This is an interesting, important article. Of course, a great loss to federalism is the Seventeenth Amendment, which eroded protection of state sovereignty. As the United State government has deprived the states of their right to select national senators, States have similarly deprived cities and towns of their right to select state senators. We now have, for most practical purposes, top down government at all levels.
I do not understand how court decisions such as Lochner v. New York were made or allowed to stand. Originally the federal government was the creature of the states; now it tells the states what they can and cannot do.
Bork says that confining Congress to the enumerated powers of Article I, Section 8 is dead and cannot be revived. He says that the public wants a large and largely unrestrained national government, one capable of giving them what they want. While this thought is detestable, it is understandable. The basic question is: Should a lower governmental entity be sovereign with respect to its internal affairs? The founding fathers said it should. Today it is not.
At its most fundamental level: Should a family be free to govern itself and control its property or should society make laws restricting it? Originally it was free. Today many restrictions are placed upon it. Should the state intervene if a child is physically abused by his father, a wife by her husband? I asked several women this question. All responded that the state has a right and obligation to stop the abuse. â€œYou just have to protect the children.â€ they said. On the other hand, once the camel gets his nose in the tent, so to speak, where does it stop? Who defines abuse? Is having incest with a child abuse? Of course. Striking a child? Yes. Depriving a child of food? If extended. But what about yelling at a child? Looking askance? Telling a child what he did was stupid? Not allowing him to spend his allowance the way he wants? Home schooling him? Telling him how to dress? On the national scene we have civil rights laws, labor laws and the Americans with Disabilities Act. How far ought the reach of Government extend?
I do not know the answers. I am struggling to find some guiding principle. However, it does seem that we need more leadership and fewer laws. More of: â€œCome follow me. Do what I do.â€ And less of: â€œWeâ€™ll take care of you and make sure that you do everything right, just give us your money.â€