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Sunday, July 01, 2012
Why does the Left fear constitutional federalism so much?
In this Sunday's New York Times, Pam Karlan darkly warns us that, although the Left dodged a bullet with the decision upholding the ACA, the Roberts Court's decisions limiting the power of the federal government "may come back to haunt liberals." The Roberts Court's precedents cutting back on the Congress' spending power, the commerce power,and the power to enforce the Civil War Amendments is a "loaded gun" that aimed right at "Americans who care about economic and social justice."
I am a little confused by Pam's assumption that constitutionally protected federalism is a gun aimed at the Left. It is not obvious (at least to me) that a Congress with unlimited power is an unalloyed benefit to liberals' ideas of "economic and social justice." The Congress can, after all, enact laws that undermine as well as advance a liberal agenda: Why not view constitutional limits on Congress' powers as an insurance policy against such laws in case the Republicans take control of the commanding heights of the federal government? Conservatives, after all, have proposed or enacted federal legislation outlawing same-sex marriage, requiring state and local governments to pay hefty compensation for environmental regulations, "commandeering" local law enforcement officials into assisting the feds in apprehending undocumented aliens, and barring federally funded universities from excluding military recruiters from interviewing job candidates on campus. The constitutional limits imposed on Congress by the Rehnquist and Roberts Court place obstacles in front of these conservative measures as well as liberal measures. The Roberts Court's strengthening of the "nexus" limit on Congress' spending power, for instance, could have prevented the Solomon Amendment. The anti-commandeering doctrine has helped protect subnational initiatives legalizing medical marijuana. Even federal laws that Pam favors can be used to undermine causes like racial equality: Republicans in Southern state houses right now are busily invoking the Voting Rights Act as a cover for "packing" black voters into majority-minority districts, thereby insuring that the Democratic Party is identified exclusively with one race and that Republicans gain a lock on state legislatures elected by white majorities. Is judicial deference to such a view of federal law a good thing for Pam's vision of economic and social justice?
The assumption that a strong Congress invariably benefits "economic and social justice" assumes that there is an uncontroversial notion of "justice" out there that Congress will always advance and the states, always retard. But the best justification for federalism is that, because We the People passionately disagree about what constitutes "justice," it is prudent to place some limits on any single faction's imposing its particular version on the entire nation through national law. The precise nature of those limits matter, of course: I can imagine versions of constitutional federalism that might favor the Right (say, by depriving Congress of power over redistributive policies that stats cannot practically enact). Aside from Douglas v. Independent Living Center, however, no Roberts opinion comes close to touching Congress' power to create social insurance and social welfare systems (and Douglas was unanimous -- hardly a partisan coup). The general idea of such constitutional limits, by contrast, is not a gun aimed at either the Left or the Right. Unless one naively believes that one's own faction will always control Congress, such limits are just sensible hedging of one's bets.
Pam cannot possibly believe that the Democrats, let alone liberals, have a lock on Congress. So why does she seem so dead-set against some constitutional constraints on what Congress can do?
Posted by Rick Hills on July 1, 2012 at 01:49 PM | Permalink
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If "social justice" requires plenary centralized power, then that's an even better reason to oppose it.
(Contra Joe, while the op-ed spoke of "Liberals" and "Conservatives", the set opposed to the limits in question was the "Liberals", not both.
And self-labeled "Liberals" are ... what, exactly, if not people of the Left?
The term is in common use and is not itself derogatory enough to be worthy of condemnation*, any more than the "Right" is when used of the Conservatives, also self-labeled.
* It's only derogatory at all in that so much historical Leftism in the US has been so dismal that nobody wants to be tarred with that brush. Which is also why "Progressive" is so popular again. Keep changing names and keeping the same platform, and I'm just going to say "Leftists".
Because they are, by every historical use. For a broad overview, see here. Even Wikipedia isn't always wrong, and that overview of the history of the term "Left"/"Left-wing" in politics seems pretty direct and historically accurate... and the terms used are not exactly hostile to the Left, are they?)
Posted by: Sigivald | Jul 9, 2012 6:57:35 PM
"the Left" is an amusing term really. The actual op-ed spoke about "liberals" and "conservatives," not "the Left" (capital "L") as such.
"nationalized government"
Another interesting term. Some people think Congress has certain powers and should use them in certain ways. Liberals think Congress should, e.g., not pass national anti-abortion laws and many are not big fans of our drug policy. Given their druthers, they would, e.g., support a more decentralized policy on marijuana.
