Do the Supreme Court's federalism decisions protect liberty?

[Ilya Somin]

Well, I"m no great fan of Seminole Tribe myself. However, one of the ways
that we shold understand constitutional amendments, it seems to me, is to
understand that they actually do something - that is that they don't
merely repeat that which was already in the Constitution. In the case of
the Thirteenth Amendment, one of the implications is that there was not
previously a federal power to prohibit slavery -a point conceded not only
by defenders of slavery but even by opponents like Abraham Lincoln and
William Lloyd Garrison. In my view, of course, the federal government
would have been justified in suppressing slavery even before the
Thirteenth Amendment because the evil was great enough to permit or even
require unconstitutional action. However, the art of judging constitutions
is separate from that of interpreting them.

I also fail to see why the creation of a federal power to do one thing
(abolish slavery) means that we should jettison other limits on federal
power, if that is indeed what Prof. Wolff advocates here. To the contrary,
the fact that the framers of the amendment limited its scope to this
particular task suggests that they intended to leave other limits on
federal power intact. Certainly, they could have just written an amendment
giving the federal government plenary legislative power, but chose not to.




On Wed, 13 Nov 2002, Tobias Wolff wrote:

> One might rather argue that the Thirteenth Amendment (and the other
> Reconstruction Amendments) changed the way that we should understand other
> parts of the Constitution, even those not explicitly encompassed within
> their mandate.
>
> This mode of constitutional interpretation is admittedly inconsistent with
> that employed by the Court in, for example, Seminole Tribe.  For some,
> that's not a very strong objection.
>
> -- T
>
>
> > I think the slavery question actually counts the other way. The
> > slaveholding South would never have accepted the Constitution if they
> > believed that the Commerce Power was broad enough to encompass a federal
> > ban on slavery. Thus, an interpretation of the Commerce Power broad enough
> > to include involuntary economic activity (i.e. - slavery), must be ruled
> > out, at least on original intent grounds. The South did accept a
> > non-supermajority power over interstate commerce, but only because the
> > definition of commerce was considered to be strictly limited.  For
> > example, even a nationalist like Alexander Hamilton routinely
> > distinguished between commerce onthe one hand and agriculture and
> > manufacturing on the other. Moreover, later generations shared this view
> > for many decades. Otherwise, the Thirteenth Amendment would have been
> > unnecessary. The Republican-dominated Congress of that era could simply
> > have banned slavery throughout the nation by statute. Yet (to my
> > knowledge) this option was not even seriously considered at the time
> > because everyone recognized that the Commerce power didn't go that far.
> > Congress did adopt limited bills confiscating slaves belonging to rebels
> > using the War Power, but that is obviously a different issue.
> >
> > I am NOT arguing that original intent necessarily trumps all other
> > considerations in this debate. Clearly, a whole range of other
> > considerations must be weighed. But to the extent that it should matter at
> > all, it cuts in favor of a much more limited interpretation of the
> > Commerce Clause than even Lopez and Morrison permit. And it certainly
> > doesn't cut AGAINST the holdings of those decisions except to the extent
> > that they may not go far enough.
> >
> >
> >
> > On Wed, 13 Nov 2002, Barksdale, Yvette wrote:
> >
> > > Hi eric
> > >
> > >         re point 1 - "First, even if we accept the general proposition that
> > > the Commerce Clause
> > > > was the primary reason for the Constitution, it was not aimed at giving
> > > > Congress power over the national economy generally, but rather a specific
> > > > subset of economic activity--the interstate and international trade in
> > > > goods, not production of those goods, even if they were ultimately
> > > > destined
> > > > for interstate or international commerce."
> > > >
> > >         However, the reason for the grant of federal power over interstate
> > > trade was because of the post-Revolution national economic problems that
