Federalism Is Not About States’ Rights
The home page is featuring a review I wrote of Michael Greve’s important new book The Upside-Down Constitution. Here’s a passage from the review contrasting the old Constitution and the new:
States could no longer adopt their own policies with respect to abortion, but their attorneys general could regulate commercial activity nationwide. Faction was no longer to be feared, as in the old Constitution, but to be empowered to produce robust local experimentation. (This was the real point of Justice Brandeis’s famous paean to the states as “laboratories of democracy.”) Where the old Constitution made a virtue of its fixity, the new one celebrated its mutability as a way of responding to the ever-changing necessities of history.
Instead of a federal government limited to its enumerated powers but supreme in their exercise, we now have a government of unlimited powers that must be exercised concurrently with the states. The federal government may attempt to regulate commerce in pharmaceuticals by setting labeling standards that balance the risk of nasty side-effects against the good the medicines can do. But the Supreme Court says that states may undo that balance by piling on their own additional standards, with drugmakers subject to all of them — and all of their judges and juries, who may be making them up on the fly.