|
 he
most important doctrinal shift during Chief Justice William Rehnquist's
tenure has been the revival of federalism. In a series of decisions
over the past decade, a slim majority on the Court has resurrected
the principle of "dual sovereignty" embedded in the Constitution's
text and structure. At the same time, the Court has begun to reaffirm
that our federal government is one of limited and enumerated powers.
The Rehnquist
Court's federalism jurisprudence has not been well received in all
quarters. Many legal commentators have derided the Court's effort
to restore the proper federal-state balance. In the wake of September
11, some even claim concern for federalism is obsolete. "The
Supreme Court's federalism revolution has been overtaken by events,"
declared Linda Greenhouse of the New York Times. "Federalism
was a luxury of peaceful times," commented Walter Dellinger,
acting solicitor general for the Clinton administration. (Note his
use of the past tense.) Federalist arguments today "seem as
out of date as a John C. Calhoun speech advocating battle with the
Northern states," editorialized the Newark Star-Ledger.
Others label the Rehnquist Court's federalist jurisprudence as "unrealistic"
or "quaint." To at least one legal historian, federalism
is "dangerous" in the wake of terrorist attacks on American
soil.
These criticisms
evince a misunderstanding of the Court's federalist revival and,
more fundamentally, of the principles at the heart of our Constitutional
structure. Federalism is not about state sovereignty, as such, nor
is federalist jurisprudence inherently hostile to the national government.
Rather, the Constitution creates a system of "dual sovereignty."
The Constitution explicitly enumerates those powers which may be
exercised by Congress, such as coining money, declaring war, raising
armies, issuing patents, and regulating commerce "among the
several States." In each of these areas, the federal government's
power is supreme. In virtually all others, however, state authority
is plenary, limited only by an obligation to observe constitutionally
guaranteed rights. As the Tenth Amendment reminds us, "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." There is nothing wrong with a vigorous federal
government so long as its efforts are confined to the proper sphere.
Much as the
separation of powers within the federal government limits the accumulation
go excessive power in any single branch, the division of authority
between the federal and state governments further protects liberty
from government encroachment. As James Madison explained in the
Federalist No. 51, the division of power between "two
distinct governments" — federal and state" —
creates a "double security" for individual liberty. "The
different governments will control each other, at the same time
that each will be controlled by itself." State power is limited
further by interjurisdictional competition. State governments that
impose excessive burdens on their own citizens will lose out to
those that do not. If a state raises taxes to high or fails to control
crime, its citizens will migrate elsewhere.
The most important
federalism decision was probably United States v. Lopez,
in which the Court struck down the national Gun-Free School Zones
Act (GFSZA). Congress claimed that GFSZA was a proper exercise of
its power to regulate interstate commerce. A majority of the Court
rightly disagreed. Carrying a gun to school is neither commercial
nor is it interstate. Treating the GFSZA as a regulation of commerce
would obliterate the very notion of limited and enumerated powers.
School safety is not a federal responsibility. It, like defining
and enforcing most criminal law, is the province of the states.
Striking down the GFSZA does not risk the safety of our children.
State and local officials are no less capable of protecting children
than are the Feds. Indeed, federal interference can cause affirmative
harm, both by obstructing local efforts as well as by diverting
federal resources from truly national concerns.
Admittedly
the Rehnquist Court has been more aggressive protections state sovereignty
than policing the outer bounds of Congress's constitutional authority.
The Supreme Court has been particularly resolute about protecting
state sovereign immunity from private lawsuits under the Eleventh
Amendment, but more reluctant to hold Congress to the limits of
its constitutionally enumerated powers. The Court's majority has
invalidated only the most egregious examples of federal overreaching,
while reinforcing federalist principles by adopting narrow interpretations
of federal statutes. It is understandably reluctant to wage a frontal
assault on congressional authority.
Legal prognosticators
may foresee an end to the Supreme Court's devotion to federalism
in the World Trade Center rubble. Yet they may be projecting nothing
more than their own political preferences. There is no reason why
an aggressive federal response to foreign and domestic terrorist
threats requires reconsidering the balance of federalism. Protecting
the nation from foreign threats, whether through diplomacy or military
force, is quintessentially a federal responsibility. Rooting out
cave dwelling thugs in the mountains of Afghanistan is a proper
exercise of federal power, notes Michael Greve of AEI's Federalism
Project, regulating private land-use to protect cave bugs in
Texas is not. If anything is a "luxury of peaceful times"
it is an unserious Congress that wastes their time and our money
on symbolic exercises of federal power, from the promotion of school
uniforms to the federal prosecution of deadbeat dads.
The importance
of not overburdening the federal government with parochial concerns
is not lost on some in the Bush administration. Recent reports suggest
a reorientation of FBI resources toward counter-terrorism and national
security, and away from run-of-the-mill criminal prosecutions. The
bureau will devote less attention to bank robbers and carjackers
so that it may focus on foreign operatives and terrorist threats.
In other words, the national police force will focus on truly national
threats, leaving traditional crime fighting to state and local officials.
This is federalism in action.
Critics of
the Rehnquist Court scoff at adhering to a document written over
200 years ago, and are particularly hostile to the notion that federal
power is limited by the constitutional text. Federalism may have
been great back then, we hear, but national "emergencies"
from the Great Depression to the new terrorist threat justify departures
from the Framers' design. To the contrary, the post-September 11
challenges facing America show our constitutional structure is as
important and relevant as ever.
|
