How Federalism Doctrine Can Acquire Bipartisan Appeal:
The Constitutional Values That Transcend Political Change

By VIKRAM AMAR AND ALAN BROWNSTEIN

Friday, Dec. 10, 2004

This is Part Two of a series of columns on whether and why constitutional law doctrines change when Presidents and Justices do. -- Ed.

There has been a great deal of speculation lately about how various areas of constitutional law may change as President Bush appoints new members to the Supreme Court. In Part One of this series, we looked at why, despite the likelihood of one or several appointments, most observers do not expect much revision of First Amendment free speech principles.

Our answer is that a broad and diverse collection of individuals and groups, with varied political ideologies and agendas, has come to benefit from, and thus see the utility in, vigorous free speech protections. Our general instinct is that constitutional doctrine is most stable when many different types of political groups and actors see its virtues from the perspective of their own self interest.

In Part Two, we attempt to apply this basic insight to the body of law surrounding federalism - the constitutional relationship between the federal government, on the one hand, and the state and local governments, on the other.

We will argue, as we did with free speech doctrines, that federalism doctrines will tend to be most secure if what goes around, comes around. If many different groups can expect to benefit from federalism at one time or another, then federalism doctrine will have an increased likelihood of outlasting transitory political shifts.

The "New Federalism" of the Rehnquist Court

Since the early 1990s, in half a dozen or so key opinions, a five-member majority of the Rehnquist Court has, in some respects, rediscovered the field of federalism. In so doing, it has reinvigorated principles of state sovereignty, and increased the states' protection from federal overreaching.

Any new Justices President Bush may appoint to the Court are likely to be equally interested in reshaping and refining federalism. But will this resurrected commitment to federalism remain an enduring constitutional value in the long run? Not necessarily.

There are real costs to a "states' rights" constitutional model. Specifically, the Rehnquist Court's so-called "new federalism" may, in some of its manifestations, result in a loss of national unity and cohesion; barriers to travel and to the free flow of capital and labor; increased political polarization and discord; the inability of government to address important problems that require national, not piecemeal, attention; and an increased risk that state authority will be misused against racial, ethnic, gender, religious and other powerless minorities.

Some of those costs may be overstated by the liberals who are cataloguing them. (In a similar vein, conservatives may have overstated the costs to social stability and community morality that arose from protecting freedom of speech in some of the cases from the 1960s and 1970s we addressed in our previous column.) But it is hard to deny that some costs will result from constitutional adherence to a states' rights model, because costs are inherent to the doctrine.

Federalism - like free speech - inherently prevents political majorities from exercising political power the way they want to. With free speech, even laws the nation overwhelmingly favors must fail if they amount to censorship. With federalism, even measures the nation overwhelmingly favors must fail if they infringe too far on state power. Thus, from the majority's viewpoint, constitutional constraints like these are necessarily burdensome.

How can a renewed focus on federalism achieve long-term stability, in the face of what will in many cases be a perception of negative impact? We believe the answer is: The same way free speech doctrine has, by attracting a broad and diverse political constituency that will support federalism out of a self-interested belief that the benefits outweigh the costs.

The Bottom Line: What, If Anything, Does Federalism Offer Liberals?

To put things simply, if crassly, we must therefore ask: What does federalism have to offer liberals, progressives, the "Blue state America" - the 49 % of citizens who voted for John Kerry for President?

The answer is: Perhaps a great deal. Today and for the foreseeable future, with a Republican President, a Republican-controlled Congress, and a Republican-appointed federal bench, the Left side of the political spectrum is pretty much shut out of the corridors of national power. As a result, the idea of state autonomy might have renewed appeal to the Liberals.

For the last seventy years or so, the Left has viewed the national government as a source of positive, progressive political change. Conversely, it has viewed federalism as little more than a constitutionalized disguise for racism or intolerance. But that may change now: If the Left is to exercise power these days, that power may have to come from the states.

Could Federalism Acquire Bipartisan Appeal? A Crucial Test Case

Thus far, however, the Rehnquist Court's "new federalism" track record has not been heartening to progressives. In key federalism cases, the Supreme Court has either struck down, or severely limited, a number of statutes supported by liberal constituencies.

