This passage in Julian Sanchez’s terrific piece on the scuffle between Rand Paul and the Civil Rights Act got me thinking about the strange place federalism occupies in our political culture. Here Sanchez’s expounding on the prevailing view of federalism in conservative and libertarian circles (my emphasis):
Rand Paul’s ill-chosen words reminded us of the political and constitutional context of the 1964 Civil Rights Act. Outside the south, the country had finally reached the conclusion that Jim Crow was morally intolerable. There was no more potent symbol of its immorality than segregated lunch counters, and the violent reactions that sit-ins by civil rights activists provoked. Left to their own devices, state political systems that effectively disenfranchised African-Americans would never do anything about it. That’s why there was ample political support for those provisions of the 1964 Civil Rights Act outlawing discrimination by private actors selling commercial services to the general public.“Liberals and progressives, for their part, should also reconsider whether the civil-rights era's expansion of federal power ought to be seen as a norm or an exception. Faced with the enormities of history, a unanimous Supreme Court stretched the constitutional power of Congress over interstate commerce to permit an attempt at a remedy. But if we recognize the circumstances of the time as exceptional—as the exigencies of war are exceptional when we consider the scope of executive power—we should be less eager to make it the basis of a general federal license to pursue any attractive end through the commerce power. At the dawn of the 20th century, we assumed that federal prohibition of alcohol could only be accomplished by constitutional amendment. With the exception of U.S. v. Lopez, a 1990s hiccup where the court failed to find a sufficient nexus between interstate commerce and carrying handguns near schools—we now take for granted that the interstate-commerce power constitutes a blank check, not just when Congress seeks to rectify gross historical iniquity, but for such purposes as overriding state decisions to permit local cultivation of medical marijuana.”
The problem was that, under prevailing interpretations of the Constitution, the United States Congress pretty clearly lacked constitutional authority to prohibit private discrimination. It was expressly empowered by the Fourteenth Amendment to enforce its equal protection provisions, but it was settled law that those provisions didn’t apply to the conduct of non-state actors. So the easiest way for the Supreme Court to uphold the private accommodation provisions of the Civil Rights Act was to stretch the commerce clause out of recognizable shape by holding that it empowered Congress to regulate private behavior in the service of noncommercial objectives. That made the foundational principle of American federalism, the proposition that the authority of the federal government was confined to the powers enumerated in Article I of the constitution, into a bit of a joke.
That dilemma invited three responses:
First, the “Goldwater view” held that, as morally abhorrent as segregation in public accommodations is, the federal government lacks the authority to do much of anything about it so we’d just have to wait for the market to make private discrimination in commercial transactions prohibitively expensive;
Second, the “liberal view” willfully reduced the commerce clause and the idea of a federal government with enumerated powers to a dead letter on the ground that only the federal government had the will and the power to root out racial discrimination and other forms of private injustice;
and Third, the “Sanchez view” held that we could have our federalism cake and eat it too. Because American federalism is too valuable to be jettisoned because of the unique historical legacy of slavery in the south, we should regard the Civil Rights Act as an exception to a still authoritative rule. Accordingly, we shouldn’t conclude from the fact that Congress retains the power to regulate private conduct to end segregation, that it has the authority, say, to outlaw gun possession in proximity to schools.
The Goldwater and liberal positions have the virtue of being “principled” in the sense that they purport to decide all cases about the boundaries between state and federal sovereignty according to the same constitutional principles. The problem is that they have very few consistent adherents. Rand Paul’s abject retreat to the Sanchez position shows that upholding the Goldwater view puts one on the outer fringe of even the conservative/libertarian community. And mainstream liberals can’t seem to resist the temptation to be fair-weather federalists; they're all for states' rights as long as the state interest in question is disconnecting Terri Schiavo’s feeding tube, or recounting ballots in Florida under a procedure that gives Al Gore a fighting chance of carrying the state. Can you think of a single instance in the last fifty years where mainstream liberals' federalist scruples prevented them from exercising federal policy in the service of a liberal objective? I haven't thought of one yet.
That leaves us all mucking around with Sanchez’s sensible, but unprincipled, pragmatism. If the Tea Partiers really mean to use their political clout to put issues of states' rights back on the table, however, unprincipled pragmatism won't do. Intellectually serious conservatives and liberals are going to have to figure out what they really think about federalism.