Sunday, October 31, 2010

Weekend Rerun: Is There Such a Thing as Principled Federalism?

The commerce clause challenges to ObamaCare now making their way through the courts have reopened issues about federalism that until recently seemed settled once and for all.  Here's a (slightly edited) post about federalism from May 26 inspired by Rand Paul's public ruminations on the Civil Rights Act early in the election season:

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):
“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.”
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.

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.


Anonymous said...

I don't know my history well enough: Was a constitutional amendment even considered in 1964? I believe the Act passed with large majorities, so presumably the Amendment would have as well -- did they not think they could get 3/4 of the states? Or did they sincerely not believe they needed a constitutional amendment? (Or did they believe they needed an amendment, but figured no one would call them on it, so why take the harder route if you don't have to?)

It seems like a Civil Rights Amendment would pass with 100% support today. You'd think that "Goldwater view" federalists would have championed an amendment both then and now. By doing so now, a guy like Rand Pual could "reset" the principle of federalism while simultaneously asserting a commitment to civil rights. ("I'm so committed to the Civil Rights Act, I want to codify it in the U.S. Constitution!")

Ron Replogle said...

Goldwater carried most of the states of the old confederacy in 1964 precisely because the Civil Rights Act was already on the agenda. To get 3/4 of the states you'd have had to secure passage by at least a couple of southern state legislatures at a time when most southern African-Americans were still disenfranchised.

Anonymous said...

Thanks for the history lesson. It's hard to imagine that was the attitude a mere 50 years ago. (Maybe I should see that as a good thing: it shows that as a nation we're capable of rapid social improvement.)