Conservatism, centralization, and constitutional federalism

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

The distinction between constitutional federalism and political federalism should not be viewed as merely a theoretical refinement bearing little relation to practical politics. The intense controversy over the role of the Supreme Court during the 1930s--a controversy that led to Roosevelt's court packing plan--was essentially a clash between these two paradigms of federalism. Those supporting Roosevelt's New Deal programs were, in effect, arguing that the common constituents wanted to readjust the boundaries between state and national authority; that, through the election of and continued support for those committed to New Deal policies, they had effectively rendered an authoritative decision validating the expansion of national authority. On the opposite side, of course, were those (mostly conservative) who contended that New Deal policies involved the usurpation of the traditional residual sovereignty of the states; that constitutional amendments expanding national authority were required before such policies could legitimately be put into effect. (6)

In surveying the political debates surrounding issues of federalism--e.g., the growing centralization of authority, decline of the states--both paradigms come into play, often in a mixed fashion. For instance, many conservatives, if we are to judge from their rhetoric over the decades, actually embrace both paradigms. Consider the familiar conservative refrain that the "downfall" of the Framers' federal design occurred with the passage of the Seventeenth Amendment that allowed for the direct election of Senators. From this point on, it is maintained, there has been no effective check against the aggrandizement of the states' residual sovereignty by the national government. This view, so far as it goes, is compatible with the political version of federalism; that is, whatever emerged from a the political processes when state "interests" had effective representation would not intrude upon the states' residual sovereignty. Yet, at the same time, conservatives--even those who embrace this view--also seem to cling to the constitutional conception of federalism. So much is evident in their common lament that since New Deal days the Supreme Court has largely abdicated its role as impartial arbiter between the states and national government. Clearly conservatives would prefer a double protection, political and constitutional, for state sovereignty, though at present they must necessarily be content with adopting and urging constitutional federalism.

There are, of course, practical, if not logical, difficulties with the conservative stance towards federalism. From a purely theoretical view, political federalism does not acknowledge a fixed, unalterable division of sovereignty between the state and national governments. As a consequence, the Court has no legitimate role in second guessing the outcome of the political processes which presumably embody the wishes of the common constituents. Likewise, constitutional federalism is not concerned with the political processes or whether state interests are effectively represented or not. Within this framework the concern is whether the outcome of the political process conforms with what is understood to be the constitutional division of powers. In this determination, of course, the Court would play a decisive role. And, while Publius is guilty of speaking with forked tongue regarding the resolution of state/national disputes, the weight of evidence supports the view that he embraced the political federalism paradigm; a paradigm, it should be added, that is far more compatible with his more general teachings as we will see immediately below.