Judicial Enforcement of Federalism: What Happened to the Federalism Revival? | Robert Negal
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Judicial Enforcement of Federalism: What Happened to the Federalism Revival? | Robert Negal


Like a lot of other panelist I want to
express my appreciation to the people that put this conference together. I’ve
learned a great deal over the last couple days listening to the other
panelists and I am particularly pleased and honored even though I’m about to run off the stage to be up here with Malcolm Feely who was extremely eminent
scholar in this field. He among the many articles that he has written on the
subject that made him famous is a article he co-authored that said, pretty much
I think this is accurate, you can rebut me one running out the
door. That people who are fascinated by believe in federalism are showing
symptoms of literally showing symptoms of neuroses. The reason I do have to
say the reason I’m running out the door. I have to get
back to Colorado see my therapist. Since I’m inflicted with this disease Ok what happened to the federalism tell
us about the future of federalism at least in terms of judicial enforcement
of the principle of federalism. I think that place to begin is to remind all of you
I know this is unnecessary for many but some of you may not even have been exposed to
the nature of the federalism revial and what’s meant that label. It began about 1976 and
pretty much ended, although whether it ended is an open question that well come to but it certainly lasted till
2005. Give or take a year and in those years the Supreme Court decided to number of cases
in a way that protected state sovereignty as against the power of the
national government. In two these cases the court limited congress’s power under the
Commerce Clause to displace the state’s power to regulate in a couple of
important areas. One had to do with the regulation of guns in schools and the
other had to do with creating remedies for violence against women. Both efforts
were labeled by the court as beyond the commerce power. In two other major cases
the court prohibited congress from carrying out its regulations, its regulations by
forcing state and local governments to do their enforcement work the regulatory
work themselves. This the so-called not no commandeer case, becuase it prohibited the Federal government from commandeering the apparatus of state
governments for their own purposes, are I think an example of what Professor Barber
yesterday referred to Calhoun’s version of states rights because, which by the
way he’s unconstitutional and maybe anti-constitutional. But anyway these are
examples of Calhoun’s version because the court held that even though congress was
admittedly within an enumerated power in these cases the commerce power. It was
prevented from using its preferred method of enforcement by an independent
constitutional principle states sovereignty. There are also some cases
limiting the power of Congress to subject states to suit users being an
indignity incomparable with state sovereignty. There were other cases in this period of time at this i think are
the main cases and gives you an idea of the nature of judicial effort. What was
the significance the overall significance of these cases thought to
be. Well at the very beginning in 1976 writing in dissent to the first of these
cases Justice Brennan labeled the courts protection of state sovereignty
potentially a quote in here “catastrophic body blow to our
constitutional structure.” Sounds like a anti constitutional move by the court to me. Major constituional scholars such as professors Michelman and Tribe of Harvard were more specific describing the
court as a threat to the modern ministry of state. And Linda
Greenhouse the respected commentator, journalist said ,and I could find no evidence that she
was being facetious in this, that the court was sending us on a return to the
Articles of Confederation. So those hopes were or fears back at the time of federalism rival what has happened since. There are some who continue to hold out hope at least for a continuation of the revival. By the court continuing to impose significant limits on the national
powers. In a recent case invalidating the defense, the Federal Defense of Marriage
Act, Justice Roberts took this position when when he took seriously Justice Kennedy’s musings to the fact
that may be the subject of marriage is reserved to state regulatory power and
that’s Congress was beyond its power in the defense of marriage act. It was outside its
regulatory steer because it was reserved to the states. What I’m calling mussing by Justice Kennedy in that case gave some hope to
people that the court was going to continue to federalism revival. Some have
a tribute potential significance to the courts dicta. Just recently in the Selbius
case to the effect that the force purchase of medical insurance is beyond Congress
commerce power. Another effort maybe to limit the commerce power. So these are two illustrations of kinds of straws that people seize on and and try to convince
themselves that the court might be continuing or likely to continue the
federalism revival but the reality is this Justice Kennedy writing for a majority
of the Court just recently held that there is a federal right to
same-sex marriage you’ve all heard of this case. There by having the court
invade the very power to regulate marriage that he had earlier speculated
might be reserved to the states. In the same case where there was dicta to
the effect that the forced purchase medical insurance was beyond the
commerce power. A majority of the Court upheld the same act, as you will
probably know as an exercise of the taxing power. So the dictum about the
commerce power had no real immediate effect on the scope of the national
power. Earlier than the cases that I just mentioned in 2005 Gonzalez vs Rice. The court
upheld a national law prohibiting the private cultivation of marijuana for
private use and in doing so reaffirming the reasoning and the famous case of
