Federalism and liberty

[stoke001 at maroon.tc.umn.edu]

Marci Hamilton writes:  "Michael Paulsen makes the point, shared by
many, that the 14th Am. realigned the power relationship between the
federal and state governments to the extent that federalism concerns
should not be taken into account when courts are interpreting Sec. 5."

That is a ridiculous caricature of my point.  My point is that
"Federalism concerns" are properly applied to limit federal
government power only to the extent they are actually reflected in the
constitutional text.  There is no general "federalism limitation" on
the scope of an enumerated constitutional power.  The only question is
what is the actual scope of an enumerated constitutional power.

Marci's response to that point strikes me as not coherent:  "The
record (precedential, societal, or historical) just does not bear this
[the position attributed to Paulsen] out in my view.  But, as I have
said many times, I don't think the record is particularly clear in any
direction."  The difficulty with Marci's view is that, on the
assumption that the exact scope of the Fourteenth Amendment (and
consequently the enforcement power) is *unclear*, then the courts
cannot easily say that a piece of congressional legislation is
inconsistent with some rule of law specified in the constitutional
text; nor can they say that the enactment is beyond the scope of the
enumerated power.

Marci's final point is that, though we do not know what the Fourteenth
Amendment means, we know that "the concept of a federal government
as one of enumerated powers was not undermined and the 10th Am. was
not repealed.  Those two structural characteristics counsel a narrow
(textualist, if you will) reading of Congress's power against the
states under Section 5."  This is mostly question begging.  To be
sure, the fourteenth amendment does not alter the fact that the
federal government is one of enumerated powers.  But the fourteenth
amendment is a *big new enumeration of federal power*.  That is the
point Marci does not adequately address.  Moreover, that power is set
forth in broad, indefinite terms.  If *McCulloch* is the standard --
and there is significant historical support that the language of
section five is designed to track the *McCulloch* interpretation of
necessary and proper -- this amounts to a large reallocation of
authority to the federal government.  Note carefully:  The fourteenth
amendment does not change the *character* of the federal government as
one of enumerated powers (I have no argument with Marci on that
point), but it does change the *corpus* of enumerated powers, in an
undeniably substantial way.

Does the 10th amendment constitute an independent substantive
limitation on enumerated powers?  No.  Does it support adoption of a
*rule of construction* that enumerated powers be narrowly construed
(as Marci seems to say)?  Possibly, but that is in considerable
tension with McCulloch.  If the adopters of the fourteenth amendment
did not "repeal" the tenth amendment, neither did they seem to dispute
the settled understanding that the tenth did not constitute a separate
limitation on the scope of enumerated powers.

In the end, Marci concludes that these points lead to the conclusion
that section five should be construed in a "narrow (*textualist, if
you will*)" [emphasis added] manner.  I agree that section five should
be construed in a textualist manner.  But I do not agree that
textualism supports a *narrow* interpretation.  The "narrowness" that
Marci mistakenly equates (equivocates?) with textualism is supplied
entirely by the importation into the text of a free-floating
federalism principle that is not supported either by the fact that
the federal government is one of enumerated powers or by the text of
the tenth amendment.

Michael Stokes Paulsen
University of Minnesota Law School