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Federalists Rejoice
The Court starts to turn around the federal Leviathan.


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In an important victory for federalism and limited government, the Supreme Court today in United States v. Morrison declared that Congress exceeded its powers when it provided for a federal lawsuit to remedy crimes that are not related to interstate commerce. The Court emphasized that states can and should penalize noneconomic crimes, but that in our system of federalism, the states and not the federal government are entrusted with this responsibility. Writing for a narrow five-member majority that included Justices O’Connor, Kennedy, Scalia, and Thomas, Chief Justice Rehnquist held that the section of the Violence Against Women Act (VAWA) providing a private right of action against perpetrators of gender-related violence was aimed at discouraging noncommercial activity — in this case violence. Therefore Congress could not regulate the conduct under the Commerce Clause.

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The Chief Justice specifically rejected the argument that long-term economic effects of crime could provide a basis for a showing that the VAWA regulates interstate commerce. Were that permitted as a basis of jurisdiction, Congress could exercise plenary authority over all activity rather than be restricted to its enumerated powers, because all conduct when aggregated has a ripple effect on the economy. The Chief Justice also rejected the argument that the Fourteenth Amendment authorized the VAWA, holding that the statute provided a right of action against private individuals, whereas the Fourteenth Amendment was designed only to provide remedies against state misconduct.

This case consolidates a series of victories for federalism in the last decade. In United States v. Lopez, the Court invalidated a federal statute that prevented guns from being carried within 500 feet of schools. In New York v. United States, the Court struck down a federal statute that commanded state legislatures to pass legislation to acquire state ownership of radioactive waste. Most recently, in Printz v. United States, the Court declared that the federal government could not order state officials to enforce a federal law — in that case, a law requiring background checks of gun owners. But no victory has occurred in a case as high-profile and politically charged as this one, with the Court invalidating a statute that ostensibly promised to protect half the voting population. The courage of five justices’ convictions suggests that the revival of federalism may well continue, as long as the Court’s composition remains unchanged.

Thus, today, the stakes in the coming Presidential election just grew larger. What is at stake is nothing less than the Framers’ design for limited and accountable government. The happy paradox of federalism is that two interlocking governments can lead to less — and better — governance than a unitary state. If the national government uses its power only to keep open the interstate avenues of movement for people and capital, and to deal with spillovers among the states (like pollution), the states must compete with one another to find solutions to problems that appear within their own borders. If they fail to find the appropriate solutions, people and capital will begin to move elsewhere. Thus federalism creates a market for governance, simultaneously giving states the space to devise efficient policy solutions and preventing both the states and the federal government from using their power unwisely to oppress liberty or extract wealth from their citizens.

Unfortunately, in the New Deal era, the Court appeared to destroy this system, giving Congress the plenary authority to regulate local activity even if it had only a negligible effect on interstate commerce. Because of federalism’s decline, our governments, both state and federal, regulate less efficiently than they would in a system restrained by constitutional federalism. Less competition among the states has also led to less innovation in solving our social problems. But even worse are the losses to our civic life. Because a more centralized system has made government less constrained and less close to the people, citizens have become more suspicious–in some cases cynical — of government.

A continuing revival of constitutional federalism would thus have both economic and civic benefits. One case, even a case as soundly decided as United States v. Morrison, certainly does not resurrect the whole structure of federalism; nor does it undo the enormous centralization of government wrought by the New Deal. It is important to remember that after Lopez, Congress again passed a national prohibition on the guns within 500 feet of schools by making the prohibition a condition on receiving federal education benefits.

As the Constitution is currently interpreted, the federal government with its huge tax revenues has, in addition to the Commerce Clause, many other levers for prescribing national policies on local issues. Moreover, Congress remains free to regulate any economic activity even if that activity has no substantial spillover effects among states. Thus, this case surely does not represent the last word in the continuing struggle to restrain the federal Leviathan. But it is manifestly an occasion for the kind of constitutional rejoicing that has been all too rare in the last fifty years.

— John O. McGinnis is Professor of Law at Northwestern University School of Law.



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