So, they don't want a "nationalized government" as such. One reason they want the federal government to pass certain types of laws is that they think (as did the Framers) the states are not to be trusted in certain ways, certain things national. Liberals would be less concerned, perhaps, if all the states were run by liberals, but even if every state was liberal, they would probably think a national social security law or such would be appropriate.
Posted by: Joe | Jul 9, 2012 11:00:12 AM
I'm a lot more cynical than most of the commenters here.
I think the Left's preference for nationalized government stems from the fact that for the last 70 years, the Left has more often than not been ascendant in Washington, but only occasionally has the Left been in undisputed control in more than half of the states. Furthermore, in only a relatively few of the thousands of units of local government in the US is the Left consistently dominant.
Posted by: A-Dog | Jul 9, 2012 10:50:04 AM
Greg O is on the right track. The reason why leftists prefer fed laws rather than state laws is that at the state level there is competition between states to provide feedback, while at the fed level there is none (unless you count other nations, most of which are even more leftist). If leftist dems raise taxes and spending at the state level, their state immediately loses businesses and gains deadbeats (witness CA). This makes the failures of their ideas obvious by comparing states like CA and TX. But at the national level, when leftists fail, they fail throughout the entire country, so we have no basis for comparison, and this makes the failure less obvious.
Posted by: richard40 | Jul 7, 2012 8:44:46 PM
Let me offer a supplementary hypothesis:
1. "Left" and "right" are code for the distinction between the attitudes and ambitions modal among the professional-managerial bourgeoisie (on the one hand) and what is modal among an amalgam of the common-and-garden bourgeosie and skilled workers (on the other), with the remainder of the population lining up according to communal factors and bare economic interests, &c.
2. The more ensconced someone with discretionary authority is in the social world of the vernacular culture, the less likely they are to initiate our countenance the pet projects of their social betters.
3. Hence, decision making authority needs to travel from municipal councils and school boards to county councils, from county councils to state legislatures, from state legislatures to Congress, from elected officials to civil servants, and from civil servants to judges (aided by the public interest bar and the law professoriate) and professional guilds.
Posted by: Art Deco | Jul 7, 2012 8:32:31 PM
"I am a little confused by Pam's assumption that constitutionally protected federalism is a gun aimed at the Left."
Really? Have you not observed what happens when the Left gets power? They impose laws, the laws screw things up, and make things worse off, then the Left using the even more screwed up situation as "justification" for why the government needs more power.
In a true federalist system, where this experimentation is done at the State level, people get to move away from the crappy leftist laws, and towards places with more intelligent, less destructive, laws. See, migration out of CA, and to TX, for example.
It's only when the idiocy is being done at a Federal level that people can't escape from it. It's only when it's done at the Federal level that you can't compare between those who've imposed the left-wing policies, and those who haven't, and thus can't get re-world data on how destructive a policy actually is.
Why does the Right favor Federalism? Because we know our ideas actually work. Which means we're willing to try them out at the State level, and show that States following our policies are better off than States following the Left's policies.
Forcing the Left to actually try out their policies at a lower level, and letting people see the results of the policies before everyone else is stuck with them? That is a "dagger to the heart" of anyone who advances policies that don't actually work. Clearly, Pam Karlan knows that's her side, the Left.
Posted by: Greg Q | Jul 7, 2012 6:59:22 PM
I think Joey's first comment was about right. It seems to me that federalism is anti-progressive not so much because it limits what the /federal/ government can do, but because it limits what the federal /government/ can do. Progressivism is the application of government power. Even assuming that state power has equal utility to federal power, anything that limits federal power without a zero-sum gain the power of state government thus diminishes the total stock of government power available for progressives to apply. What kind of workman could be happy with a philosophy that he must work using fewer essential tools?
Posted by: Simon Dodd | Jul 7, 2012 12:08:11 PM
@ JVDH
Sorry, hit post too soon.
"I call this argument the Reductio ad Bush v. Gore argument. Good luck cleansing that stain from the memories of those whom you suggest should stop worrying and just learn to love the Tenth Amendment."
You mean where a partisan democrat dominated Florida Supreme court tried to engineer a win for Gore by permitting differing standards by county for evaluating ballots to deliver a win to Gore he did not deserve? Where the laws of Florida clearly prohibit such and the FLA SC was ignoring that law for partisan purposes? Where the US SC properly halted that nonsense by insisting on equal treatment of US citizens ballot by the courts of law? Where later recounts by newspapers show ad nauseum Gore lost Florida?
