The Enterprise of Con Law
Hamilton02 at AOL.COM
Mon Nov 11 12:14:18 PST 2002
The attempt to justify the reach of congressional power on the basis of the notion that many state laws are not preempted is interesting. But it does not prove that political safeguards place meaningful limits on Congress. Neither Herbert Wechsler's, nor Jesse Choper's, nor Larry Kramer's theories turn out to be empirically correct. Clever, but not factually accurate. Congress has no time for state or local interests and only throws "federalism" around when members are looking for high-minded sounding reasons to scuttle bills interest groups don't like. For those interested in a factual account of how a bill with strong federalism elements gets through Congress, my article on the "True Story Behind the Religious Liberty Protection Act" is forthcoming in Indiana.
The burden rests on those who are going to advocate for judicial nonintervention on federalism to justify this nonintervention even though the courts draw other lines of power, such as the separation of powers and the separation of church and state.
As for Alexander Hamilton, he believed that no member of Congress would ever find the arenas of the states interesting. It would have been inconceivable to him that Congress would have reached out for criminal law enforcement, land use, or education. But that is because he did not take seriously enough the shared wisdom of the Framers that permeated the Convention--that every entity holding power will find ways and novel ways to abuse it.
In a message dated 11/11/2002 10:22:26 AM Eastern Standard Time, jack.balkin at YALE.EDU writes:
> One answer that Drew could have offered was that the balance between
> federal and state power is left up largely to the political branches, and
> that there is very good evidence that the federal government respects the
> balance in practice, because of the very large body of state laws that are
> not preempted, even in our own time. The same point could be made in the
> context of international law, given the actual amount of federal
> legislation that trumps state law in order to enforce international agreements.
> I must point out to Ernie that this answer would have been perfectly
> acceptable for about half a century; the reason why it doesn't fly today is
> because of a change in the ideology of the Court, not because of fealty to
> the Framer's intentions or the Constitution's original design. If the
> Court were serious about preserving the original design of the Constitution
> in this area, they would have big problems on their hands.
> The real "Drew Days question" is how one devoted to the principles that
> animated the founding generation can explain why the New
> Deal and the
> present scope of federal regulation are constitutional.
> Jack Balkin
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