Recalibrating the Power Balance

By , Staff writer of The Christian Science Monitor




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Future course of government

Legal scholars and other experts are split over the significance of the court's actions. Some see the string of federalism rulings as the start of what could become one of the most important shifts in constitutional doctrine in Supreme Court history.

Others say that the court's rulings when considered in the context of the vast growth of federal power at the expense of the states - particularly in the past 60 years - amount to little more than minor constitutional tweaking.

Nonetheless, the continuing debate and a new crop of major federalism cases pending before the high court this term are raising the same fundamental questions about the future course of government in America that the Founding Fathers debated in 1787.

"It is too early to be sure, but it certainly is a tentative return to first principles," says Roger Pilon, director of the Center for Constitutional Studies at the libertarian Cato Institute in Washington.

"James Madison wrote in 'The Federalist,' No. 45 that the powers of the federal government are 'few and defined.' That hardly describes the federal government today," he says. "And that is the dilemma that the court faces in these federalism cases, namely: how to square the Constitution we have with the government we have."

Some conservative legal scholars aren't optimistic about the high court's prospects.

"They show some reawakened interest in federalism as a constitutional value, but I think it will fall well short of the original plan to limit the federal government to specified powers," says Robert Bork, a former federal appeals court judge and Supreme Court candidate whose views were deemed too conservative by some members of Congress.

"I don't think it is possible to limit the national government in the way that the Constitution contemplated," he says. "If you really went back to the original understanding of federalism, you'd have to say Social Security, Medicare, Medicaid, civil rights law, and labor law were all unconstitutional - and that is just ridiculous."

Mr. Bork adds, "If I was a judge who was going to rule that way, I would want to get a running start and get out of the country."

At the time the Constitution was drafted in 1787, two primary concerns drove the negotiations.

Some delegates pushed for a strong national government that could settle disputes among the states, facilitate commerce and trade, and provide for the defense of all the states. Such nationalists, or Federalists, worried that the states would not survive without a strong union.

On the other side of the debate were advocates of state sovereignty who worried that a powerful national government would eventually undermine the state powers and trample individual liberties. The best way to preserve freedom, they argued, was to sharply restrict national powers and keep most government action at the state, regional, and local levels - areas closest and most responsive to the people.

Union of 'dual sovereigns'

As a result, the Constitution contains checks and balances, not only among the three branches of the federal government, but also between them and the states. This second system - federalism - is a union of "dual sovereigns," with the states and the national government sharing power and existing on equal footing. The great advantage of federalism to a people who just fought a difficult war to end British tyranny was that it diffused power among different levels of government and provided a safeguard against despotism.

"The point of federalism is to create a level of inefficiency in government," says John Yoo, a constitutional law professor at the University of California at Berkeley. "The people who wrote the Constitution were 18th-century people, and the idea was that you couldn't have independence, liberty, and freedom unless you had limited government. So they made it hard to exercise government power."

But federalism and the vaguely worded Constitution that authorized it also gave rise to a debate over exactly where the line should be drawn between the exclusive powers of the federal government and the exclusive powers of the states. It is a question to which there is no correct answer.

American nationalists take an expansive view of the wording in the Constitution, and view the document as authorizing flexibility to adapt to changing times and modern conditions.

States' rights advocates, on the other hand, adhere to what they see as the strict letter and original meaning of the Constitution. To them, the clear intent of the framers was to sharply limit national power.

Through much of American history, the trend has favored the nationalist view and nation building at the expense of states' rights. More often than not, the Supreme Court played a key role in allowing it to happen.

Most major expansions of federal power came for good reasons - elimination of slavery, efforts to keep the country united in the Civil War, attempts to use national economic power to alleviate local suffering during the Great Depression, federal commands requiring desegregation, and enacting national civil rights laws to attempt to end discrimination and prejudice.

In many of these issues, those chanting loudest for states' rights were also seeking to maintain a status quo in their states that included a legacy of slavery, racism, and discrimination.

The irony is that the Founding Fathers envisioned federalism as a way to protect liberty and civil rights from an overbearing central government. But throughout much of US history, it has been the national government that has played the role of protector of liberty and civil rights in the face of oppressive action or policies of some of the states. It is a juxtaposition that gave federalism a bad name.

