An open letter to Congressional candidates about federalism and limited government

I noted Greg Goode's candidacy in the Indiana 8th here and said that I had a question for him that I'd reprint here. So here it is, a kind of open letter in solicitation of a response; I'll let y'all know if I get a reply; of course, and I'd encourage everyone to quiz their would-be representatives on their sense of the limits on their own power.

Greg,

Nearly forty years ago, in his landmark book The Conscience of a Conservative, Barry Goldwater joined issue with Arthur Larson, who had written four years earlier in A Republican Looks At His Party – expressing the then-conventional wisdom of the time – that “if a job has to be done to meet the needs of the people, and no one else can do it, then it is a proper function of the federal government.” Horrified, Goldwater rejoined that in signing on to what one might call the New Deal Constitution (and which has since been more aptly dubbed the “Constitution in Exile” by Judge Ginsburg) Larson and like-minded Republicans accepted “an unqualified repudiation of the principle of limited government[, and an embrace of] the first principle of totalitarianism: that the state is competent to do all things and is limited in what it actually does only by the will of those who control the state.” The Constitution, Goldwater warned, is “a system of restraints against the natural tendency of government to expand in the direction of absolutism”; thirty years later, Justice Scalia would echo this concern for natural tendency in his Planned Parenthood v. Casey dissent, observing that “no government official is ‘tempted’ to place restraints upon his own freedom of action, which is why Lord Acton did not say ‘Power tends to purify.’” The Court's “temptation” - and that of government generally, although usually with the best of intentions – said Scalia, “is in the quite opposite and more natural direction - towards systematically eliminating checks upon its own power....”

“Much of the Constitution is concerned with setting forth the form of our government, and its primary protections of liberty are structural - as Benjamin Franklin put it when emerging from the Constitutional Convention, the drafters gave us a republic, if you can keep it. We keep it by respecting the Constitution's structures. First among these structural protections are the separation of powers, served vertically by federalism....” Not only does federalism bear a formalist pedigree -- the recognition that “the States entered the federal system with their sovereignty intact,”1 which is a “presupposition of our constitutional structure,”2 a structure which “in all its provisions, looks to an indestructible Union, composed of indestructible States”3 (a pedigree that when elected, you will be obligated by oath to respect4) -- has inherent normative value. The states may be seen as “a means ... [to] the end ... [of] the liberty of their citizens. States are valuable alternative governments which have power because it benefits the people to diffuse power.”5 “Just as the separation and independence of the coordinate Branches of the Federal Government serves to prevent the accumulation of excessive power in any one Branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.”6

It is, of course, easy for conservatives to be for federalism and other limitations on Congressional authority when we’re in the minority or when such limitations frustrate goals that we oppose as a political matter.7 It's much harder to remain in the embrace when it means accepting that a statute we think meritorious – criminalizing an abhorrent procedure, for example8 – is beyond Congress’ power to enact and thus impermissible. Yet, “to take the benefits accorded by the constitutional system ... while denying it allegiance when a special burden is imposed ... is the antithesis of law.”9

Unfortunately, the Supreme Court has evinced but limited interest in seriously enforcing limitations on Congressional power vis-à-vis the states, with but a brief interregnum between National League of Cities10 and Garcia.11 In the latter, the court’s liberal bloc set out to reduce federalism to the status of a political question,12 announcing its intent to defer to the foxes in matters of guarding the henhouse in mostly all circumstances. The court essentially recused itself from “measuring congressional authority under the Commerce Clause,”13 blithely assuring itself that “the built-in restraints that our system provides through state participation in federal governmental action”14 and the “procedural safeguards inherent in the structure of the federal system” would be “effective[] … in preserving the States’ interests.”15