Wickard against Filburn. Which had provided the rationale for virtually unlimited national power to
regulate interstate commerce because what was reaffirmed was the idea even small
effects on Commerce it they aggregate to have a significant impact on commerece even commerce viewed as an offshoot of another national regulatory scheme regulatory
scheme over that case drugs more generally that would make a Federal rule constant with commerce power. This aggregate impact rule as endorsed by the Gonzales court. Is an endorsement, is the rule that
provided the rationale for virtually unlimited national power to regulate
interstate commerce. so the basic judicial justification for
enormous Federal power over commerce remains the law of the land, after the federalism revial. So
in short in my view federalism revival fizzled out. I believe this result was entirely
predictable and more generally that the reasons for this predictability suggests
that if a robust system of federalism is to be protected that protection will
have to come from the political process rather than from the court. To understand
why I say this you must think about the nature of the american principle of
federalism and the nature of judging Collen Sheehan said yesterday the
American system of federalism is based on the idea that both the national
government and the state governments draw their limited powers to govern from
the supreme authority which is the people. The constitutional limitations
established by the people are to be enforced in part by competition between
national and state governments. So american federalism is a process that
involves conflict uncertainty and indeterminateness. It’s the consequence, the outcome of political conflict between two partial sovereigns. To engage in this competitive process both levels of government
must be seen as legitimate but partial embodiments of the sovereignty of the people.
For a number of reasons the justices of the Supreme Court are not well situated
to protect the simple, excuse me, this complex and messy system of dual
sovereignty. First and most obviously the justices are central part of the
national government and naturally are inclined to view state governments as
less significant, somewhat distant and even dangerous. I’m not making this
up. If you read the relevant cases you will see that state’s and the politics and states are often explicitly described in those ways by the Supreme Court. Including as being dangerous to the rule of law, to the American system of government, as
being dark and nefarious. I could go on but I won’t. But its in, you don’t make this up, its
in the Court’s opinions. Second the mind and the role of the judge are inclined towards authoritativeness, definiteness, orderliness, certainty and compliance. If you don’t know what I mean by
that become a lawyer and appear before a judge and
pretty soon you know just what I’m talking about. These characteristics are
inherent in the nature of the judge’s role training and experience. Not to mention the fact that there psychologically pleasing. And make judges naturally unappreciative it if not
downright hostile to a system of political competition, meant to
resolve some of the most basic issues of constitutional meaning. It’s too messy a
process to seem legitimate and worthy of respect to the judicial mind. Moreover since Marbury vs Madison the
court has gradually set itself up as the embodiment of the sovereignty of the
people. Again I’m not making that up. You can look at case after case and the court says so. So in this regard the court is, so
to speak, plainly doing a large part of what the states are supposed to do under
a federal system. We have displaced the state’s as the protector as a primary or even the primary
protector of the constitutional system and the limitations in that system on the
national government. Finally the decorous and rationalistic intellectual tools
available to the justices are not likely to be effective in protecting the
federal system. Even if the justices were consistently inclined to do so. Which they’re not Judges rely heavily, as most of you know, on
conceptualizations. Such as the distinction between attenuated effects
on commerce and direct effects on commerce. History shows that these kinds
of abstractions have little constraining force when set against imperical realities
and popular demands and the other potent economic and cultural forces that drive
centralization. So what i’m saying is the judicial doctrines that courts sometimes
do use to justify restraints on national power tend to fall away. History shows this consistently. One
after another of those doctrines or concepts tends to fall away in the face of
brute political and economic facts of life. In short despite the glimmer of hope that can be the teased out
of the federalism revival. Vigorous protection for the American principle of
federalism will have to come out of the political process. The most I think that
we can hope for from the Supreme Court is that in a minor but somewhat important way. It
occasionally might help to maintain the public understands essential for the
political process to protect the role of states in a federal system because that political competition, I’m referrring to, will not work effectively or for its desired ends unless the
participants have some fundamental understanding of what they’re struggling
about and why. I think the court has some minor role play and did play a minor role during the federalism revival. In
inculcating, in distributing those understanding. So I come back to Ken Ivory’s point about teaching the fundamentals. I guess I think the court
can’t be counted on to do very much and history shows that in our understanding
of the nature of judging shows that. What they can be counted on to contribute
maybe some minor understanding that is essential to protecting the American
system of sovereignty and with that I’m off to visit my therapist.

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