Kurt Lash: Reconstructing First Principles [NSS 2018]
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Kurt Lash: Reconstructing First Principles [NSS 2018]


Federalism, in one sense, was dramatically
impacted by the Fourteenth Amendment by expanding the scope of the Bill of Rights and applying
those rights against the states. But in another sense, federalism, the basic
constitutional structure which declares that the federal government has only limited enumerated
power, that principle was not changed by the Fourteenth Amendment. In fact, it was because the drafters and the
ratifiers of the Fourteenth Amendment continued to embrace the principles of federalism and
the idea of limited federal power that convinced them to pass an amendment in the first place. Some radical Republicans in 1866 insisted
that no amendment was necessary at all. They had expansive interpretations of national
power, and they believed that Congress already had full authority to control all the internal
laws and municipal regulations in the several states. Moderate Republicans, including John Bingham,
the man who drafted Section I of the Fourteenth Amendment, resisted that idea. Bingham believed in the Constitution of James
Madison and the basic federalist structure, which divided power between the federal government
and the states. John Bingham believed that Congress did not
have power to control any of the internal regulations for municipal laws in the states,
and that having the power to protect the freedmen would require an amendment which gave Congress
enumerated power to enforce the rights of Section I. That’s a federalist principle, the idea that
the federal government only has those powers actually enumerated in the Constitution. John Bingham believed in federalism, but he
also believed that there were certain liberties that states had to respect. So he told his colleagues, “Let’s pass an
amendment which requires the states to respect the Bill of Rights.” But in passing that amendment, Bingham also
insisted that the majority of municipal laws and all unenumerated subjects would continue
to be left to local control, subject only to the basic requirements of due process and
equal protection. So even after the Fourteenth Amendment and
its dramatic expansion of individual rights, the basic structure of the Constitution, one
which demands the federal government point to an enumerated power before it can act,
that structure remains the same.

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