In 1995, Michigan high school student Jennifer Gratz applied for admission to the University of Michigan. She was turned down despite being rated by the school as “well qualified” for admission, while many minority applicants with lesser qualifications were admitted to the school because of the University’s admissions policy that favored certain races. Gratz sued the school, charging that the University of Michigan’s policy violated the 14th Amendment to the United States Constitution. Her case, along with a similar one against the University of Michigan’s law school, went all the way to United States Supreme Court. While Gratz won her specific lawsuit, the Court in Grutter v. Bollinger (2003) ruled that “race-conscious admissions programs” do not violate the Constitution so long as such policies are narrowly tailored to foster “student body diversity,” allowing the University to continue its discriminatory policy.

The Grutter decision energized Gratz to try and stop the University of Michigan from using race in any way in its admission process. She spearheaded a drive to put an initiative on the recent election ballot that would prohibit so-called “affirmative action” programs that give preferential treatment to individuals based on their race, gender, color, ethnicity or national origin. Despite a vigorous opposition from the administration of the University of Michigan, the people of Michigan passed the Michigan Civil Rights Initiative by an overwhelming margin, 58 to 42 percent.

The vote represented a direct rebuke of the Supreme Court’s abominable decision in Grutter. Justice O’Connor admitted in Grutter that “[a] core purpose of the 14th Amendment was to do away with all governmentally imposed discrimination based on race,” but she and her colleagues decided that racial preferences are constitutional anyway, so long as such “race-conscious admissions policies” are “limited in time” – arbitrarily suggesting that 25 years should suffice. In her concurring opinion, Justice Ginsburg cited for authority a treaty never ratified by Congress, the “Elimination of All Forms of Discrimination against Women.”

Rejecting the plainly irrational and unconstitutional decision in Grutter, the people of Michigan employed one of the primary checks on government power instituted by our founders through the Constitution: federalism. The founders intentionally created a dual system of government in which, as James Madison stated in Federalist #45, “[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” Thomas Jefferson called the principle of federalism, which is enshrined in the 10th Amendment to our Constitution, the “foundation of the Constitution,” which, if not heeded, would lead to a federal government with limitless power.

The purpose of dividing governing responsibilities between the federal and state governments was to protect the rights of the people from encroachment by either level of government. As Alexander Hamilton explained:

“Th[e] balance between the National and State governments … is of the utmost importance. It forms a double security to the people. If one encroaches on their rights they will find a powerful protection in the other. Indeed, they will both be prevented from overpassing their constitutional limits by a certain rivalship, which will ever subsist between them.”

Michigan joined California and Washington as the latest state to restrict racial preferences, but a resurgence of federalism is happening in other important areas, as well. For example, in this election, nine states passed ballot measures restricting the government power of eminent domain, a direct response to the Supreme Court’s 2005 decision of Kelo v. New London. The Fifth Amendment to the U.S. Constitution forbids government from taking private property for “public use” without just compensation. For centuries, “public use” has been understood as projects for the good of the public as a whole, such as roads, railroads and military bases. Yet, the Court in Kelo redefined “public use” to include economic development, meaning that governments could take a person’s land for private commercial enterprises.

Kelo has incited a major backlash in the states against this blatantly unconstitutional ruling, with 35 states so far passing laws or amendments to their state constitutions forbidding state and local governments from taking land unless it is for an actual public use as it was traditionally defined. The reaction fulfills James Madison’s prediction in Federalist # 46 that “ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm.”

Rulings like Grutter and Kelo are cause for general alarm in the states because they constitute serious abuses of federal power by the federal courts. Madison said it would be “madness” for the federal government to attempt to encroach upon the states’ powers because the states could throw up “very serious impediments” to federal actions which “the federal government would hardly be willing to encounter.” While political observers may have scoffed at this notion in the past, the people of the states are again discovering the power of state action to protect their God-given rights against federal usurpation.



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