One of the basic compromises embedded in the Constitution was a federalist system that gave a huge amount of autonomy to the individual states.  The original Constitution is essentially an articulation of very limited powers bestowed upon, and very significant limitations applied against, the federal government.  Those powers not articulated were reserved to the states (or the people) by the explicit text of the Tenth Amendment, and those limitations upon the powers of the federal government, encapsulated by the Bill of Rights, were thought to not apply against the states.  Since those rights we regard as fundamental today only limited the federal government, states were basically free to do what they pleased.

And do what they pleased they did.  But in the aftermath of the Civil War, the states voted to amend the Constitution, ratifying the thirteenth, fourteenth, and fifteenth amendments.  These amendments reflected a realization by the country that state governments pose just as big of a threat to individual liberty as the federal government.  In addition to abolishing slavery through the Thirteenth Amendment, the Fourteenth Amendment prohibited the states from depriving “any person of life, liberty, or property without due process of law.”

To make a long story short, the Supreme Court began using the due process clause of the Fourteenth Amendment to hold that various rights protected by the Bill of Rights against federal intrusion were now equally protected from state and local intrusion.  Nearly all of the provisions of the Bill of Rights have been “incorporated” against the states in this way.  The basic inquiry used by the Supreme Court in deciding whether a particular provision should be incorporated against the states is whether or not the right at issue is so fundamental in our system that its violation by the states constitutes a denial of substantive due process (a further distinction the Supreme Court read into the clause).  Even rights that are not explicitly addressed in the Bill of Rights have been applied against the states through the same inquiry, including the right to privacy and a woman’s right to choose.

The question that the Court will answer this term is whether the Second Amendment applies against the states.  But when the Court decided Heller in 2008, it only addressed whether the Second Amendment protected the right to own a gun in the home for self-defense, not the much broader “right to bear arms” as provided by the explicit text of the amendment.  The full scope of what sort of gun control laws would be consistent with the Second Amendment is unclear and will undoubtedly be articulated in future cases.  The law at issue in the current case is said to be identical to the D.C. handgun ban in Heller, so the Court will essentially be deciding if possessing a gun at home for self-defense is so fundamental in our system that it can be incorporated against the states through the Due Process Clause of the Fourteenth Amendment.

So what do you think?  Is this right to possess a gun for self-defense as fundamental as other rights that have been incorporated against the states, such as the rights to free speech, the free exercise of religion, the assistance of counsel, and a speedy trial?  Or is it more akin to those provisions that the Court has held not to be incorporated against the states, such as the right to a grand jury indictment or a right to a jury trial in civil lawsuits?

Levinson agrees with the book’s central thesis that the reason we have federal countries is that “negotiating units can credibly threaten to go it alone if they are not given sufficient autonomy as part of the constitutional deal.”  He further writes that the authors (Malcolm M. Feeley and Edward Rubin) have demonstrated:

that we have moved far away from anything that can seriously be described as a “federal’ system and that we are far better off for it, since there’s really nothing to be said for federalism in the absence of the cleavages about political identity that lead us, with whatever relucatance, to allow particular subunits to have their own official churches, different local languages of government, and the like.

Most of Levinson’s post argues that there are in fact little hard autonomy rights left to the states in the original Constitution.  Most of what remains to the states today under the Supreme Court’s federalism jurisprudence is not only judge-made, but a product of their political beliefs rather than any real principles of federalism.  This is certainly true considering the redefining of interstate commerce that the New Deal Supreme Court produced.  So, it seems as though Levinson not only thinks that American federalism is weak, but if given a say on a 21st century Constitution, he would probably leave very little to the states.

In any case, it’s a pretty fascinating topic and the book sounds like a great read.

In a previous post, I argued that originalism as a method of constitutional interpretation can coexist with contemporary progressive values that are often held by those who oppose originalism.  To somewhat rearticulate my point, if we have a Constitution, we ought to treat it as such regardless of how inconvenient it may be in our pursuits of social change.  However, that does not mean we can’t address whether its provisions, while supreme and unyielding law, make normative sense in the 21st century.

Perhaps the biggest theme in the original Constitution is the principle of federalism.  While the Constitution lays out a framework for the operation of a federal government, it is in large part an exception (albeit a huge one) to the general proposition that power lies with the states.  States were originally free to govern as they saw fit so long as they did not offend “the supreme Law of the Land.”  Considering (1) the Bill of Rights were not at first binding upon the states, (2) the nature of early interstate commerce (the legal basis of contemporary federal legislation), and (3) the absence of the XIV Amendment, this gave states a whole lot of room to pass a wide range of laws.

But more than any other constitutional principle, American federalism has been almost radically transformed.  The Civil War and its aftermath led to the XIV Amendment, giving the federal government the power to enforce equal protection of the laws and apply the majority of the Bill of Rights to the states.  The New Deal redefined our understanding of “interstate commerce” and hugely expanded one of the few constitutional bases upon which Congress may act.  So while the original Constitution reserved the majority of power for the states, both the XIV Amendment and the Supreme Court’s expansion of “interstate commerce” carved a huge amount of that original power from the states and essentially handed it to the federal government.

Notwithstanding its transformation over the centuries, federalism remains a huge component in our constitutional scheme.  But if we were to start a Constitution from scratch today, how would principles of federalism fit in? Is federalism the best structure for governing a 21st century America?

My initial reaction is that I have no earthly clue.  My gut tells me that regionalism and state sovereignty were more sensitive issues back then given how much more we are interconnected these days.  The fear of a strong centralized government was also fresh in the minds of the founders.  The issue of slavery exacerbated conflicts of interests among the states and they refused to succumb to the idea of a federal government capable of imposing its will uniformly upon them.  The dynamic in those days was thus radically different.

But perhaps the way in which federalism has constitutionally expanded along side modernization is an accurate reflection of the balance needed in contemporary society.  Even if states were abolished, the federal government would need to govern locally and there are still unique attributes that accompany America’s localities that warrant different laws.  So is the question then whether we want the federal government making local law or separate state governments making local law?  How do either of these situations affect the way in which localities are governed?

These questions obviously raise an enormous amount of other issues, most of which I can’t think of.  One of them is whether Congress’s power to pass laws should be largely pinned to regulating interestate commerce.  It is so easy to cite interstate commerce as a justification for passing laws because virtually everything affects interstate commerce in the abstract.  The contemporary Congress seems to pass laws that go well beyond simply regulating interstate commerce.

Let me then shut up and leave you with this question: If you were to write a constitutional provision reflecting Congress’s actual authority under the commerce clause, how would you phrase it?  In other words, what does Congress’s power to regulate interstate commerce actually empower Congress to do?