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The Necessary Constitutional Role Of The States

Thursday, Jul. 18, 2002

When the criticisms of the Supreme Court started rolling in, following Bush v. Gore, among the strangest - and most incorrect - was the oft-repeated claim that the Supreme Court had been hypocritical on federalism issues. In fact, the Court has been entirely consistent, and this criticism rests on a basic confusion as to what the Court's prior federalism cases meant. That confusion makes those precedents appear to conflict with Bush v. Gore, when in reality, they do not.

What the Court's prior federalism cases really mandated was not blind deference to the states. Rather, the organizing principle behind many of the Court's decisions, within and outside the sphere of federalism, has been across-the-board distrust of both federal and state governments when they wield power. The Framers would have had it no other way.

The Liberal Critique of the Supreme Court's Federalism Decisions

On a deeper level, the liberals' critique of the Supreme Court's federalism decisions amounts, at base, to the accusation that the Supreme Court has abandoned individual rights by following the states' rights path.

Only the federal government, the liberals believe, can be a trustworthy protector of civil rights. In support of their claim, they point to the U.S. Supreme Court's decision in Brown v. Board of Education and Congress's passage of the civil rights law in the 60s.

But the constitution does not give the federal government all power. Rather, it divides power between the federal and state governments. Thus, the only way to get to the conclusion the liberals favor is to ignore the text and spirit of the Constitution itself.

Liberals may claim this is justified, on the theory that the end (protecting rights) always justifies the means (pretending Congress has powers vis-a-vis the states that the Constitution does not give it.) But the Supreme Court has held, to the contrary, that the end does not always justify the means. Instead, under the Constitution, Congress has limits that it must observe regardless of the loftiness of its goals.

Why the Framers Limited What Congress Could Do Vis-a-vis The States

Why enforce these constitutional limits on the states? Besides simple loyalty to our founding document, which remains binding, there are two reasons.

First, the Framers rightly predicted that Congress would easily spin into an irresponsible, unaccountable branch. History has borne that out. For two-thirds of the Twentieth Century, the Court imposed no limits on Congress's power. The result? Congress let its agenda lengthen to epic but Sisyphean proportions, regulating everything under the sun - no matter how local or regional in character, or how susceptible to local or regional decisionmaking. Congress ended up a less effective, and more overburdened institution, and the public suffered.

As is well-known, the Bill of Rights limits the states and the federal government. (For instance, in Bush v. Gore, the federal Constitution's Equal Protection Clause limited what the State of Florida could do in Presidential elections).

What is less well-known, and less frequently observed, is that the structural requirements of the Constitution provide limits as well. By allocating power between the federal government and the States, for instance, the Constitution channels Congress's attention toward the appropriate national horizon.

Both limits - the limits of the Bill of Rights, and the limits imposed by the division on power in our federal system - increase overall liberty.

The Importance of Separating Federal and State Spheres of Power

There has never been a time when the cry for unlimited congressional power has rung so hollow. Nor has there been a time when the lax oversight of Congress's power appeared so foolhardy.

Think of the crucially important national issues on Congress's plate right now: The war on terrorism, corporate and accounting disasters affecting millions of stockholders, and a stock market lurching wildly up and down from day to day.

Think about how difficult each of these issues, alone, will be to address - and then about how difficult and important it is to successfully address them all. Then ask yourself if Congress can give these huge, decidedly national problems the serious, sustained, not-just-for-the-cameras attention they deserve - and at the same time also police every regional, state-level, and local problem in the country too.

Over the past years, federal and state lawmaking has been unnecessarily redundant. The federal government passed the Americans with Disabilities Act, and meanwhile the states have their own disability laws. The federal government passed the Violence Against Women Act, and meanwhile the states have their own policing and policing policy decisions to make. The federal government passed the Gun-Free School Zones Act, and states continue to regulate both gun ownership and schools.

Perhaps you may disagree with how your home state protects disability rights, polices itself, and deals with guns and schools. The answer is to work for change on the state level - not for the federal government to take over all of these issues.

A Dispute the Constitution Has Already Resolved, Once and For All

The liberals are willing to sacrifice the means for the end - willing, that is, to ignore the Constitution's division of power between the states and the federal government in the belief that, this way, they will achieve their asserted utopia. In contrast, the conservatives don't believe unlimited power in the Congress can lead to utopia.

How can this dispute be settled?, you might ask. The answer is that it already has been. The Framers agreed with the conservatives, and the Constitution is on their side. (Of course, the conservatives also, frankly, don't believe in the liberal utopia in any event, but that is another story.)

The conservatives' federalism jurisprudence, then, hardly exhibits a hostility to civil rights. Rather it exhibits, if anything, a hostility to unchecked power in the Congress, and a belief that the exercise of such absolute power will harm the larger public good the Constitution is designed to foster.

That hostility, and that belief, belong not only to the conservatives, but also to our Constitution. The Court's healthy distrust may be our salvation as we enter this new era of national crises.

Marci Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. Her email address is

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