Conservatism, centralization, and constitutional federalism

Modern Age, Wntr-Spring, 2004 by George W. Carey

Leaving these concerns to one side, Madison's discussion and Hamilton's statement regarding state residual sovereignty leads directly to what can appropriately be termed constitutional federalism. Simply put, this understanding of federalism derives from the divided sovereignty paradigm which envisions a constitutional division of powers such as that set forth by Madison and Hamilton; a division of powers that, perforce, can only be altered by constitutional amendment. The Supreme Court is the institution vested with the responsibility of maintaining this division, a function it should perform by impartially applying the "rules" of the Constitution.

The constitutional federalism "model" of state/national relations, it should be noted, was accepted, albeit intermittently, by the Supreme Court well into the twentieth century. Indeed, over the decades, the Court occasionally took great pains to confine Congress's commerce power in order to preserve what it perceived to be the constitutionally reserved powers of the states. At one point it drew a distinction between manufacture and commerce, there by limiting the power of the national government to curb monopolies under the Sherman Anti-Trust Act (1890). (2) In the famous Child Labor Case, Justice Day, speaking for a majority, went so far as to add the word "expressly" to the terms of the Tenth Amendment in striking down federal legislation designed to eliminate child labor. "In interpreting the Constitution." he maintained, "it must never be forgotten that the nation is made up of states to which are intrusted the powers of local government. And to them and to the people the powers not expressly delegated to the national government are reserved." (3) At various times, the Court further limited the reach of the commerce power by employing the "direct/indirect affect" test; that is, "where the effect of intrastate transactions upon interstate commerce is merely indirect, such transactions remain within the domain of State power." (4) The persistence of this constitutional federalism model over the decades is attested to by the fact that an amendment to the Constitution was felt to be necessary to impose prohibition upon the country. Today, ordinary legislation would suffice for this purpose--a fact that illustrates how much our understanding of federalism has changed.

Clearly this constitutional federalism proved incompatible with the underlying philosophy of the New Deal. In fact, its core principle of divided sovereignty, that the states possessed inviolable portions of sovereign power, provided solid grounds for declaring major New Deal policies unconstitutional. And when the Court, under intense political pressures, abandoned the constitutional federalism framework in 1937, thereby clearing the way for the New Deal, many observers felt that constitutional federalism, itself, had finally seen its last days. And so it seemed for a period of nearly sixty years as the Court in one decision after another clearly repudiated this framework. Yet, and somewhat of a surprise, there are indications that the doctrine might be coming back to life, the most important of these being the Court's decision in U. S. v. Lopez (1995). In this decision, almost universally hailed by conservatives, a majority of the Court returned to the constitutional federalism model to strike down the federal Gun-Free School Zones Act that banned all guns in the vicinity of public or private schools. More specifically, it held that the prohibited action did not "substantially affect" interstate commerce, which therefore placed the matter under state jurisdiction. (5)