Introduction
The Federalism of today is not the Federalism that the founders imagined it. Dual Federalism has evolved into a Cooperative Federalism that often coerces the states in the cooperation due to either retaliatory responses from the Federal government as a dual sovereign or inducements to bring about Federal doctrine by the financial implementation. This vertical federalism does not represent the dual covenantal federalism described in the constitution with enumerated powers. How does an originalism interpretation of the Founder’s version of Dual Federalism (described as other sharing of power by Sovereignties) inform the unlawful act of establishing another shared power by a third supposed Sovereignty that was not allowed with the consent of the people of the United States? President Joe Biden has been kicking around the idea of a signed treaty without the 2/3 senate approval to enter into an agreement with the World Health Organization for a binding agreement of a Pandemic Treaty and enforceable, if not militarily yet, in the court of public opinion. (World Health Organization., 2021) The President is essentially considering giving away the United States Sovereignty through administrative law under the guise of the treaty. In Dual Federalism, where sovereigns share power with a constitutional agreement, there is no room for one party to bring in another sovereignty without the consent of all sovereign parties.
Biblical Worldview
A biblical worldview of Federalism is a covenantal view of governance derived from the people's consent through a republican form of government. In Christopher Duncan’s work on Covenant Connection, he links the definition of the word covenant with federalism, “The Latin foedus, which serves as the root for the English federal, translated originally as a covenant. Covenant discourse, as opposed to liberal or rights-based discourse, yielded what Lutz calls in its later American form communitarianism. In its theological sense, a covenant was, according to Torrance, a promise binding two people or parties to love one another unconditionally.” (Duncan, 2001, p. 716) One Biblical reason for the sharing of power is that mankind is sinful, and the temptation to rule or grab all power for selfish reasons is too great, so we need not put the temptation in front of him. (Ephesians 2:1-3)1 And you hath he quickened, who were dead in trespasses and sins; 2 Wherein in time past ye walked according to the course of this world, according to the prince of the power of the air, the spirit that now worketh in the children of disobedience: 3 Among whom also we all had our conversation in times past in the lusts of our flesh, fulfilling the desires of the flesh and the mind; and were by nature the children of wrath, even as others. (King James, 1769) Not only is man sinful but he need not lead himself with the obstacle of temptation. Even Jesus taught his disciples to pray about being led, not into temptation, in the realm of God’s Kingdom. (Matthew 6:9-13) 9 After this manner, therefore, pray ye: Our Father which art in heaven, Hallowed be thy name. 10 Thy kingdom come. Thy will be done in earth, as it is in heaven. 11 Give us this day our daily bread. 12 And forgive us our debts, as we forgive our debtors. 13 And lead us not into temptation, but deliver us from evil: For thine is the kingdom, and the power, and the glory, for ever. Amen. Watts reports that renowned scholar on Federalism, Daniel Elazar’s definition of Federalism is simplified through his years of synthesis and is “a combination of self-rule plus shared-rule in a contractual link providing for power sharing.” (Watts, 2000, p. 161) As Dr. Emily Ferkalak discloses in her lecture, “Madison in Federalist 51 describes American federalism. Thus, quote, 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 is subdivided among distinct and separate departments. Hence, a double security arises for the rights of the people. The different governments will control each other at the same time that each will be controlled by itself.” (Ferkalak, 2023) There is a need to set up power checkpoints in the constitution due to the exceeding sinful of mankind as demonstrated from the Scripture and throughout history. Ferkalak continues by describing dual federalism, “Under the theory of dual federalism, the state and the federal government, or Co equals each sovereignties power is enumerated and mutually exclusive.” (Ferkalak, 2023)
It is important to note that contractual love or the Greek word for love, “eros,” is not the same as the Greek word “Agape.” Agape is founded in an unconditional sense of I’ll do my part freely without being coerced even if you do not. Eros love is a devolved love that says; I’ll only do my part if you do yours first. The founders needed to realize they were founding in the constitution a form of government that they considered federal or covenantal or of a strong sense of love that mirrors the love of God to humanity by the Agape spirit. God first loved us unconditionally as a world—(John 3:16) (I John 4:19).
