Anthony Lewis forgets federalism?

[Jack Balkin]

We should distinguish the structural fact of federalism-- i.e., that there
are separate states with law making ability-- from the doctrines created by
the U.S. Supreme Court designed to protect states' rights.
         The structural fact of federalism permits many different types of
individual rights to be protected, including both rights that list members
might like and rights that they might not like.  For example, woman
suffrage in Western states before the  Nineteenth Amendment, protection of
gay rights, mandates for equal educational opportunity, and extra
protections against unlawful search and seizure have been made possible by
the fact that states have their own constitutions and governments, their
own legislatures and supreme courts.
         But the question remains whether the *U.S. Supreme Court's*
federalism doctrines have done much to contribute to individual
liberty.  The answer is that, by and large, they have not, or if so only
intermittently and haphazardly.  Printz and Lopez are cases in which second
amendment rights seem to have been aided (although many on the list don't
consider this a very important right, many others on the list do).  But
they are rare cases, I'm afraid.  It is worth considering why the Supreme
Court has been so miserable in this respect.  Let me offer a few guesses.
         Before the civil war, judicial review was not much used to protect
states' rights, because it was not much used for any purpose.  (Dred Scott
comes at the very end of the antebellum period).  After the Civil War
judicial review to protect states' rights was used largely to limit federal
civil rights power (e.g., United States v. Harris, The Civil Rights Cases)
and to protect businesses from economic regulation (Hammer v. Dagenhart,
Bailey v. Drexel Furniture, Carter v. Carter Coal).  Following the New Deal
it was generally conceded that the federal government had power to regulate
the economy and that freedom of contract would not receive very much
judicial protection.  So judicial protection of states' rights since then
has largely served to protect *state governments* from federal economic
regulation (National League of Cities, New York v. United States), federal
property rights protection (Florida Prepaid) and federal civil rights laws
(Boerne, Kimel, Garrett).  The economic/noneconomic distinction announced
in Morrison promises largely to help states avoid federal regulation of
those features of state law (like those involving families, crime, and
violence against minorities) where state laws fall short of federal
standards of protection, and conceivably, to prevent the federal government
from enacting environmental regulations regarding what the Court thinks are
"non-economic" subjects.
         This history suggests that the Court's battle on behalf of
federalism over the years has largely  (and not surprisingly) been in the
service of a set of substantive agendas-- resistance to federal economic
and health and safety regulation, and distrust of federal civil rights
laws.  (In Lopez and Printz we see a new theme -- protection of second
amendment rights).   Obviously, one could imagine a Court crafting
doctrines that protected other rights, but we have not had such a Supreme
Court throughout most of our nation's history.
         (Moreover if such a Court had existed, the doctrines would look
very different than the ones actually produced.  For example, my colleague
Akhil Amar has suggested a sort of reverse 1983 rule that would allow
federal actors to be sued in state courts for violations of federal
constitutional rights).
         I throw out the not altogether surprising suggestion that the
reason why the Supreme Court has used federalism to protect business
interests and to curtail federal civil rights initiatives rather than to
protect other sorts of rights and interests is because the Supreme Court
has been captured by powerful conservative forces throughout much of its
history, including an alliance between two different sorts of
conservatives-- conservatives on egalitarian issues like race and gender,
and economic conservatives. Both types of conservatives have generally
found a weak federal government better to serve their agenda, due in part
to the legacy of the Civil War.  (This last point is considerably more
complicated than it first appears.  But consider as a first cut how the
Compromise of 1877 showed how economic and racial conservatives could join
forces).  Conversely, Northern liberals seized upon nationalism in order to
root out features of Southern life that they found unjust (racism, corrupt
criminal justice systems) or distasteful (public acknowledgments of
religion).  The reason why judicially protected federalism has had a
consistently more regressive spin than the structural fact of federalism
has little to do with the inherent nature of federalism in the abstract; it
has more to do with the way the Civil War structured policy debates and
facilitated political alliances, and with the sorts of people who tend to
get appointed to the Supreme Court.

Jack Balkin


At 12:00 AM 3/22/02 -0800, Automatic digest processor wrote:
>There are, of course, myriad examples in which the Court has permitted (or
>even authorized) abuses of individual liberties through the invocation of
>States' rights arguments.  Are there examples in which the Court has
>invoked States' rights arguments to prevent such abuses?
>
>-- Tobias