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Is Federalism Conservative?
A new line of attack against Bush's judges.


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The Senate’s return this week offers the prospect of finally bringing to a vote a few highly qualified judicial nominees — nominees like Jeffrey Sutton, John Roberts, and Deborah Cook — who have respectively waited for two years in Senate-imposed limbo. But with the Senate’s return also comes the inevitable return of the liberal advocacy groups, who again raise the tired charge that the president’s nominees are anti-women, anti-minority, anti-disabled, and anti-environment. This time, however, the left-leaning groups and the New York Times editorial page are taking particular aim at nominees who they assert have taken positions in favor of “states’ rights” or “federalism” — a position which they assert demonstrates hostility toward their favored causes.

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The New York Times editorial Monday was typical of — pardon the abuse of the term — the “anti-federalist” argument. After referring to federalism as “a euphemism for a rigid states’-rights legal philosophy,” the Times then bemoans the outcomes in a series of federalism cases argued by Sutton. The Times and the Ralph Neas brigade therefore seem to suggest that by virtue of these outcomes, federalism is little more a code word for any number of other -isms with which they disagree, including conservatism.

But by casting stones at those who adhere to (or in Sutton’s case, merely argue on behalf of) federalism, the Times and the liberal-advocacy groups simply demonstrate their misguided belief that the Constitution is an accumulation of policy preferences rather than a body of law. While the idea that law actually means something ordinarily sends shivers up a liberal’s spine, it shouldn’t in the case of federalism. Contrary to our liberal friends’ assumption, federalism is not necessarily conservative. Rather, federalism is a series of constitutional rules, and as rules cut against both conservative and liberal positions alike. Yes, federalism will disappoint those who think that the only solution is a national one, but in terms of policy outcomes, federalism proves itself to be a neutral dealer.

Indeed, two recent examples demonstrate how federalism transcends ordinarily political alliances. First, prior to its recess, the Senate passed a ban on partial-birth abortion. The bill, which is awaiting likely approval by the House and signature by the president, makes it a federal crime for a doctor to perform this type of late-term abortion. The partial-birth-abortion ban enjoys widespread popular support, received a bipartisan vote in the Senate, and is particularly lauded by conservatives, who consider it a reasonable limitation on an unreasonable procedure. It is also unconstitutional. The constitutional infirmities do not necessarily arise out of the right to abortion found in Roe v. Wade, but out of constitutional requirements of federalism.

To understand why the partial-birth-abortion ban is constitutionally vulnerable requires a brief explanation of the Commerce Clause. Many policymakers assume that the national government can regulate whatever they perceive to be a national problem. But the Constitution does not permit Congress to legislate on every issue which is popular or good. Rather, the Constitution, by granting specific powers, permits the national government to regulate in specific and limited fields. Thus, in the Commerce Clause, the Constitution gives to Congress the authority to regulate interstate commerce, but expressly withholds from the national government the authority to exercise traditional police powers.

In the wake of the New Deal, however, the Commerce Clause was the subject of expansive reading by the federal government. The interpretation grew to the point that many mistakenly believed that Congress could regulate anything, because even the most miniscule, non-economic, local activity would have some effect on interstate commerce.

In the 1995 Lopez case, however, the Supreme Court clarified that Congress’s Commerce Clause power is not without limits. In Lopez, the Court struck down the Guns Free School Zones Act, a popular bipartisan bill which sought the laudable end of keeping guns out of schools, but admittedly had nothing to do with commerce, let alone interstate commerce.

The partial-birth-abortion statute suffers from the same fundamental defect as the Guns Free School Zones Act. Admittedly, unlike the act of carrying a gun, a doctor providing the service of partial-birth abortion is clearly engaged an economic activity in the form of a service for pay. But simply being a commercial activity is not enough to pass constitutional muster: The Supreme Court has repeatedly held that activity must substantially affect interstate commerce. Assuming that those who testified before Congress are correct in saying that this procedure is rarely used, then even if the courts aggregate the economic activity, it is unlikely that the government can demonstrate a “substantial” economic effect sufficient to justify regulation. Therefore, it seems quite unlikely that the partial-birth-abortion bill would meet the requirements of federalism, in spite of the fact that the outcome is one which is highly favored by conservatives.

In yet another example of the outcome-neutrality of federalism, Judge Reinhardt, who is considered to be among the most prominent liberal judges in the country, held that it was unconstitutional to apply a federal statute prohibiting the possession of child pornography to a parent who had a suggestive picture of her minor child. Relying on recent Supreme Court decisions, Judge Reinhardt found the act of possessing the photo to be non-economic, wholly intrastate in nature, not sufficiently connected to interstate commerce, and therefore beyond the scope of congressional power.

These examples beg the question: Is society without power to regulate partial-birth abortion? Or possession of child pornography? No. Rather, the federalism-based limitations only specify that it is not appropriate for Congress to regulate here. The states may (and many already do) regulate in these areas so long as they do not offend constitutional guarantees of privacy or free speech in doing so.

These examples also beg the question of whether federalism is really outcome based, to which the answer is also “no.” Yet if we are to believe advocates who attack recent judicial nominees based upon federalism, any judge who strikes down the partial-birth-abortion case must favor expansive abortion rights, and Judge Reinhardt must favor possession of child pornography. Just as it is unfair to call Judge Reinhardt “anti-children” or “pro-kiddie porn,” it also is unjustified to cast aspersions on Bush’s judicial nominees based upon the outcomes of their cases. Indeed, such accusations seem particularly unfounded against nominees like Jeffrey Sutton, who acted not as a judge but merely as an attorney for his clients in federalism cases.

Those who oppose President Bush’s judicial nominees have done their best to equate federalism with an anti-minority view, but that just isn’t so. Federalism is nothing more than a neutral series of constitutional rules. As Judge Reinhardt ably demonstrated, judges on the left can and should apply this just as judges on the right.

— Robert Alt, a frequent NRO contributor, is a fellow in constitutional studies and jurisprudence at the John M. Ashbrook Center for Public Affairs at Ashland University.



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