On the chopping block have been civil rights statutes such as the Violence Against Women Act (in United States v. Morrison), the Americans With Disabilities Act (in Garrett v. University of Alabama), and the Religious Freedom Restoration Act (in Boerne v. Flores). In addition, gun control laws (in United States v. Lopez and Printz v. U.S.), and environmental regulations (in New York v. U.S. and Solid Waste Agency v. U.S. Corps of Engineers) have also suffered under federalism's reign.

But could federalism, in the future, be more than just a conservative rallying cry? An answer from the Court may be forthcoming very soon.

Just last week, the Court heard arguments in Raich v. Ashcroft, the case challenging the constitutionality of the application of the federal Controlled Substances Act (CSA) to the possession and use of marijuana for medical purposes. In this case, California citizens sought to implement their state's progressive law permitting seriously ill individuals access to marijuana for medically appropriate uses -- a policy that commanded the support of a clear majority of the state polity -- in the face of federal interference.

The Ninth Circuit held in Raich that the CSA exceeded Congress' authority under the Commerce Clause of the Constitution to the extent that it applied to a "distinct class of activities: the intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes as recommended by a patient's physician pursuant to valid California state law."

As a technical matter, the result in Raich may turn on how broadly the Court reads earlier precedent like Wickard v. Fillburn, the 1942 case upholding Congress' power to regulate a small-time Ohio farmer's cultivation of wheat ostensibly grown for use only on his farm. We think plausible arguments can be made on either side of this debate about the construction of key precedent.

On the one hand, the reasoning of the Court in Wickard - that Congress could regulate and limit Mr. Filburn's wheat acreage because the wheat he was growing and consuming was wheat that he was not buying on the interstate wheat market - is quite broad and favorable to the federal government. On the other hand, as some careful scholars have pointed out in an amicus brief to the Court, Mr. Filburn's "consumption" of his home-grown wheat included feeding it to his livestock, some of which he then sold in the marketplace. For this reason, Filburn's actions could be characterized as more "commercial" than those of the medical marijuana users in Raich.

But we think the Court's ruling in Raich should not be based on narrow doctrinal distinctions (to, for example, get around the Wickard case). The scope of cases like Wickard is a question that has no obviously "right" answer. The Court's reasoning in Wickard that the federal government can reach in-state activity that dampens demand for products sold in interstate commerce has to have some limits. Otherwise, the federal government could regulate darning socks - to reduce the effect of such activity on the inter-state market in hosiery. In identifying those limits, the language and facts of Wickard are of only limited help.

Rather than debating technical questions about the meaning of 60-year-old cases, the Court in Raich should instead make a deliberate and defended choice between competing constitutional visions. One critical question is this: Will federalism be defined as a neutral mechanism that provides increased immunity from federal interference for both conservative and progressive state regimes when there is no problem that really requires a coordinated national answer - no problem, that is, "among the several states" (to use the Commerce Clause's language) that needs national fixing? Or will federalism rulings instead be colored by distinctly ideological goals? How the Court acts, and how the Court explains its action, in Raich may give a strong clue.

Beyond Raich: The New Generation of Federalism Disputes

Raich is, of course, only the tip of the iceberg. Consider, for example, Oregon v. Ashcroft, where the Ninth Circuit struck down Attorney General Ashcroft's directive attempting to punish doctor involvement in physician-assisted suicide expressly permitted by Oregon state law. Although the court's ruling that the Attorney General had exceeded his lawful powers was based on a statutory construction of the federal Controlled Substances Act, there was no doubt about the role that constitutional principles of federalism played in the court's analysis. The majority opinion stated bluntly: "The principle that state governments bear the primary responsibility for evaluating physician assisted suicide follows from our concept of federalism, which requires that state lawmakers, not the federal government, are the 'the primary regulators of professional [medical] conduct.'"

Down the road, of course, state decisions about tort remedies, gay rights and abortion that may conflict with national prerogatives and values are looming.

Thus, issues going to core disagreements between liberals and conservatives on social policy and on which state law varies dramatically may reach the Court in the context of state claims asserting freedom from federal mandates. If we are correct that utility for broad and diverse constituencies plays a significant role in determining the permanence of constitutional principles, how these cases are resolved may, more than any technical doctrinal argument, foreshadow the future of federalism as a defining feature of the American constitutional system.

In a later column we will explore in detail yet another arena in which federalism may prove to be of considerable value to progressive states -- the relationship between church and state.


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author of the Cohen and Varat constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher. Alan Brownstein is a Professor of Law at UC-Davis School of Law.

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