"If there does happen to be an "uncontroversial notion of 'justice' out there," it includes prominently the idea that Jim Crow was wrong and an affront to what you quite correctly call the Civil War Amendments. The greatest success of the Left in the 20th century was in getting those Amendments actualized in their intent (more equality) through the use of the tool they created (federal power over state Bill-of-Rights violations)."
The trouble is the Left was using those amendments in a manner not in keeping with their wording and for partisan ends to frustrate the just purposes of states in making balloting drastically less susceptible to fraud in voting. The Left really has no just objection to measures which cost people nothing except five minutes of their time, and do so in manner not disparate between the races--especially when provisional ballots mean anyone can cast a ballot even without ID.
Those ballots will be counted after the persons validity to vote is verified, and the after all the Dems can still cheat by fraudulent counting.
What's their real beef?
Posted by: Tom Perkins | Jul 7, 2012 11:01:42 AM
"If there does happen to be an "uncontroversial notion of 'justice' out there," it includes prominently the idea that Jim Crow was wrong and an affront to what you quite correctly call the Civil War Amendments."
You mean where a partisan democrat dominated Florida Supreme court tried to engineer a win for Gore by permitting differing standards by county for evaluating ballots to deliver a win to Gore he did not deserve? Where the laws of Florida clearly prohibit such and the FLA SC was ignoring that law for partisan purposes? Where the US SC properly halted that nonsense by insisting on equal treatment of US citizens ballot by the courts of law? Where later recounts by newspapers show ad nauseum Gore lost Florida?
Posted by: Tom Perkins | Jul 7, 2012 10:44:59 AM
"If there does happen to be an "uncontroversial notion of 'justice' out there," it includes prominently the idea that Jim Crow was wrong and an affront to what you quite correctly call the Civil War Amendments."
That's certainly true, the trouble is the Left was using those amendments for unconstitutional partisan purposes which did not further the purpose of those amendments, and which were and are not justified by their wording.
Posted by: Tom Perkins | Jul 7, 2012 10:40:07 AM
Isn't it obvious?
If you let states' have right, why you cannot nanny them appropriately from DC, New York City, or San Francisco!
Posted by: Cobacoba98 | Jul 7, 2012 2:00:28 AM
The main "test" of government power is to imagine it in the hands of your most hated political enemy. If you are afraid of them having that power, don't advocate it. There is no such thing as a "permanent majority", and given history, your political opponents will be running things at least 40% of the time no matter what your party happens to be.
Also, don't place too much stock in demographic bets or anything else cementing your "team" in place. This tends to not work as long as people hope.
Posted by: Foobarista | Jul 7, 2012 1:41:07 AM
i think there's a much shorter explanation for the truth (i believe) you state lorenz and that is that we're beginning to run out of money. greece, spain, portugal, italy and i'm afraid your beloved france is on the same path. margaret thatcher said it best, "the problem with socialism is that sooner or later you run out of other people's money."
Posted by: christopher hubbard | Jul 7, 2012 12:50:34 AM
you're half right JWnTx. government can and should create social change when it comes to enforcing the law and protecting people's rights per the constitution. nobody could say that amending and enforcing the 13th, 14th and 15th amendments haven't had a profound change within and on society. and for the better.
where lefties go wrong is when they think, to use this very good example, that the purpose is "social" instead of individuals and that therefore it is good, and right and just. it is good and right and just to protect the rights of black people as much as white people and everyone else regardless (not because of and this is where lefties get equal protection backwards) ones skin color.
therefore the "social" goal or aim is irrelevant to applying and making real the guarantee of liberty and equal justice under the law. that it has a "social" effect or impact is immaterial to the justness or rightness of the law.
the fundamental problem with the way lefties see the world is that everything is about people in the plural as members of this or that group; religious, racial, class, etc. instead of as a unique individual created in god's image. natural rights begins from this fundamental premise and it is at odds with the very notion of "social" justice.
Posted by: christopher hubbard | Jul 7, 2012 12:34:50 AM
Unlike the French, the US is still on its first republic. It is amazing that a constitution written in the 18th century is still viable today and can be passionately argued about by both sides. In France the universal brotherhood of 1789 turned into the Terror of 1793 and Europeans have been trying to get it right ever since and look about to fail again - and I am not least bit happy about that. I think the great virtue of the American system has been that it could change when faced with crisis. The Federal government became much more dominant, as Lincoln put it, "to preserve the Union." FDR certainly made changes still argued over today to try deal with the depression, but the country survived and did pretty well. We seem to have reached another crisis that is going to require major structural changes to our economy and our political arrangements. I don't think the progressives have the answers because I think the era where big government is the main part of the solution is over and constitutional restraint of that centralist tendency is part, but only part, of the solution. The rest of the solution, if it lies within our grasp, will contain a great deal that is new. I think it is a known unknown.