Dual of Federalism Leaves no Room for the WHO’s Sovereignty Over the U.S.A.
The biblical idea of dual federalism makes this power-sharing significant for the world since it is based on the Biblical-founded doctrine of hamartiology and anthropology and does not start from a test product position just off the shelves fresh from 1787.
Because the founding Fathers were themselves shaped by the Reformation, they had a specific Biblical understanding that had its authority in Scripture instead of church tradition. (Chebankova, 2009, p. 316) One such failed attempt at Federalism that drew its knowledge from an Orthodoxy Religion was Russian Federalism. Russian Federalism was based upon a doctrine that drew authority more from canonical church law at its source of authority. It has struggled to distinguish republicanism and democratically popular sovereignty-derived federalism. (Chebankova, 2009, p. 316) Their constitution has been faced with an understood power structure that is very centralized and more so as time marches on.
President Biden’s consideration of this Pandemic Treaty of the World Health Organization invites an intrusion on the check and balance of Dual Federalism. One similar Treaty that did not pass ratification with a two-thirds requirement of the Senate was the Treaty involving a universal agreement that made Disability Rights a Universal right. As Barsky notes, “the U.S. Senate refused to ratify it on December 4, 2012.” (Barsky, 2022, p. 347) Barsky explains why the Senate refused to ratify on the grounds of national sovereignty and its constitutional understanding of that shared sovereignty between Federal and State in Dual Federalism.
One reason that this just causes, and probably well-intended treaty seemed so reasonable to Barsky to pass is because the Dual federalism of the Constitutional Text, where enumerated powers are divided out in watertight compartments, has evolved to a Cooperative Federalism instead of a dual federalism of competition and holding each other accountable type of federalism. Kincaid calls this the eclipse of dual Federalism by One-way cooperative federalism.
Numerous and powerful political forces have vested interests in the contemporary idea of cooperative federalism, which prioritizes an obligation of states to cooperate with federal policy initiatives in a system that is essentially prefectorial administration. These forces make any construction or reconstruction of dual federalism impossible, wherein states exercise substantial sovereignty. Even if the U.S. Supreme Court rendered more state-friendly rulings, those rulings would negligibly affect the balance of state-federal power. (Kincaid, 2017, p. 1061)
Barber would argue that this claim that delusion of dual federalism as the strong form of government was obsolete as soon as the ink dried because one needed to appeal to the Federal Branch to appeal any power misstructure and leaves one believing that there was no horizontal federalism since the beginning. His argument is a week since the self-defeating argument is self-defeating, given that the United States has the longest-lasting constitution in the history of the world. The self-defeating supposed argument is self-evidently defeated. (BARBER, 2014, p. 3) Horizontal Federalism seeks to divide the powers between the Federal government and the States as opposed to veridical federalism, that the power of one of the sovereigns diminishes over time. There is little doubt that the United States supposes itself to be a purely Dual Federalistic government. Still, there is a matter of practice and what is allowed that determines the government system. As is the case of Russia, some may be fooling themselves into thinking that the United States has not, at the very least, seen a climb in corporatism versus comparativist federalism, and it’s usually a one-way street of cooperation: vertical. Columbia Law review documented the slide from Comparatist to Corporatism in the 1930s. Columbia Law review documents, “In recent cases, the Supreme Court has sanctioned federal-state cooperation to avoid this. Where the federal government does not exercise power in terms granted to it, the field for such cooperation does not exist since state consent cannot amend the Constitution. It does exist, however, where Congress operates under a formal grant of power which the Court denies because it feels that the type of regulation ought to be left to the states.” ("Dual Federalism" Today.1938, p. 143)
Little has been untouched by the courts in balancing these powers of sovereignty amongst friends. Ablavsky documents the new way to bypass this balance of Federal vertical centralization is for states to begin recognizing cooperation as a means of carrying out responsibilities with the protection of citizens and sanctioned through the states. (Ablavsky, 2019)
Boeckelman brings new tension when he considers the Federalist System in the Global Economy, “Substantively, the possibility exists that international agreements could prohibit some state economic development policies that subsidize local manufacturers or promote foreign investment as restraints on trade.” (Boeckelman, 1996) President Joe Biden’s consideration could also bring harm to the separate but sovereign states that the union stands good for in an agreement of covenantal federalists’ agreement. He needs to beg not to implement such hardship on the states unnecessarily and unethically.
