Diversity is the catchword of our times. To favor it is to be on the side of the angels. But take notice: the diversity mavens have no use for pluralism in political jurisdiction. What they want is an almighty unitary state to enforce their view of diversity, one that prevents localized experimentation.
That’s one explanation for the liberal outcry against the Supreme Court’s recent decisions on the relationship between the federal government and the states. The court is “rewriting the very structure of our government,” claims Anthony Lewis in the New York Times, wrongly assuming that most people would be alarmed by this.
In fact, the court is merely permitting the states to recover some of their lost jurisdictional rights relative to the central government, with the result of greater legal and political diversity. The step was very small: the court affirmed that state governments cannot be sued on the basis of federal law in their own courts. If it were otherwise, Justice Anthony Kennedy pointed out, the Constitution would have never been ratified, since this kind of legal attack on states obliterates their autonomy.
This is a point consistent with federalism, which is not merely an ideological bent or a legal theory, as media commentators would have it, but the very substance of the American system. This is clear from the text that forms the basis of the majority’s opinion, the 11th amendment, which says “the judicial power of the United States [singular] shall not be...prosecuted against one of the United States [plural]....”
The underlying philosophical assumption is that a free society does not need to be, and should not be, managed from the top down. The closer the units of government to the people, the greater the check on the potential for tyranny. Legal regimes among the states compete for citizens, and the risk of despotism is thereby reduced. Most important, sovereign states act as a bulwark against the central government.
The framers of the Constitution regarded themselves as citizens of their respective states, and these states came together to form a government with strictly limited functions, among which was not the right to bind the states with federal labor dictats. Some founders like Patrick Henry presciently argued that the Constitution didn’t include enough protections against tyranny. He wanted, among other reforms, the phrase “We, the People” changed to “We, the States.”
Nevertheless, under the framers’ system, the states compromised separate political units, with different laws, cultures, religious populations, and even rights of citizenship. This core federalist understanding was enforced by the right of secession, which was understood to be retained by the people in their respective states. The result was a model of political diversity, in which the president was largely a figurehead and no tax or regulatory agency had any rights over the liberty and property of the people.
The US took a terrible turn when it abolished this original idea, beginning in 1861 and continuing to this day. In fact, if the framers made a mistake, it was in codifying the existence of a central government, which all of history has shown will eventually abuse its power. The Articles of Confederation, which the Philadelphia Convention overturned, at least didn’t trust a central government to obey the rule of law.
Today, checks on the federal government are all the more necessary since the number of states has expanded by nearly four times, and the geographical space encompassed by the United States is far larger than a nation-state should be. Ideally, the US would again become a model of decentralized politics even as its economic and cultural influence becomes more international.
But somehow the usual suspects put aside their love of pluralism when it comes to the court. In their view, the only role for the court is to further centralize the government. It’s tempting to take comfort in the outrage of liberals at current court trends, but in truth, the recent decisions, and, in particular Alden v. Maine, come nowhere near genuine federalism.
The letter and spirit are summed up by the majority: “Congress has vast power but not all power.” It’s hard to know whether to celebrate the court’s sudden recognition that the totalitarian state is impermissible, or to be outraged that such a sentence would need to appear in an American court decision.
The wording illustrates just how far we’ve slid, and how far we have to go to recapture lost liberties. At minimum, a truly federalist court needs to strike at the heart of the New Deal, and strip away the power the central government grabbed in the guise of the commerce clause and the 14th amendment.
If we are serious about restoring something like the original Constitution, the whole DC pea patch has to be ripped up and plowed under. Even the centralizing liberals on the court recognize that the federal government is nothing like what the founding generation imagined:
“If the framers would be surprised to see states subjected to suit in their own courts under the commerce power,” writes Justice David Souter in his dissent, “they would be astonished by the reach of Congress under the Commerce Clause generally. The proliferation of government, state and Federal, would amaze the framers, and the administrative state with its reams of regulations would leave them rubbing their eyes.” Indeed, imagine “the framers’ surprise at, say, the Fair Labor Standards Act, or the Federal Communications Commission, or the Federal Reserve Board....”
Yes, David, which is precisely why the court hasn’t gone nearly far enough.