Posted by: Lorenz Gude | Jul 7, 2012 12:30:58 AM
i think the answer to your question was in the last sentence of the first paragraph that referenced "economic and social justice." ding. ding. i hope i'm not interpleading into your conversation but most americans, including a fair amount of folks like me with law degrees reject the entire notion of "social" justice. there is no such thing as "justice" for society, only for individuals and parties. you explain that rather well with your statement that rarely are ideas of "justice" clear and consensual. and certainly not final. that's why there is always another election.
speaking only for myself i would love to see the day when the pernicious "aggregate and cumulative effects" doctrine at the heart of wickard is overturned (small chance i know but there is virtue in being a lone courageous justice and i think clarence thomas the modern day version of justice harlan) and property rights and the freedom to contract restored for economic freedom is essential to liberty.
i know that lefties and progressives don't believe in that and think that economic regulatory schemes with their rube goldberg wage and price controls be it on milk, of wheat farmers, regarding hours one can work at a bakery, etc. are sacrosanct but there is much out there in the way of scholarship that proves (correctly i would argue) that the entire new deal was a waste of time and money. most important for our purposes here, none of it would have happened without the supreme court enabling congress via the judicially created notion that ours is a "living" constitution instead of the more correct one that it is and always was one of limited and enumerated powers. if you doubt this, reread the federalist papers.
Posted by: christopher hubbard | Jul 7, 2012 12:02:45 AM
I think that the whole idea that government can (or even should) create "equality" out of thin air is absurd. Yes, we can write laws so they don't discriminate against one class or another. But believing that government can affect social change is a fool's errand. Any attempt to create equality in the social realm is doomed to creating other imbalances and the alienation and resentment of another class such that we're constantly trying to adjust and readjust policy to correct this or that imbalance. Government's job is to write law that applies equally to all Americans. Beyond that, it's up to individuals to affect social change--not government.
Posted by: JWnTX | Jul 6, 2012 11:42:51 PM
Rick,
Wonderful post. I self-identify as a liberal but my legal education took place after Akhil Amar and others demonstrated so persuasively why (to paraphrase those old orange juice commercials) federalism is not just for conservatives anymore. I get quite disheartened by "old school" liberals who seem to be forever fighting the last war. We shouldn't forget Jim Crow, of course, but we also shouldn't make him the star around which our constitututional solar system revolves.
Posted by: Michael J.Z. Mannheimer | Jul 5, 2012 3:11:17 PM
"a Congress with unlimited power"
I continue to find this a misguided turn of phrase in this context. Pam Karlan, e.g., doesn't think Congress has the "unlimited power" to pass abortion regulation. Upholding the PPACA does not provide "unlimited power" as Ginsburg's opinion reaffirmed.
The fact it avoided to draw federalism limits (though Thomas concurred to note them -- why not take up the question then? or red flag the issue in the majority opinion to send a message that you care?) when single abortion procedures were being regulated is a tell here. The current USSC repeatedly limits enumerated powers in a conservative direction. This is a trend not an absolute rule.
Maybe, if the same federalism concerns Scalia/Kennedy used here were applied to Raich, Karlan might be less wary. The wariness as comments here note isn't irrational. It is a blind-spot to miss this.
Posted by: Joe | Jul 4, 2012 11:51:56 AM
Here is an example of the liberal mindset with regard to state-by-state policymaking: the liberal blogger Digby reacting to an essay by Douglas Holtz-Eakin.
"A superior option would be the flexibility to address the needs of the sub-poverty populations on a state-by-state basis in ways consistent with each state’s norms." --Holtz-Eakin
Digby: "Right. And if a state's "norms" is to let people die it would be wrong to interfere. People are different! We shouldn't inflict our values on them. Letting some Americans languish in poverty and illness and die early preventable deaths while others are allowed to have health care and security -- all on the basis of some arbitrary lines drawn up long ago --- is a perfectly respectable moral position. No biggie."
In a way, I suppose I'm offering a different answer to go along with the one I offered before. To wit: Liberals are suspicious of federalism for strong historical reasons; but also, they are dissatisfied with federalism because they are motivated by universalist moral considerations.
Again, just being descriptive, not normative.
Posted by: Jim von der Heydt | Jul 4, 2012 12:04:11 AM
sorry for the double posting. Also sorry for saying 'patent' when I meant 'copyright.'