But that may have changed. "I think enough time has passed that federalism has lost its negative connotation," says Todd Zywicki, a constitutional-law professor at George Mason University in Fairfax, Va.

Part of it may be a legacy of President Ronald Reagan's attack on big government and the continuing "devolution revolution" - in which Washington is handing responsibilities back to states. Some analysts say the high court is merely following the lead of the rest of the country.

White House holds Rehnquist's reins

Whether the Rehnquist court secures a position in history as the first to sustain a major resurgence of the constitutional principles of federalism may depend entirely on the outcome of the coming presidential election and future appointments to the high court.

"Since these are all 5-to-4 decisions, it is quite possible that if a Democrat wins the presidency in 2000 these cases will all be overruled and the 1990s federalism decisions will all be seen as an aberration," says Erwin Chemerinsky, a constitutional-law professor at the University of Southern California in Los Angeles.

On the other hand, if a Republican wins in 2000 and appoints a conservative justice to replace a more liberal justice, it could mean that the 1990s was only the beginning of resurgent federalism, a mere appetizer to the main course still to come.

What would America look like if strict federalism, as conceived by the framers of the Constitution, was restored today?

The theory is that all issues not related to interstate trade, the national economy, national defense, or foreign affairs would fall to the states for regulation and legislation. Many regulations and policies that violate federalist principles, such as Social Security and Medicare, would most likely remain in place.

But a meaningful push toward federalism's principle of dual sovereignty could have a significant and immediate effect on the reach of congressional legislation. Such hot-button matters as gay marriage, gun control, school vouchers, affirmative action, and perhaps eventually abortion would be decided at the state or local level, with the eventual emergence of a patchwork across the nation of different approaches to each issue.

Proponents of states' rights say the prospect of 50 states grappling with tough issues in different and experimental ways is a better guarantee of liberty than having Congress attempt to decide once and for all how a controversial issue will be resolved.

It would also undercut the influence of special-interest groups by forcing them to focus on 50 different governments across the nation, rather than one government in Washington.

Mr. Zywicki of George Mason University says that states are better suited to decide controversial issues such as gun control or gay marriage. "If the federal government voted [on gay marriage], it would probably vote to preempt it," he says. But if the issue is left to the individual states to decide, there is a better chance that laws in at least some states will protect the interests of a threatened minority, he says.

Others challenge this view, noting that most major civil rights advances are the result of federal intervention rather than on the initiative of state governments.

States' rights advocates make their strongest case when they complain about the unrestricted expansion of federal power: When students open fire in a Colorado high school, Congress immediately debates a national gun-control measure. When a rash of high-profile car hijackings grab headlines, Congress responds by making car-jacking a federal offense.

Making a federal case of ... everything

"The expansion of the federal bureaucracy, together with the decline of the doctrine of enumerated powers, gets Washington to the point where it could conceivably run every aspect of everyone's life," says Thomas Odom, a constitutional-law professor at Oklahoma City Law School.

"There used to be a phrase that went: 'Don't make a federal case out of it.' The notion was that it was something truly exceptional that would get the attention of the federal government," Mr. Odom says. "You don't hear that so much anymore because, frankly, everything is made into a federal case now."

John Baker, a constitutional-law professor at Louisiana State University in Shreveport, agrees. "Too many people want the nanny state. They want the federal government to solve all their problems," he says. "It can't happen. But the politicians are always there to promise that he or she will do it for them."

Where the chips ultimately may fall remains unclear.

"For some of the die-hard nationalists and centralists, they jump up and down and say that the Supreme Court is going to send us back to the pre-New Deal Roosevelt era," says John Shannon, a senior fellow at the Urban Institute in Washington.

But Mr. Shannon says the court's actions are still relatively tame. "What they will do is at the edges where Congress is passing laws where they have stretched the interstate-commerce provision beyond all limit. They blow a whistle now, but it is way, way out at the margins."

Whatever the final outcome, some analysts say the court's action points up the genius and durability of the American system of government.

"This is America at its best," says Richard Nathan, director of the Rockefeller Institute of Government at the State University of New York at Albany. "This is what is wonderful about our political system: that it is so flexible in ways that are not radical and reflect changing ideas that can be expressed in the body politic, and then later on we may do something different."

(c) Copyright 2000. The Christian Science Publishing Society

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