As the delegates to the Constitutional Convention left Philadelphia in 1787, Benjamin Franklin was asked, “Well Doctor, what have we got, a republic or a monarchy?” “A republic if you can keep it,” Franklin replied. A republic, with a federal system dividing power between the state and national governments. Yet with government growing by leaps and bounds, it is time to revisit that question as our fair constitutional republic has morphed into a leviathan state that controls what we consume.

James Madison, the fourth President of the United States and the primary architect of our Constitution, described the relationship between the federal government and the states this way: “The powers delegated by the proposed Constitution to the federal government are few and defined,” Madison wrote in Federalist 45. “Those which remain in the State governments are numerous and indefinite.”

Those powers delegated to the federal government are clearly spelled out in Article I, Section 8 of the Constitution. They include the power to raise and support armies, maintain a navy, and coin money among others – a remarkably modest scope of authority when compared to how the federal government of today injects itself into our daily lives.

What of those powers not granted to the federal government? The 10th Amendment to the Constitution provides the answer: “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.” To statesmen like Madison and Thomas Jefferson it was this amendment that contained the most important text in the Constitution, for it provides explicit acknowledgement of the fact that the powers of the federal government are limited and that the states comprising the Union possess sovereignty.

Contrary to the intent of the Founders, Jefferson’s “chains of the Constitution” used to bind the actions of federal bureaucrats have been transformed into silly string. Since the end of the Civil War, politicians in Washington – aided and abetted by the Supreme Court – have paid little attention to the 10th Amendment. Standing in this tradition of steady erosion of respect for states rights’, today the federal government proclaims the authority to dictate policy – from abortion, to medical marijuana, to euthanasia – to the states. The national 21-year-old drinking age is an example of another of these federal power grabs that would have astonished and disturbed people like Madison and Jefferson.

With the exception of Prohibition, throughout American history the issue of the drinking age was left to the states. In 1984, this traditional landscape was radically altered by the passage of the National Minimum Drinking Age Act. The legislation required that all 50 states raise their minimum drinking age to 21 or risk losing a portion of federal highway funding.South Dakota, a state that allowed 19-year-olds to buy alcohol, challenged the law in federal court. The state argued that by essentially blackmailing South Dakota into raising its drinking age, Congress had unconstitutionally violated state sovereignty under the 10th and 21st Amendments. The Supreme Court rejected South Dakota’s argument in Dole v. South Dakota (1987), ruling that Congress’ actions were permissible because they both promoted the general welfare and were not unreasonable.

But where does the Constitution authorize such federal activism? In Dole the federal government argued, and the Supreme Court agreed, that Congress has the authority to attach conditions upon the States’ receipt of federal highway funds. Ironically, one will search the Constitution in vain for a provision that authorizes the federal government to play any role in developing our nation’s highways (a state prerogative). It follows from this that Congress has no business blackmailing the states with funding it is no legitimate position to collect in the first place.

As poor as the Supreme Court’s ruling in Dole squares with a reasonable interpretation of the Constitution, it does even worse when one considers what the Founders originally intended. The Constitution was (and still is) a compact among sovereign states. The states created the federal government; the federal government did not create the states. The federal government is thus an instrument of the states; it is not their ruler. Yet this is precisely how Washington acts when it illegitimately asserts the authority to dictate the drinking age to the states.

In accordance with the 10th Amendment, determining an appropriate drinking age is a power that ought to rest the states. No matter how laudable Congress’ motivations, the integrity of our system of federalism demands it. After all, the road to tyranny is paved with good intentions. ô

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