Posted by: Jim von der Heydt | Jul 1, 2012 7:08:21 PM
Rick, the fact that they are older doesn't make your 18th and 19th century examples more 'historical' than mine; it makes them less relevant. In thinking about the current uses of federal vs state power, should the Left be looking to the 20th century or the 18th/19th? I think the question answers itself, although I admit you have a good (though impractical) point about ERISA.
"The notion that any plausible limits on Congress' commerce clause power threaten federal regulation of industry is sheerest paranoid fantasy."
In light of the news today that for eight weeks the Court was writing opinions striking down the entirety of a massive overhaul of the incontrovertibly interstate healthcare and health-care financing industry, I think this sentence is hilarious.
Don't shoot bullets past the head of the Left and then try to say it's paranoid about judicial snipers.
And this week's example underscores the other obvious premise of people like Karlan or me: real-life conservative justices cannot be trusted to apply federalism doctrine evenhandedly. The Disney patent case is only the most obvious example of Scalia et al. ignore their own doctrines when someone tries to turn them to anti-corporate ends. Raich is the obvious example of the exact same maneuver in the realm of 'freedom to be left alone' generally. Federalism is a tool for cherry-picking, and ideological judges will use it that way. You'll forgive the Left for not acceding to the growth of a doctrine developed and deployed by intensely conservative jurists who are willing to ignore it when they like.
I call this argument the Reductio ad Bush v. Gore argument. Good luck cleansing that stain from the memories of those whom you suggest should stop worrying and just learn to love the Tenth Amendment.
JvdH
Posted by: Jim von der Heydt | Jul 1, 2012 5:47:15 PM
Rick, the fact that they are older doesn't make your 18th and 19th century examples more 'historical' than mine; it makes them less relevant. In thinking about the current uses of federal vs state power, should the Left be looking to the 20th century or the 18th/19th? I think the question answers itself, although I admit you have a good (though impractical) point about ERISA.
"The notion that any plausible limits on Congress' commerce clause power threaten federal regulation of industry is sheerest paranoid fantasy."
In light of the news today that for eight weeks the Court was writing opinions striking down the entirety of a massive overhaul of the incontrovertibly interstate healthcare and health-care financing industry, I think this sentence is hilarious.
Don't shoot bullets past the head of the Left and then try to say it's paranoid about judicial snipers.
And this week's example underscores the other obvious premise of people like Karlan or me: real-life conservative justices cannot be trusted to apply federalism doctrine evenhandedly. The Disney patent case is only the most obvious example of Scalia et al. ignore their own doctrines when someone tries to turn them to anti-corporate ends. Raich is the obvious example of the exact same maneuver in the realm of 'freedom to be left alone' generally. Federalism is a tool for cherry-picking, and ideological judges will use it that way. You'll forgive the Left for not acceding to the growth of a doctrine developed and deployed by intensely conservative jurists who are willing to ignore it when they like.
I call this argument the Reductio ad Bush v. Gore argument. Good luck cleansing that stain from the memories of those whom you suggest should stop worrying and just learn to love the Tenth Amendment.
JvdH
Posted by: Jim von der Heydt | Jul 1, 2012 5:47:09 PM
PG, the only reason that Bush proposed a constitutional amendment to ban same-sex marriage is that he believed -- correctly -- that the Rehnquist Court would have struck down a mere statutory ban as exceeding Congress' Article I powers.
As for spending power limits, the Solomon Amendment was effective only because the Court tolerates an attenuated nexus between the magnitude of the burden on the federal interest from non-compliance with a federal condition and the magnitude of the federal money to be forfeited for non-compliance with that condition. If Article I's spending power were construed to require a tighter nexus, akin to the nexus required in Grove City v. Bell, 465 U.S. 555 (1984), such a requirement would mitigate the threat of forfeiting federal dollars, because the amount at stake would be far lower.
As for the U.S. Attorney's recent efforts to step up enforcement of the Controlled Substances Act against medical marijuana, I assure you that they will be as ineffective as the older efforts. Outnumbered roughly 7:1 by state and local sworn officers, the feds have no serious chance of suppressing marijuana use without the cooperation of non-federal assistance.
