Thursday, April 27, 2006


Needed: A Lesson In Federalism

Rather than bashing the liberal left or the NYT, this title is more of a help wanted ad than a warning. Insights will be appreciated.

“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.” –Article X, U.S. Constitution

Where the Constitution is silent, the states should speak. That has always been my understanding of federalism: that states are best suited to handle their own affairs than bureaucrats in Washington.

I’ve always believed that lawmaking is best left to democratic majorities than to men in robes, so I did not expect that in undertaking a reading of a book by one of the most brilliant legal minds of our generation, I would come to doubt or misunderstand my own convictions.

For the past however-many weeks, I’ve been engrossed by Robert H. Bork’s “The Tempting of America.” It has challenged my ideas and has put my understanding of the Constitution to the test, but what it’s done that I did not expect was confuse my understanding of federalism, which has always been rooted in the same principles it contains.

A hypothetical came to mind – and I realize that this is a far-fetched outcome on the slipperiest of slopes, but I hoped that conservative reasoning would help me find a solution to the potential, albeit hypothetical, problem.

First, I must add a disclaimer. I disagree that the 14th Amendment’s equal protection clause was intended to take the power from the states to vary in their lawmaking. I believe that it had everything to do with slavery and nothing to do with limiting the 10th Amendment. That said, here is the potential problem which I hope might inspire some feedback from those of you better versed in Constitutional Law and federalism than me.

[Now remember, I did say this would be far-fetched, but I believe it must be in order to illustrate my confusion.]

Imagine that a group of deviants were to move to a state and form a majority with the sole purpose of forming state laws that allowed them to live their deviant lifestyles legally. Under the concept of federalism which I explained earlier, so long as these laws do not go against anything specific in the Constitution, they should be allowed to express their morals as a democratic majority in the state. But what if this group of deviants had a perverse agenda and wished to enact laws that seriously damaged society?

My initial argument against this was that the hypothetical couldn’t work because we are assuming that people are unreasonable and irrational, but surely, there are a good number of people in this country who could be classified as such. So what check would there be to their power? Surely, anyone in the state who feels threatened by the newly expressed morality would vote with their feet and go elsewhere, if only to protect themselves. What recourse would there be for the minority who stays? Who would protect them?

Now, I’m not for a moment saying that I prefer rule by Judges to rule by democratic majorities, but what about this hypothetical? Should rule of a majority be preferred even if it is oppressive? Am I beginning to sound like a liberal? (gasp.)

I do not believe that Supreme Court Justices or federal judges should be able to undo state laws that do not raise constitutional questions. I do believe that a state should be able to have it’s own interests as expressed by the people. But who protects the minority? Would the people in the country have to vote a constitutional amendment to outlaw whatever the people of State X enact in order to preserve morality? Is there a solution consistent with conservative principles? Does federalism solve the problem or must we really advocate that a judge has a better sense of morality than a democratic majority? In this sense, one would hope a judge would, but I'm not sure I'm ready to jump to that conclusion. I don't think the Founders did.

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The Doctrine of Enumerated Powers
Here is some food for thought that amplifies the doctrine of enumerated powers. This is precisely what the framers of the Constitution intended to enshrine in the fabric of the Constitution itself with the passage of the Tenth Amendment. I have a compiled a ton of quotes on various cosntitutional questions.

“[I]t is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any.”
–James Madison, Objections to the Proposed Constitution From Extent of Territory Answered, Federalist #14. Nov. 30, 1787.

“The 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. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce. ... The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State.”
–James Madison, Alleged Danger From the Powers of the Union to the State Governments Considered, Federalist #45. Jan. 26, 1788.

“The plan of the convention declares that the power of congress or in other words of the national legislature, shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority; because an affirmative grant of special powers would be absurd as well as useless, if a general authority was intended.
–Alexander Hamilton, The Judiciary Continued, and the Distribution of the Judicial Authority, Federalist #81. June 25 - 28, 1788.

“I consider the foundation of the Constitution as laid on this ground that 'all powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people.' To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power not longer susceptible of any definition.”
–Thomas Jefferson, Opinion on the Constitutionality of a National Bank, Feb. 15, 1791.
Cool! You can tell you have aspiring jurist written all over you. I hope to get a Juris Doctorate as well. And it's not the boring procedure that makes law intriguing **sigh**, it's constitutional law!

The Tenth Amendment
The Tenth Amendment with its emphasis upon state authority, was more than a declaratory statement about the role of states against the encroachment of the general government, it was as Jefferson said, the "foundation" of the Constitution.

Recommended Reading
Have you read the conservative constitutional scholar's States' Rights and the Union: Imperium in Imperio, 1776-1876 by Forrest McDonald? That will teach you a lot, and give you a good grounding in constitutional history.

Robert Bork's books are good. More recently, he put together an anthology of essays entitled A Country I Do Not Recognize: The Legal Assault On American Values this past year which is published by the Hoover Institution. See my review.