Conclusion
How does an originalism interpretation of the Founder’s version of Dual Federalism (described as other sharing of power by Sovereignties) inform the unlawful act of establishing another shared power by a third supposed Sovereignty that was not allowed with the consent of the people of the United States? The Founders understood, and judges have documented for a long time the founders’ intentions of a Dual Federalism form of government. Even as recently as Justice Clarence Thomas would even testify to the fact,
But what has escaped the notice of late, and perhaps at one time for very good reason, is that the framers established another structural safeguard for individual liberty: federalism. Federalism sometimes has been used to justify the most terrible tragedies ever inflicted by Americans upon Americans, slavery and segregation. For that reason, the idea of state sovereignty has acquired a negative connotation. Nonetheless, federalism, per se, is not an evil or a good, it is just a construct, just as the separation of powers is a construct-they are both means that serve certain ends. They are not ends in themselves. It was slavery and segregation, and those who perpetuated wrongs, not federalism that perverted the American system of government for their own ends. Rightly understood, federalism can advance the same goal as that pursued by the separation of powers, or the enumeration of limited. Federal powers, or the Bill of Rights for that matter. I suggest that all of these mechanisms have the same purpose: to protect individual liberty and the private ordering of our lives. (Why federalism matters, 2000, p. 234)
One can only hope he is sitting on the Bench with much persuasion as this treaty threatens American sovereignty and our Dual Federalism covenant.
References
"Dual Federalism" Today. (1938). Columbia Law Review, 38(1), 142-152. 10.2307/1116554
Ablavsky, G. (2019). Empire states: The coming of dual federalism. Yale Law Journal Co.
BARBER, S. A. (2014). DEFENDING DUAL FEDERALISM: A SELF-DEFEATING ACT. Nomos, 55, 3-21. http://www.jstor.org/stable/24220372
Barsky, B. A. (2022). DUAL FEDERALISM, CONSTITUTIONAL OPENINGS, AND THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES. The University of Pennsylvania Law School.
Boeckelman, K. (1996). Federal Systems in the Global Economy: Research Issues. Publius, 26(1), 1-10. http://www.jstor.org/stable/3330753
Chebankova, E. (2009). Russia's Noncovenantal Federalism: Past and Present. Journal of Church and State, 51(2), 312-340. 10.1093/jcs/csp066
Duncan, C. M. (2001). The Covenant Connection: From Federal Theology to Modern Federalism. Edited by Daniel J. Elazar and John Kincaid. Lanham, MD: Lexington Books, 2000. 352p. $75.00. American Political Science Review, 95(3), 716-717. 10.1017/S0003055400500045
Helms School of Government (Producer), & Ferkalak, D. E. (Director). (2023, March 20). Lecture One: Theories of Federalism. [Video/DVD] Lynchburg VA: Liberty University.
Kincaid, J. (2017). THE ECLIPSE OF DUAL FEDERALISM BY ONE-WAY COOPERATIVE FEDERALISM. College of Law, Arizona State University.
King James. (1769). King James Bible . Oxford University Press.
Watts, R. L. (2000). Daniel J. Elazar: Comparative Federalism and Post-Statism. Publius, 30(4), 155-168. http://www.jstor.org/stable/3330936
Why federalism matters (2000)—the students of the Law School of Drake University.
World Health Organization. (2021). Public health round-up. World Health Organization. 10.2471/BLT.21.010521
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