A misinterpreted federalism narrative fuels more misinterpretation of net neutrality

A number of state legislatures are ramping up for their legislative sessions where they will pass bills addressing various matters from funding their governments to other state government operational issues to civil rights to fighting crime. I have been giving some thought to the sovereignty of states, to these so-called laboratories of democracy and I am starting to question just how sovereign states are? As I read between the four corners of the U.S. Constitution, I am at a point where I don’t believe states were meant to be sovereign. Instead, states are merely administrative lordships existing to better manage the population, manage the extraction of resources, and convert citizens into tax coin. The U.S. Constitution makes clear that the extent of their powers is set by the federal government, not the other way around, and the regulations of state powers, in my mind, eliminates any claims to sovereignty.

The Tenth Amendment of the U.S. Constitution is usually referred to when describing the extent of state sovereignty. It reads:

“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.”

The Tenth Amendment reads like a “shifting screen”, where the federal government via legislation passed by the Congress or changes in how the administrative states interprets its rules, can determine the amount of power it will either delegate or take back. We have seen over the last 85 years how the federal government has used the U.S. Constitution’s commerce clause to support laws and extend regulations into social and commercial relationships that on the surface seem confined to a particular state, bakery, or bedroom. With changes in presidential administrations or U.S. Supreme Court membership, we also expect to see changes in this shifting screen as public policy, regulations, or court rulings redefine federal and state powers.

Besides, how sovereign can a state be if, as spelled out in Article I, Section 10 of the U.S. Constitution, it is not allowed to enter into any treaties or alliances with other national governments? How sovereign can a state be if it cannot mint and issue its own coin? How sovereign can a state be if it cannot, without the consent of Congress, assess duties on imports and exports? How sovereign can a state be if it cannot even maintain troops and ships in time of peace?

In the net neutrality debate where a number of states, either through legislation or executive orders issued by their governors, states have made the assumption that promoting how an advanced communications network is to be managed is a power reserved to the states under the U.S. Constitution. The internet, as an advanced communications network, is a platform responsible for moving an increased amount of commerce across state and international borders. As a channel for commerce, its regulation falls under the jurisdiction of the Congress, as determined by Article I, Section 8 of the U.S. Constitution. This alone, in my opinion, invalidates any attempts on the part of the states to use the net neutrality narrative to regulate the internet.

I would go one step further. Net neutrality is a management philosophy stemming from the business judgment of network managers and designers. It would not benefit a network manager to provide the public access to an interconnected global network of computers if that manager blocked its subscriber’s access to certain websites.

Nor would it make good business sense to degrade a subscriber’s experience by slowing down the speed of traffic from a subscriber’s chosen content provider. And given the level of competition between network providers, being transparent about prices and charges that a network manager’s subscribers face not only increases the level of faith subscribers have in a network, but also gives the network manager an edge over other competitors. She would be seen as being considerate to her subscriber’s consumer protection interest, a position a network manager can ill afford to ignore in these days of privacy violations.

Because of the interstate nature of the internet, the responsibility lies with the federal government to ensure the above net neutrality principles are met. State governments, as administrative lords over certain populations and territory, should focus on aligning their state advanced communications policy with national policy, including properly administering any national funds allocated for encouraging the deployment of advanced communications. To interpret “state sovereignty” as permission to go one’s way would disrupt the interstate nature of commerce and its regulation by a central government.

Rather than regurgitating the standard rhetoric of “states’ rights”, policymakers need to take a fresh look at federalism and adjust its meaning to the proper interpretation under the four corners of the Constitution.


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