Jurist Raoul Berger wrote Government by Judiciary: The Transformation of the Fourteenth Amendment where he eviscerates the attendant incorporation doctrine, which more or less turned the Bill of Rights on its nose and made it enforcable against the States. However, the incorporation doctrine is not necessarily the practical implication of the 14th Amendment. Lets not forget the opening phraseology of the Bill of Rights in ascertaining its purpose... "Congress shall make no law..." Besides, the fact the 14th Amendment has a questionable legality to its ratification.

William Watkins, Jr., an attorney and constitutional scholar wrote a nice book Reclaiming the American Revolution : The Kentucky and Virginia Resolutions and Their Legacy, which should appeal to states' rights aficionados. To me, one of the most glaring defects of our Constitution is the absence of a neutral arbiter to resolve constitutional questions. State interposition is not to be disorderly, but quite frankly that was the terms and pleading made by Federalists in urging for adoption of the Constitution.

Judicial review was not in the fabric of the Constitution itself, but breathed into it. Antebellum Senator John Calhoun of South Carolina hit the nail on the head, when he surmised, “The party to whom the power belongs, is the only party interested in protecting it; and to such party only, can its defence be safely trusted. To instruct it, in this case, to the party interested in absorbing it, and possessed of ample power to do so, is, as has been shown, to trust the lamb to the custody of the wolf.” Such is the fate of the Constitution in the hands of the U.S. Supreme Court.

“…To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”
—Thomas Jefferson

Watkins has judiciously recommended a solution, specifically a Constitutional Commission, with commissioners appointed by the state legislatures, as a remedy to the ills that plague our ostensible constitutional federal system, and the precarious footing held by the States in recent years. Watkins proclaims:
[I]t is perhaps time for Americans to consider a major structural change in the federal system: the creation of an institution, accountable to the state legislative sovereigns and the people, to serve as final arbiters of the Constitution.

In my humble opinion- that is great idea. I am actually writing an law review article entitled "States' Rights and the Recovery of Authentic Popular Rule" right now. I'm at 12,000 words now. I hope to make law review one day when I resume my legal studies. Please check out Watkins book at your local library or consider getting it at

States' Rights and the Tenth Amendment
States' rights are still considered sound in principle. They are sound constitutionally, legally, ethically, practically and morally. And even the Democrats know the arguments, as they make them when the Republicans propose tort reform at the federal level. The states' rights doctrine makes its faint echoes in cases like Printz v. United States.

One of the problems is that certain clauses Constitution were seized upon, twisted, and distorted from original intent which completely undercut the doctrine of enumerated powers. Originally, it was tried with the general welfare clause.

“If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions.”
–James Madison, Letter to Edmund Pendleton, Jan. 21, 1792, Robert Rutland, et. al, eds. Papers, Vol. 14.

Thereafter, the attempt to stretch the doctrine of enumerated powers so as to unravel it, was tried successfully with the interstate commerce clause. The centralizing nationalists bent on consolidation suceeded in unraveling the doctrine of enumerated powers by turning the commerce clause into a fountainhead of unlimited national power to rationalize seemingly any intrusion by the federal government in the name of the commerce power, such as the infamous Wickard v. Filburn. 317 US 111 (1942).

In his famous View of the Constitution of the United States, the learned Virginia jurist St. George Tucker reminds us:
"The acquiescence of the people of a state under any usurped authority for any length of time, can never deprive them of the right of resuming the sovereign power into their own hands, whenever they think fit, or are able to do so, since that right is perfectly unalienable. Nor can it be supposed, with any shadow of reason, that in a government established by the authority of the people, it could ever be their intention to deprive themselves of the means of correcting any defects which experience may point out or of applying a remedy to abuses which unfaithful agents may practice to their injury. The sovereign power therefore always resides ultimately, and in contemplation, in the people, whatever be the form of the government: yet the practical exercise of the sovereignty is almost universally usurped by those who administer the government, whatever may have been its original foundation."
Just wanted to say Hi! Have a great weekend :)
Real Federalism: Why It Matters, How It Could Happen by Michael S. Greve from the American Enterpise Institute might be of interest to you. Your local library might have a copy. The ISBN is 0844741000. It addresses Supreme Court jurisprudence concerning federalism, as well as prospects for revival of federalism.

"Real" federalism, Michael S. Greve argues, is a federalism that promotes citizen choice and competition among the states. Far from being an anachronism in an increasingly complex society, a regime that permits citizens to choose among competing jurisdictions - each offering a different mixture of government services - is uniquely suited to a country of highly mobile and increasingly sophisticated citizen-consumers. Real Federalism provides a road map for reviving citizen choice and state competition. Greve shows how the Supreme Court, which has reestablished at least some federalism constraints, and a loose coalition of "leave-us-alone" constituencies - including some religious groups, home school and school choice organizations, and term limit and tax limit advocates - can through a "virtuous cycle" of progressive accommodation and cooperation succeed in advancing federalism.
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