Monday, August 29, 2005

I'm a federalist nobody

Jack Balkin boldly asserts that,
Nobody, and I mean nobody, whether Democrat or Republican, really wants to live under the Constitution according to the original understanding once they truly understand what that entails. Calls for a return to the framers' understandings are a political slogan, not a serious theory of constitutional decision-making.
I must now raise my hand from the back of the class and insistently plead, "I do! I do!"

Here's Balkin's case:
Many Americans fail to realize how much of our current law and institutions are inconsistent with the original expectations of the founding generation. A host of federal laws securing the environment, protecting workers and consumers—even central aspects of Social Security—go beyond the original understanding of federal power, not to mention most federal civil rights laws that protect women, racial and religious minorities, and the disabled from private discrimination. Independent federal agencies like the Federal Reserve Board, the Federal Trade Commission, and the Federal Communications Commission would all be unconstitutional under the original understanding of the Constitution. Presidential authority would be vastly curtailed—including all the powers that the Bush administration regularly touts. Indeed, most of the Bush administration's policy goals—from No Child Left Behind to national tort reform—would be beyond federal power.

Conversely, a vast number of civil-liberties guarantees we now expect from our Constitution have no basis in the original understanding. If you reject the living Constitution, you also reject constitutional guarantees of equality for women, not to mention Brown v. Board of Education and Loving v. Virginia, which struck down laws banning interracial marriage. Liberals and conservatives alike would be discomfited. The original understanding cannot explain why the Constitution would limit race-conscious affirmative action by the federal government, nor does it justify the current scope of executive power.
I mostly agree with the above passage. I'd only really quibble with Balkin about federal regulation of commerce. Intrastate commerce is constitutionally beyond the authority of agencies like the FTC, but the commerce clause obviously leaves a reduced role for the FTC in regulating interstate commerce.

Modulo this quibble, I would be quite happy to see the abolishment of all of Balkin's examples of unconstitutional federal power. To me, Balkin's list is a just a good start. While we're at it, let's end federal involvement in abortion law, and abolish Medicare, the Dept. of Education, and the Dept. of Energy, leaving these matters to the states and/or private actors, Tenth-Amendment-style.

I think it's a tragedy that federalism has been eviscerated in this country. Federalism is frequently praised for being better at accomodating diverse views on social issues like abortion, drug use, assisted suicide, embryonic stem cell research, and so on. Less frequently mentioned is that federalism can also better accomodate diverse views on issues like the size of the welfare state and of the regulatory state.

As for Loving and Brown, Balkin is implicitly arguing that the people of individual states can't be trusted when it comes to racial discrimination. Well, between the Civil War and the 13th, 14th, and 15th amendments, we indeed curtailed state power here. (By the way, some originalists (but not I, nor the non-originalist Balkin) think that Brown actually does follow from the original understanding of the 14th amendment.) Clearly, the Jim Crow laws that came after Reconstruction ended were a terrible thing. But it doesn't follow that the Supreme Court had to step in. Brown and Loving probably accelerated some changes in the South, but these changes were inevitable, e.g. the 24th Amendment.

Finally, I dislike the way the term "living constitution" is used. If a written agreement is not enforced, then it becomes a dead letter, e.g. the 10th Amendment. Therefore, a constitution should be called alive if and only if it still being enforced. In this sense, the Constitution is alive, but seriously wounded.


Blogger Kent said...

"Me, too! Me, too!"

My quibbles are:

Tadio and television broadcasts are a form of interstate commerce -- the radio waves cross state lines -- so I don't have a problem with the constitutionality of the FCC. But limit their role to auctioning bandwidth.

The ban on bans on interracial marriage was justified by the equal protection clause that is indeed found in the Constitution. Bork has shown that Brown vs. Board of Education can be reached by original understanding as well.

8/30/2005 1:38 PM  

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