Posted by: Rick Hills | Jul 1, 2012 4:56:06 PM
Ugh, didn't realize that HTML gets deleted from comments. The quotes from the post were meant to be in italics, and the "Apparently not very effectively" was meant to link to "Cities Balk as Federal Law on Marijuana Is Enforced," available at http://www.nytimes.com/2012/07/01/us/hundreds-of-california-medical-marijuana-shops-close.html
Posted by: PG | Jul 1, 2012 4:41:04 PM
Conservatives, after all, have proposed or enacted federal legislation outlawing same-sex marriage
What federal legislation is this? Conservatives have proposed Constitutional *amendments* barring SSM, but of course SCOTUS is powerless against such amendments. DOMA is subject to Art. III courts' review, but it doesn't outlaw SSM at all; it says the federal government will not recognize such marriages, which conflicts with the historical treatment of marriage by the feds (recognizing all marriages that are recognized within citizens' state of residence) but otherwise seems like a reasonable exercise of Congress's power to legislate for the feds.
barring federally funded universities from excluding military recruiters from interviewing job candidates on campus. The constitutional limits imposed on Congress by the Rehnquist and Roberts Court place obstacles in front of these conservative measures as well as liberal measures. The Roberts Court's strengthening of the "nexus" limit on Congress' spending power, for instance, could have prevented the Solomon Amendment.
How so? The Roberts Court, in a 9-0 opinion authored by the Chief, held "It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly," through Congress's broad power regarding military recruiting. One can argue that the Court avoided discussing Spending Power limits, but it said clearly that no limit on the spending power could have prevented Congress from mandating military recruiters on campus: "Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment’s access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds."
The anti-commandeering doctrine has helped protect subnational initiatives legalizing medical marijuana.
Apparently not very effectively.
So why does she seem so dead-set against some constitutional constraints on what Congress can do?
But of course she isn't dead-set against some constitutional constraints on what Congress can do. I'm not perfectly familiar with her views, but she presumably was very much in favor of the idea that the First Amendment constrained Congress's ability to force law schools to accept military recruiters on campus. I'm betting she'd also argue that the 14th Amendment right of equal protection should prevent Congress from same-sex marriage bans. Where you disagree is that she doesn't see Art. I -- setting out Congress's powers -- as the best source of constraint on Congress.
Posted by: PG | Jul 1, 2012 4:37:54 PM
To the contrary, Jim: I'd say that your perspective is the ahistorical one.
Insofar as economic regulation is concerned, there are only two brief periods in which the feds took an economically egalitarian stance when compared to states. These two periods -- the New Deal (20 years) and LBJ's Great Society (six years) -- are dwarfed by the entire 18th and 19th centuries, during which the Republican business interests depended heavily on the federal courts to suppress Granger laws, state bond repudiations, state debtor relief laws, and the like. Ed Purcell's book, "Litigation and Inequality," is one of many antidotes out there to the ahistorical notion you peddle that the feds have stood for equality and the states, inequality. (Why else do you think that American business interests consistently championed federal power over state power as Federalists, Whigs, and Republicans, for more than a century?)
Looking more recently, just on the issue of health care, federal preemption has been a major factor in suppressing states' efforts at healthcare finance, many of which were more radical than ACA. ERISA's preemption of state "single payer" laws likely eliminated state laws that would have been more far-reaching than ACA. The Kucinich Amendment vainly sought to authorize state "single payer" laws, but it was defeated by the usual array of gridlock that prevents Left legislation from getting through Congress.
It is a fair response that constitutional federalism, as currently understood by the court, will do nothing much to stop laws like ERISA, because these measures fall plainly within the narrowest current understanding of Congress' commerce power. (Being a wild-eyed federalist myself, I'd urge constitutional theories that would limit such preemption -- but I realize that I am a loner in this respect). But, by the same token, it is a fair response to Pam that she is crying "wolf!" regarding more judicial scrutiny of federal economic regulation: The notion that any plausible limits on Congress' commerce clause power threaten federal regulation of industry is sheerest paranoid fantasy. Republicans and capitalists depend on such federal statutes to preempt state laws: They'd never allow the Court to limit Congress' powers to enact precisely what, for most of U.S. history, industrialists have eagerly championed.
Posted by: Rick Hills | Jul 1, 2012 4:35:05 PM
Okay, Rick, I have no dispute with you as long as you were only pretending to be puzzled about Ms. Karlan's premises. Her premises may or may not be truer than yours, but they are firmly rooted in many years of history, and for progressives those years (esp. the Civil Rights Era) are a founding myth that matters very much.
Your abstract observation about how federal power could be used in anti-Left ways stands up fairly well -- although often deregulation is possible only because Congress has previously regulated. Consider for example the antitrust laws, which we take as a given part of the backdrop of everything but are in fact highly intrusive fixtures of Hamiltonianism.
The inverse examples of Congress superseding state regulation are only now beginning to mount up beyond the infinitesimal; generally federal statutes have had explicit carve-outs for state rules that are stricter than the regime imposed by DC.
