A response to Donald Devine.
A core purpose of the Constitution was to protect national commerce from state governments. During the last century, however, the Supreme Court has lost sight of that purpose and vitiated the constitutional provisions that executed it. An upcoming case in which Boulder, Colo., is attempting to play global climate regulator gives the justices an opportunity to change course.
That’s what I argued a few weeks ago. Taking up these and other issues in The American Spectator, Donald Devine writes: “Even with today’s moderate judicial retreat from that earlier legal progressivism, some right-leaning intellectuals like Ramesh Ponnuru have argued that today’s court has moved back too far toward states’ rights.” He goes on to say that the Supreme Court’s originalists and quasi-originalists object to their predecessors’ invention of “substantive due process” as a justification for increased national power and weakened state authority over such matters as contraception, abortion, and marriage. He adds that the originalists’ critics on the right — given the absence of any other citation, I’m pretty sure he means me — regard that “broader view of due process as necessary for free markets and commerce.”
I plead not guilty. I’m not defending substantive due process or criticizing the originalists for paring it back. I’m defending the compact clause, the export-import clause, the full faith and credit clause, and a reading of the commerce clause that Supreme Court justices unanimously accepted decades before anyone had heard of substantive due process — indeed decades before there was a 14th Amendment with a due process clause to misconstrue, and a century before the New Deal and the rise of federal power.
But there’s an important issue here beyond whether Devine is accurately characterizing my views or focusing on the right parts of the Constitution. Devine wants “a federalist rebalance.” The Court itself has often used the “balance” metaphor in federalism cases, and it’s misleading.
The problem with our federalism isn’t simply that the federal government has too much power and the states too little, so that the solution is to give the states more power and the feds less. The federal government does indeed exercise too much power that ought to be left to the states — but there state governments also exercise powers that are properly national. And these problems don’t balance each other out: It’s not an answer to the federal government’s flouting of constitutional limits on it to let states flout the limits on them too.
Devine decries the progressive justices who, especially after the New Deal, “were incredibly successful in nationalizing law, policy, and power over states’ rights.” But those were the same justices who abandoned the old restrictions on the states’ power over commerce. The New Deal judicial project aimed not so much to expand federal power over states as to expand government power over the economy at all levels. If we are to “move back” to an earlier understanding of the Constitution, as Devine seeks, we ought to recover some of the pre-New Deal limits on the states.
Under that earlier understanding, the Boulder case would not have been a close call.