Anthony Lewis forgets federalism?

[Keith E. Whittington]

Since the Court through its history has far more often accommodated
national power vis-a-vis the states than restrained it, it is easier and
equally relevant that one could name cases in which the Court failed to
protect individual liberty by refraining from invoking federalism.  One
might begin with the case of Roscoe Filburn.  But most of the relevant
individuals to be named would be hidden in the lower depths of the legal
system.  Thus, Justice Brennan might argue, South Dakota's loss in South
Dakota v. Dole was a loss for all those 19 and 20 year olds who were
denied the liberty to drink alcohol as a consequence of the expansion of
federal power approved by the Court.

At the same time, one should note that federalism cuts two ways and
cases that appropriately prevented (or failed to appropriately prevent)
the states from exceeding their constitutional authority should equally
be counted.  Thus, E. Allgeyer and Company was protected from Lousiana's
discriminary marine insurance regulations through the Court's invocation
of federalism principles.

But the exercise is largely beside the point.  If federalism is
effective in preserving liberty, then it does so primarily through its
structural operation (the examples cited by Michael McConnell in
relation to the Printz principle are nice ones) rather than judicial
invocations of Tenth Amendment.  Court cases regarding federalism (or
separation of powers for that matter) would, under those circumstances,
be more important for preserving those structural features of the
constitutional system than for saving named individuals through
particular judicial intervention.

Keith Whittington

Tobias Barrington Wolff wrote:

> Can anyone point to an example in the history of the United States in
> which a federalism / States' rights argument has been successfully
> deployed to protect the individual liberties of a person in a
> specific, concrete and meaningful way?
>
> Rather, I invite citation to a case in which the Court has prevented a
> specific, concrete abuse of individual liberty by the federal
> government through the invocation of States' rights.
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