My point was that your observation is pretty abstract and non-historical. I think that's true: the things you're highlighting, although they have happened and could happen, have in the annals of actual US history happened a lot less often than the opposite things.
(In fact, I call this argument the Reductio ad types of stuff that happened rather than the opposite type of stuff that happened much much less often.)
By the way, it's a little odd that you're scolding liberals for undervaluing state power at this particular moment, when they've just finally gotten a foothold with a very, very promising health-care-financing reform initiative tested in the laboratory of Massachusetts (showing liberal willingness to work from the ground up) and likely to work significantly better nationally than it does at the state level (because of race-away-from-the-top concerns JF invokes, which suggest how state efforts have serious drawbacks for Leftish agendas). I think progressives' view of how state government fits in to the things they want to accomplish is pretty coherent.
Jim
Posted by: Jim von der Heydt | Jul 1, 2012 4:08:08 PM
Well, Joey, maybe I am only "pretend surprised," Joey: Yes, I am aware that the Left, in general, and Pam, in particular, has a bias for a nationalistic Constitution.
But I think that it would be prudent for the Left to temper its bias for Union Blue with a more sophisticated theory of federalism than a mere "reductio ad Jim Crowum" deployed by Jim above. The notion that the feds are a benevolent beast with the brain of Burke Marshall, the steely will of LBJ, and the heart of Lincoln is not a theory of federalism: That's just nostalgia -- and pretty dated nostalgia at that.
Here are two reasons why I think that Left's fear of constitutional limits on Congress is overblown:
(1) National law can be de-regulatory as well as regulatory. There is a popular notion that unlimited congressional power gives the Left two bites at the regulatory apple. As you put it, progressives need government to accomplish their goals.
But much federal law is aimed at eliminating subnational regulation. Conservatives are champing at the bit to use abroad commerce power to sweep away subnational environmental laws (green taxis in NYC, green building codes in Albuquerque, etc, etc) with preemption clauses in federal statutes. Likewise, absent limits on section 5 of the 14th Amendment, the Congress could shut down subnational environmental law with a robust federal statute on regulatory takings. Historic landmarking laws are threatened by RLUIPA in a similar way.
More generally, an unlimited congressional power to champion "rights" is an unlimited power to champion property rights, contract rights (recall the labor injunction), rights to be free from race-base student assignments (recall Parents Involved), and so forth. In short, a love of robust regulation does not translate into a hatred of limits on Congress' jurisdiction, given that much of what Congress does is essentially deregulate.
(2) Local majoritarianism is not always the enemy. Yes, of course, I can imagine that the Left might sometimes welcome efforts to protect certain discrete and insular minorities. But they should fear other efforts: Not every discrete and insular minority is a darling of Progressivism. Federal solicitude for that most discrete and insular minority of them all, the owner of investment capital, led to 44 years of the labor injunction (1886-1932), a federal device that shutdown the labor movement when it had substantial support in many states.
I think that law schools need to graduate beyond "Federalist #10" and read a little Woody Holton (of "Unruly Americans" fame). Madison, after all, was championing the rights of bondholders and slaveowners. Both of these two groups frequently fit your description of "person[s] being subordinated by the community they live[d] in," who most definitely wanted "rights-protection" from a "larger, more distant government that can come in and do something about the discrimination around [them]." They got it, too, in the form of the Contracts clause and the Fugitive Slave Acts of 1793 and 1850. But I would not call these victories for progress.
Of course, there should be a TAILORED federal role in protecting CERTAIN minorities. Mine is merely a plea for a little more discrimination in these abstract attacks on discrimination. In an era in which the Left is organizing itself around attacks on the one percent, it sounds a little odd to structure a theory of federalism around the idea that minorities should invariably receive protection from subnational majorities.
But once one goes down the path of distinguishing "good" federal laws from "bad" ones, then one can see that there is a case for constitutional limits as a hedge against the latter.
Posted by: Rick Hills | Jul 1, 2012 3:45:27 PM
Rick,
Pam's Op-Ed, and your blog post above, are entries in a very long-running conversation, mostly on the left perhaps, about the liberal-conservative valence of federalism. In my view, the bottom line of that conversation is this: Certainly it is true that federalism sometimes allows states to do progressive things, and that many federal laws pre-empt and undercut such state-level progressive experimentation. (Heather Gerken made a progressive case for federalism "all the way down" by pointing out, among other things, some neglected ways devolving power downward can empower racial minorities; Rich Schragger has explored what progressive federalism can offer and there's a lot.) But in the end, there is no symmetry here. Limiting federal power does, as Pam argues, have a definite conservative valence. It is not even close. (I suspect we'll be hearing more about this in her Foreword.)
