federalism paranoia

[R. Shawn Gunnarson]

Jonathan Mallamud raises an important point: "[T]he present period is one
necessitating some Court-imposed limits on federal power." And I agree with him
that Ashcroft and Lopez are laudable decisions. (The reasoning in National League
of Cities, which required line-drawing based on traditional versus non-traditional
functions, quickly led the Court into conceptual trouble that I won't take time
here to rehearse.) Constitutional errors are finally being corrected, if only at
the margins. Moreover, unlike some members of this list, I think that religious
liberty can be better protected if constitutional limits on federal authority are
observed. The division of coercive power, which constitutional limits accomplish
when strictly observed, can favor religious liberty as much as any other sort of
liberty.

As much as I agree with Mr. Mallamud's post, however, I want to point out the most
glaring defect in the Court's federalism decisions. Members of the Court have
themselves observed that the Tenth Amendment is a weak textual basis on which to
rely for drawing in the reins of the Federal Government. The stronger argument is
to reinvigorate the old doctrine of enumerated powers. But here, too, there are
problems.

Is the doctrine of enumerated powers beyond resuscitation in the wake of legal
realism?  In asking this question, I assume that realism's core claim is that
judges decide cases primarily according to the facts, rather than according to the
law.  I also assume that "the doctrine of enumerated powers" means that the text
of the Constitution confers authority on the Federal Government to act only in
those areas of human conduct that the text specifies. In cases where the scope of
federal authority is at issue, I assume that legal realism will prompt a judge to
overlook the "formalities" of constitutional authority and instead to decide the
case--especially hard cases--so as to do "substantial justice." At its heart,
therefore, legal realism poses a direct challenge to an incorrigibly formalistic
doctrine like that of enumerated powers.

While I welcome the Court's modest efforts to mark outer boundary lines on federal
authority, I wonder whether the prevalence of legal realism will prevent the Court
from stopping, much less reversing, the centripetal force of six decades of
constitutional precedent.


R. Shawn Gunnarson
Maines & Loeb, PLLC