who is a federalist?
markstein at prodigy.net
Fri Sep 15 20:25:54 PDT 2006
The term "federalism," when used to describe a normative view, is largely arbitrary. In other countries, it means support for a stronger federal government; in the U.S., it generally means support for a weaker federal government (though it had the opposite meaning in the past).
The only non-arbitrary normative meaning of "federalist" would be one tied to the positive meaning of federalism: someone who supports SOME constitutional division of power between the federal government and the states.
Is it possible, then, to say that in the 1990's, the conservatives on the Rehnquist Court were "federalists," in a non-arbitrary normative sense, because they were opposed by liberals who were unwilling to recognize any federalism-based limits on the power of the federal government? Assuming that the liberals would have treated the Commerce power as a general police power, allowed Congress to subject states to private suit in all federal-question cases, and allowed Congress to commandeer state officials in all cases, could the liberals claim that they were "federalists" because they recognized federalism-based limitations on the federal government in other areas (e.g., application of the 11th Amendment to diversity jurisdiction)? Could the liberals claim that they were "federalist" because they often supported a less aggressive approach on preemption than the conservatives? An argument against the latter claim could be that resistance to preemption does not imply any
constitutional limit on the power of Congress. Could the liberals reply that a presumption against preemption has constitutional status as a limit on the power of federal courts?
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