The reason for the big asymmetry, in my view, is an even more fundamental asymmetry: Liberals, or maybe I should say progressives, need government action to accomplish our goals. Moreover, over time we periodically need government to act in novel ways to address novel problems. Conservatives often need government action too, of course -- but it is not symmetrical. A government that does little or nothing is pretty conservative, overall.
Because many problems can be adequately addressed only at the federal level, this asymmetry in regard to the basic question of government power leads to an asymmetry in regard to federal power. Why can many problems be adequately addressed only at the federal level? Sometimes the reason is the free movement of people and goods and the problem of races to the bottom -- if no federal environmental law then polluters can just pick the least-regulatory state, etc. Other times the problem is that the entities that liberals want government power to regulate or constrain are more powerful than state governments; only the federal government is a sufficiently serious counterweight to get anywhere. Still other times -- and this one is more inchoate in my mind -- the issue is that when it comes to individual rights, although both liberals and conservatives have various individual rights they care especially about protecting, there is an asymmetry regarding the location of the problems and the solutions. I think of Judith Resnik's work here. If you're a person being subordinated by the community you live in, what you want in terms of rights-protection is some larger, more distant government that can come in and do something about the discrimination around you, which local elites would not challenge.
You sound surprised in this post -- and I guess I'm a little surprised that you're surprised. You know more about federalism than almost anyone. Pam's view can hardly be unfamiliar.
Posted by: Joey Fishkin | Jul 1, 2012 3:01:50 PM
As a purely practical matter, too, the Left has reason to hope that it will get stronger in Congress in the next few decades, as demographic trends do their thing w/r/t Hispanics and the ebbing of this large generation of especially affluent senior citizens. So the Left foresees less need for hedging, and hopes reasonably to be on offense at the federal level while the Right hopes to defend state-level redoubts under a newly invigorated Tenth-Amendment jurisprudence.
Posted by: Jim von der Heydt | Jul 1, 2012 2:40:24 PM
"Why does she seem so dead-set against some constitutional constraints on what Congress can do?"
I'm guessing it's because she has an awareness much more acute than yours of the course of 20th-century history.
If there does happen to be an "uncontroversial notion of 'justice' out there," it includes prominently the idea that Jim Crow was wrong and an affront to what you quite correctly call the Civil War Amendments. The greatest success of the Left in the 20th century was in getting those Amendments actualized in their intent (more equality) through the use of the tool they created (federal power over state Bill-of-Rights violations).
You could argue that that struggle is over; I think you're probably wrong, as your example about maneuvers to get around the intent of the Voting Rights Act suggests. (That example doesn't suggest to me that states should be given carte blanche, but the opposite -- the law should be improved if it's being circumvented. But this post isn't about the details.)
I suggest to you that even if you're right that federal power is no longer the best tool for advancing social equality (and then we should begin to count up which state governments could be such tools, and notice that many people will be left out, missing the point of the whole endeavor) -- even if you're right, I say, Ms. Karlan's emphasis on federal power as a crucial tool of the Left is the opposite of puzzling. Federal power defeated the Confederate Army and enacted the Lilly Ledbetter Act. In between there are 150 years of US history, prominently featuring, to choose an example at random, the Arkansas National Guard, that should show you where Ms. Karlan is coming from.
Maybe you're making a subtler point, but it seems to me that your post is willfully ignoring the historical facts that lead people on the Left empirically to believe that federal power is progressive, and state power is reactionary.
No one on the Left is in favor of un-hedging all bets -- but please note that the Left is more concerned with universal than with local well-being anyway. Many Jeffersonian ideals of the Right can be actuated on the state level, by having the federal government keep its hands off, but the Left can't win that way. The Lefty wants people in OTHER states than his/her own to have health care, access to abortion, and so on. Hence the Left project is inherently more suited to a Hamiltonian posture, because it is attentive to people who are getting outvoted in any subunit of government.
I don't mean this to advance a Leftish point of view particularly, but am speaking descriptively. As a descriptive matter, I find your puzzlement about Ms. Karlan's premises extremely puzzling. She is speaking with a basic awareness of American history; you seem to be focused on con law ex ante, in the abstract, as if the whole federal project had just been invented ten years ago.
Am I going off half-cocked? Set me straight.
Jim vdH
Posted by: Jim von der Heydt | Jul 1, 2012 2:37:26 PM
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