> > > resulted from the lack of federal power to regulate such trade (interstate
> > > competition over foreign markets, etc., Shay's rebellion issues, etc.).
> > > Thus their overall concern was protection of the national economy.
> > > Moreover,  even if the goal of the interstate commerce clause was
> regulation
> > > of interstate trade - the constitutional authority over the production of
> > > goods for interstate commerce, etc. comes in under the McCulloch means/end
> > > analysis  - one regulates production because of the effects of
> production on
> > > interstate trade. Simiarly with the costs of crime and resulting national
> > > health care costs which raise the price of health insurance for employers,
> > > and bankrupt uninsured employees which ultimately affect the ability of
> > > perssons to engage in interstate trade. So even if their goal in interstate
> > > trade, subsumed within that is plenary federal power to protect interstate
> > > trade, which means removing barriers to that trade.
> > >
> > >         Re point two: Second, they did not compromise over the institution
> > > of slavery, which was
> > > > never on the table.  The A compromise was reached regarding the commerce
> > > > power and the slave trade, which was a subset of the issue of
> > > > slavery.  However, as even Antifederalists such as Federal Farmer
> > > > recognized, the new government still had more power over the slave trade
> > > > than the government under the Articles of Confederation, which had no
> > > > power
> > > > over the slave trade whatsoever.
> > > >
> > > While it is true that a constitutional prohibition on the domestic
> > > institution of slavery was never on the table, it is true that the scope of
> > > affirmative federal protection for slavery was on the table, including for
> > > example, the ban on the international slave trade, and permitting Southern
> > > states to count slaves for reapportionment purposes. Whatever objections
> > > people might have had to this constitutional protection for slavery (in
> > > particular - the continuation of, in particular,  the international slave
> > > trade which even pro-slavery people, except maybe South Carolina and
> > > Georgia,  agreed was the most horrific of moral tragedies),   they traded
> > > their moral objections for southern support  for an unrestricted interstate
> > > commerce power -(for whcih the Southerners, concerned about northern
> > > economic hegemony, had wanted  supramajority vote requirement)
> > >
> > > So i think its safe to say that the framers valued this interstate commerce
> > > power very highly.
> > >
> > > yb
> > >
> > > yb
> > >
> > >
> > >
> > >
> > >
> > >
> > > *********************************************
> > > Professor Yvette M. Barksdale
> > > Associate Professor of Law
> > > The  John Marshall Law School
> > > 315 S. Plymouth Ct.
> > > Chicago, IL 60604
> > > (312) 427-2737
> > > (email:)  7barksda at jmls.edu
> > > *****************************************************
> > >
> > >
> > > > ----------
> > > > From:         Earl Maltz[SMTP:emaltz at CRAB.RUTGERS.EDU]
> > > > Reply To:     Discussion list for con law professors
> > > > Sent:         Wednesday, November 13, 2002 4:48 PM
> > > > To:   CONLAWPROF at listserv.ucla.edu
> > > > Subject:      Re: Do the Supreme Court's federalism decisions protect
> > > > liberty?
> > > >
> > > > I have a number of disagreements with these assertions
> > > >
> > > > First, even if we accept the general proposition that the Commerce Clause
> > > > was the primary reason for the Constitution, it was not aimed at giving
> > > > Congress power over the national economy generally, but rather a specific
> > > > subset of economic activity--the interstate and international trade in
> > > > goods, not production of those goods, even if they were ultimately
> > > > destined
> > > > for interstate or international commerce.
> > > >
> > > > Second, they did not compromise over the institution of slavery,
> which was
> > > > never on the table.  The A compromise was reached regarding the commerce
> > > > power and the slave trade, which was a subset of the issue of
> > > > slavery.  However, as even Antifederalists such as Federal Farmer
> > > > recognized, the new government still had more power over the slave trade
> > > > than the government under the Articles of Confederation, which had no
