Well put, Ramesh. Let me add the following: the Constitution is a governing document. I don’t much care if we call it federalism, states’ rights, or something else, but the Tenth Amendment underscores the fact that the Constitution conferred limited, enumerated powers on the central government, and the rest of the governing authority remained with the states. States can’t declare war, for example, because the Constitution empowers the federal Congress with that authority. The Commerce Clause, as originally conceived, was intended to overcome the barriers created by the states to trade and encourage commerce, among other things, which the Articles of Confederation did not effectively address. (Today, of course, the Commerce Clause is used to impede commerce and enhance the power of the federal bureaucracy). So, to this extent, the issue isn’t one of federalism, but the clear language of those enumerated powers in the Constitution.
In any event, those powers not enumerated were retained by the states because: 1. otherwise, as a practical matter, the states would not have ratified the Constitution and later the Bill of Rights; 2. Madison’s notes and later the state ratifying debates make clear the near unanimous concern about centralized power; 3. recognition of the diversity of geography and populations; and 4. the widespread view that states are more accountable to their citizens than a centralized government. However, “states’ rights” has become a loaded phrase, for historical reasons. Perhaps the more accurate description would be state authority. But the Tenth Amendment does not, by itself, confer rights on individual citizens. Like the Constitution, it describes the distribution of governing power between and among competing entities.
Now, the Ninth Amendment underscores your point about individual rights, but only as applies to the federal government, which is why subsequent amendments were adopted to protect individual rights as applied to the state, such as the Fourteenth Amendment. If the Ninth Amendment had protected individual rights vis-a-vis the states, or the Tenth Amendment was more than a recognition of state authority and, in fact, conferred individual rights of some kind to citizens directly, the Fourteenth Amendment, among others, would have been unnecessary.
Anyway, as you understand, it’s difficult to fully discuss such a complex issue here given the limitations of this format.
As for Randy Barnett’s post here, I’m glad you concur. Andy McCarthy provided me with this excerpt from the New York Times, which reports certain of Justice Scalia’s comments regarding Wickard v. Filburn. Obviously, as my prior post makes clear, I wholeheartedly agree with Scalia (unfortunately, it remains the law, regardless of Lopez and Morrison, as those decisions didn’t go far enough):
“In fact, much of the debate in the courtroom on Monday centered on one particular precedent, Wickard v. Filburn, a decision from 1942 that upheld Congress’s effort to support wheat prices by controlling wheat production. The court held that even the wheat that a farmer cultivated for home consumption could be regulated under the Agricultural Adjustment Act’s quota system on the theory that all wheat production took place within a national market. That decision is regarded as one of the most far-reaching extensions of Congressional power that the Supreme Court has ever upheld.
“Randy E. Barnett, a Boston University Law School professor arguing on behalf of the two women, told the justices on Monday that if they accepted the administration’s argument in this case, “then Ashcroft v. Raich will replace Wickard v. Filburn as the most far-reaching example” of Congress’s power over interstate commerce. Prohibition of “a class of activity that is noneconomic and wholly intrastate” was not essential to the government’s “regulatory regime,” he said, adding: “There is no interstate connection whatsoever.”
“But the justices whom Mr. Barnett needed to persuade, those who have questioned federal authority in recent cases, were skeptical. ‘It looks like Wickard to me,” Justice Antonin Scalia told him, adding: “I always used to laugh at Wickard, but that’s what Wickard says.” He continued: “Why is this not economic activity? This marijuana that’s grown is like wheat. Since it’s grown, it doesn’t have to be bought elsewhere.’”