Do the Supreme Court's federalism decisions protect liberty?

[Jack Balkin]

At 12:01 AM 11/15/02 -0800, you wrote:
>Date:    Thu, 14 Nov 2002 13:11:31 -0500
>From:    Robin Charlow <LAWRDC at MAIL1.HOFSTRA.EDU>
>Subject: Re: Do the Supreme Court's federalism decisions protect liberty?
>MIME-Version: 1.0
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>  jack.balkin:
>Tobias was just arguing that Congress has the power to pass laws
>eliminating the badges and incidents of slavery.  That seems to me to be a
>pretty obvious extension of McCulloch.  And I'd argue that Congress has
>the power to pass any law that promotes equal citizenship, under the
>Citizenship Clause of the 14th amendment, again, based on McCulloch.
>
>Did you mean this to be less broad than Ilya's reading of Tobias'
>claim?  If so, it's hard to see.  Your reading seems similarly to justify
>a federal statute requiring the execution of all murderers for the
>protection of minority victims (promoting equal citizenship of these
>persons, or removing the effect of these social ills that are, broadly, an
>"incident" of prior slave status).

I assume you're talking about a statute imposing the death penalty for
killing someone who is a racial minority.  I think that one would violate
the equal protection clause, wouldn't it?


>   Likewise, though a bit more difficult but not impossible to justify, a
> ban on abortion to reduce the number of unequal unborn citizens.


Wouldn't that one violate the Due Process clause under Roe v. Wade?

>   On the other hand, perhaps you did not really intend a narrower reading
> in the context of your federalism argument as a whole.


Robin, I think what may be puzzling you here about what I've said is that
the claim that the feds have the equivalent of a general federal police
power through the Commerce, Spending, and Reconstruction powers *doesn't*
mean that the feds can violate separation of powers or rights provisions of
the Constitution.  It just means that they are not limited as to the
*subject matter* of legislation because that subject matter is inherently
local or inherently a matter of state regulation.  So of course Congress
can pass laws protecting minorities under its Reconstruction power, but it
must do so consistent with EP, and of course it can legislate on abortion,
but it must do so consistent with Due Process.

Jill Hasday's work was mentioned previously, and I want to mention Jill's
article on the bifurcation of family law in Georgetown L. J., in which she
argues that in fact we have plenty of federal family law-- we just do it
through the spending power, not the commerce power, and we impose it on
poor people, not the middle class.  Put another way, Jill argues that
welfare law has historically been designed to regulate families,  and that
it regulates poor families in ways that middle class voters would never
stand for if it were applied to their own conduct.  So far as I know,
conservative Congressmen have not, as a rule, objected to promoting "family
values" through welfare reform because that would invade an inherently
local subject of regulation that must be left to state governments.

Jack Balkin