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Episode Description
As America approaches its 250th anniversary, America at 250: Due Diligence turns to one of the oldest unsettled arguments in American life—not whether to have a national government, but how much of one. Where should power actually live: close to the people, in the states and towns where most Americans spend their lives, or at the center, in Washington?
The argument was there before the ink was dry. Inside the Constitutional Convention of 1787, James Madison pushed for what became known as the "federal negative"—a congressional veto over state laws—and lost. The states were too protective of their authority and too wary of a powerful national government to surrender that kind of control.
What emerged instead was what Madison called a "compound republic": a national government strong enough to provide for defense, regulate trade and raise its own revenue, layered over states that retained broad responsibility for the everyday business of governing. It was a balance built through compromise—including compromises that preserved slavery and embedded protections for it within the constitutional order.
That balance has been renegotiated ever since, almost always under pressure. In 1937, after the Supreme Court struck down several New Deal programs, Franklin Roosevelt proposed adding as many as six justices to the Court. His plan failed, but during the same period the Court began upholding major economic regulations and federal programs, helping establish a much broader understanding of national power.
In 1962, federal marshals and troops enforced a court order allowing James Meredith to become the first Black student to enroll at the University of Mississippi. In 1965, Lyndon Johnson urged Congress to pass the Voting Rights Act, providing the strongest federal enforcement of the Fifteenth Amendment since Reconstruction. And in 1981, Ronald Reagan stood on the inaugural platform and declared that the federal government did not create the states—the states created the federal government.
Today, the same argument is live again: in clashes over immigration enforcement and the deployment of federal forces within states; in disputes over who controls election administration; in mid-decade redistricting and gerrymandering battles; and in the narrowing reach of federal voting-rights protections after Shelby County v. Holder and subsequent Supreme Court rulings.
To trace the original architecture, where it has been tested and where it stands now, this episode brings together three very different voices: a constitutional law scholar who argues that most domestic governing was designed to remain close to home; a political scientist who examines what has happened when fundamental rights were left to the states to protect; and a constitutional lawyer who contends that the federal government has moved far beyond the limited, enumerated powers the Constitution grants it.
Together, they wrestle with a question that runs through 250 years of American history: Is federalism a safeguard the founders wisely built into the Constitution to prevent any one level of government from becoming too powerful—or can it become an excuse, dressing the denial of rights in the language of local self-government?
Federalism can be both. The fight is over which one it is.
Hosts
Steve Herman
Steve Herman is a veteran journalist and former White House Bureau Chief for Voice of America. He brings decades of reporting experience to America at 250: Due Diligence, helping guide the series through the historical, political, and institutional questions that have shaped the United States.
Website: Steve Herman
X: @newsguyUSA
Bill Bernardoni
Bill Bernardoni is the founder of Bernardoni Media & Marketing and co-host of America at 250: Due Diligence. His work focuses on building, producing, and distributing podcasts and radio programs that bring serious conversations to broad audiences.
Website: Bernardoni Media & Marketing
Blog: The Bernardoni Brief
Guests Featured in This Episode
Randy E. Barnett
Randy E. Barnett is the Patrick Hotung Professor of Constitutional Law at Georgetown University Law Center and faculty director of the Georgetown Center for the Constitution.
A former felony prosecutor in the Cook County State's Attorney's Office, Barnett argued the medical-marijuana case Gonzales v. Raich before the U.S. Supreme Court and was one of the lawyers representing the National Federation of Independent Business in its constitutional challenge to the Affordable Care Act.
He is the author or co-author of numerous books on the Constitution, including Restoring the Lost Constitution: The Presumption of Liberty and The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit. In this episode, Barnett explains the original architecture of Madison's "compound republic"—and why he believes national authority has expanded far beyond the domestic role the founding generation envisioned.
Faculty Profile: Randy E. Barnett — Georgetown Law
Randy Barnett Website
His Latest Book: Our Republican Constitution
Marvin P. King Jr.
Marvin P. King Jr. is associate professor of political science and African American studies at the University of Mississippi. His teaching and research focus on American federalism, African American politics, political inequality and the politics of the American South.
King teaches a course on American Federalism and brings that perspective to the central question of his segment: What has historically happened to voting rights when their protection was left primarily to the states—from the collapse of Reconstruction and the rise of Jim Crow through the Voting Rights Act and the aftermath of Shelby County v. Holder?
Faculty Profile: Marvin King — University of Mississippi
Ilya Shapiro
Ilya Shapiro is a senior fellow and director of constitutional studies at the Manhattan Institute and a contributing editor of City Journal. He previously served as executive director and senior lecturer at the Georgetown Center for the Constitution and as a vice president of the Cato Institute.
Shapiro has filed more than 500 amicus curiae briefs at the U.S. Supreme Court and is the author of Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court and Lawless: The Miseducation of America's Elites.
In this episode, he argues that power has shifted too far toward Washington, that the federal government no longer consistently behaves like one of limited and enumerated powers, and that a healthier constitutional balance would return more authority to the state and local levels closest to the people.
Profile: Ilya Shapiro — Manhattan Institute
Book: Supreme Disorder
Book: Lawless
X: @ishapiro
Listener Question
As America turns 250, do you think federalism still works as the founders intended—a safeguard that keeps government close to the people and checks the power of Washington—or has it too often become a shield for states to deny basic rights?
When state and federal power collide, who should have the final say?
Join the conversation and share your thoughts through the contact form at RadioFreeAmerica.media.