The Corner

Federalism & Hypocrisy

Ramesh — Your points in today’s colmun are well-taken but let’s not kid ourselves. Many conservatives are inconsistent, if not hypocritical, on these issues, adopting constitutional or theoretical rationales for or against federal involvement on a fairly ad hoc basis. How many conservatives who celebrated federalism when the Supreme Court found that Congress lacks power to ban gun possession near a school are ready to acknowledge that the exact same arguments suggest Congress lacks power to ban marijuana possession in one’s own home. You may not be a “fair weather federalist,” but the same cannot be said of many conservatives.

As for me, I do not believe certain laws violate federalism because they are unconstitutional, as you suggest. Rather, it is the other way around: Some federal statutes are unconstitutional because they violate those federalism principles embodied in the Constitution, such as the strict enumeration of federal powers. While I believe there are many federal statutes that are unconstitutional on federalism grounds, including the federal ban on partial birth abortion. there are many others that I believe represent unwise or unnecessary assertions of federal power that are nonetheless constitutional. The Constitution resolves some federalism questions, but not all of them. Indeed, as my former boss likes to say, the Constitution is not perfect, but it is much better than what we have.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.


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