> > > > power
> > > > over the slave trade whatsoever.
> > > >
> > > > >The real problem I think with the  Court's decision is that whatever
> > > > values
> > > > >federalism protects, those values were subordinated to Congress' power
> > > > over
> > > > >the national economy. This was the framer's preeminent constitutional
> > > > goal,
> > > > >one which they were willing to pursue not just at the cost to federalism
> > > > >values, but also at the cost of surrendering objection to the moral
> > > > tragedy
> > > > >of slavery - which they traded away for an unrestricted federal commerce
> > > > >power.
> > > > >
> > > > >  Now certainly, at the time, there wasn't much of a national economy,
> > > > and
> > > > >thus COngress power was slight indeed. However, now as a matter of
> fact -
> > > > >these  "noneconomic activities" in fact have national economic effects
> > > > and,
> > > > >accordingly, whether individually or collectively , in fact
> undermine the
> > > > >national economy, which ultimately affects commerce.  States simply are
> > > > >incompetent to adequately resolve these national economic problems
> > > > because
> > > > >of their limited jurisdiction. Thus they cannot solve problesm such as
> > > > the
> > > > >drastic adverse effect on national health care costs from violent crime
> > > > ,
> > > > >etc.  If states cannot resolve these problems, and the federal
> govenrmetn
> > > > >has no constitutional power to cannot resolve these problems, then the
> > > > >government as a whole  lacks power to protect the national economy, a
> > > > >position which is clearly inconsistent with our constitutional history.
> > > > >
> > > > >These federalism values maybe nice in theory, perhaps, but how much were
> > > > the
> > > > >framers willing pay for them? Not much.
> > > > >
> > > > >Now maybe if you are a nonoriginalist maybe you can argue that they were
> > > > >wrong to trade these values away for simple profit, but that
> argumenet is
> > > > >has a tough road, i think,  because without  federalism's originalist
> > > > >pedigree, its hard to see how these so-called values (protecting state
> > > > and
> > > > >local autonomy) warrant depriving the national government of power to
> > > > >redress critical problems for its citizenry in areas clearly
> delegated to
> > > > >the national govenrment by the enumerated powers.
> > > > >
> > > > >yb
> > > > >
> > > > >yb
> > > > >
> > > > >
> > > > >*********************************************
> > > > >Professor Yvette M. Barksdale
> > > > >Associate Professor of Law
> > > > >The  John Marshall Law School
> > > > >315 S. Plymouth Ct.
> > > > >Chicago, IL 60604
> > > > >(312) 427-2737
> > > > >(email:)  7barksda at jmls.edu
> > > > >*****************************************************
> > > > >
> > > > >
> > > > > > ----------
> > > > > > From:         Judith Royster[SMTP:judith-royster at UTULSA.EDU]
> > > > > > Reply To:     Discussion list for con law professors
> > > > > > Sent:         Wednesday, November 13, 2002 1:36 PM
> > > > > > To:   CONLAWPROF at listserv.ucla.edu
> > > > > > Subject:      Re: Do the Supreme Court's federalism decisions protect
> > > > > > liberty?
> > > > > >
> > > > > >    Please forgive this novice question -- but why isn't robbery
> itself
> > > > > > an economic activity (eg, the Hobbs Act cases)?  This discussion and
> > > > the
> > > > > > Court seem to presume that "economic activity" means only legal
> > > > economic
> > > > > > activity.  Has there been any law on this?  If not, I don't see
> why it
> > > > > > needs to be so restricted.  Certain types of crimes -- robbery among
> > > > > > them, but also fencing, prostitution, larceny, fraud, carjacking, and
> > > > so
> > > > > > forth -- seem to me to *be* economic activity, albeit illegal
> economic
> > > > > > activity.  So even if I were to agree with Lopez that simple
> > > > possession
> > > > > > of a gun is not economic activity, that doesn't seem to foreclose the
> > > > > > idea that things like drug dealing *are*.  Has there been any
> argument
> > > > > > that those types of crimes are outside the Lopez problem?
> > > > > >
> > > > > >
> > > > > > --
> > > > > > Judith Royster
> > > > > > Professor of Law
> > > > > > Co-Director, Native American Law Center
> > > > > > University of Tulsa College of Law
> > > > > >
> > > >
> > >
> >
>