains, “When the American founders developed a modern federation in 1787, they drew … directly from the experiences of the North American colonies, principally but not only New England.” He specifically points to “the Puritan Massachusetts Bay Colony, established in British North America in 1629,” as the site of “the fullest translation of the federal theology into practical political and social life.” He says John Winthrop, the colony’s governor, had framed a definition of liberty that would have enduring influence. According to Winthrop, there were two types of liberty – federal and natural. “He described the former as liberty proper, involving the freedom of humans to live according to their covenants and the latter, as an improper liberty of doing whatever one pleases unless blocked by another.”

This religiously informed idea of federal liberty is evident in the structure of constitutional federalism with its clear enumeration of valid powers and limitations and its inherent rejection of broad, unimpeded powers in either the state or national government.

Sometimes politicians and commentators wonder why religious freedom deserves special protection in the U.S. Constitution. One justification is that many aspects of our constitutional system – even secular aspects like federalism – have religious roots. Recognizing the contribution that religious ideas and people of faith have made to our liberty and our system of government can increase understanding and appreciation of the unique status of religious freedom in the Constitution.

Supreme Court rules in favor of Catholic foster agency but leaves big questions for later

Supreme Court rules in favor of Catholic foster agency but leaves big questions for later

The U.S. Supreme Court issued a significant religious freedom decision this morning, with all the justices concluding that the city of Philadelphia violated the constitutional rights of a religious foster care agency, Catholic Social Services, when it “stopped referring children to CSS upon discovering that the agency would not certify same-sex couples to be foster parents due to its religious beliefs about marriage.”

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