The upshot of Garcia’s quaintly pre-17th Amendment mindset (that “[t]he political process ensures that laws that unduly burden the States will not be promulgated”16), and the apparent limits of Lopez’s limited powers revival,17 is that we live in times where the inattention of the courts to the limits on Congressional power demands particular solicitude when selecting members of Congress. “Our Federalism,” wrote Justice Black, requires “a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.”18 For better or worse, Our Federalism doesn’t guarantee that the people of various states will use wisely – that is, conservatively – the independence accorded by their separate sphere (Article IV, alas, guarantees a “republican form of government,” not a “Republican government”). Nor does it guarantee, as Goldwater recognized, that Congress can right every wrong and battle every injustice; our Constitution is one where Our Congress has a limited sphere, and “a need [does not] create[] a power [to act].” “Congress and the President, like the courts, possess no power not derived from the Constitution”19; their “power and authority have no other source. [The United States and its Congress] can only act in accordance with all the limitations imposed by the Constitution,”20 and the implicit limits on federal competency imposed by a “Constitution [which] creates a Federal Government of enumerated powers … [whose delegated] ‘powers … are few and defined’"21 are no less “limitations imposed by the Constitution” than the explicit limitations – found primarily in the Bill of Rights – which we are more accustomed to thinking of as such.

So – having reached the end of what seems like quite a long scene-setting – my question for you, Greg, is, broadly-speaking, how you would reconcile the Constitutional limitations on federal power with the temptation to use that power to further conservative goals? How will you react if faced with a bill that you personally approve of, substantively, but believe (or even suspect) may be beyond the realm of the federal sphere generally, or for that matter, Congress’ power vis-à-vis other branches?22 What do you envisage your process being when in doubt?

Post facto:
What do I have against the Seventeenth Amendment? (6/16/08)
Wyeth v. Levine (3/4/2009)
AMA v. Obamacare (6/11/09)

1. 1. Blatchford v. Native Village of Noatak, 501 U.S. 775, __ (1991)
2. 2. Ibid.
3. 3. Fry v. United States, 421 U.S. 542, 549 (1975) (Rehnquist, J., dissenting) (quoting Texas v. White, 7 Wall. 700, 725 (1869))
   
4. 4. See U.S. CONST. Art VI (“This Constitution ... shall be the supreme law of the land ... [and members of Congress] ... shall be bound by oath or affirmation, to support this Constitution”)
5. 5. Althouse, Variations on a Theory of Normative Federalism: a Supreme Court Dialogue, 42 Duke L. J. 979, 980 (1993)
6. 6. Gregory v. Ashcroft, 501 U.S. 452, 458 (1991).
7. 7. See, e.g., United States v. Lopez, 514 U.S. 549 (1995) (striking down federal gun control legislation); Printz v. United States, 521 U.S. 898 (1997) (same).
   
8. 8. See, e.g., Gonzales v. Carhart, 127 S. Ct. 1610 (2007) (Thomas, J., concurring) (reserving the question of whether Congress exceeded its authority in passing a federal ban on partial birth abortion).
9. 9. Wechsler, Towards Neutral Principles of Constitutional Law, 73 Harv L. Rev. 1, 35 (1959).
10. 10. National League of Cities v. Usery, 426 U.S. 833 (1976).
11. 11. Garcia v. San Antonio Metro. Transit Authority, 469 U.S. 528 (1985).
12. 12. “A controversy is nonjusticiable - i.e., involves a political question - where there is a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.” Nixon v. United States, 506 U.S. 224, 228 (1993) (internal quotation marks omitted) (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)).
13. 13. Garcia, supra, at 550.
14. 14. Id. at 556.
15. 15. Id. at 552.
16. 16. Id. at 556.
17. 17. Compare Lopez, supra, with Gonzales v. Raich, 545 U.S. 1 (2005); I do not mean herein to cast in my lot regarding Raich’s merits (as a comparison of Justice Scalia’s concurrence and Justice Thomas’ dissent will demonstrate, that is a much closer and more complex question than is represented by those dismayed with the result), only to observe that it likely demonstreates the outer markers of Lopez.
18. 18. Younger v. Harris, 401 U.S. 37, 44 (1971).
19. 19. Ex Parte Quirin, 317 U.S. 1, 25 (1942).
20. 20. Reid v. Covert, 354 U.S. 1, 6 (1957).
21. 21. Lopez, supra, at 552 (quoting The Federalist No. 45 292-293 (C. Rossiter ed. 1961)).
22. 22. On the latter, see, e.g., Calabresi & Lawson, The Unitary Executive, Jurisdiction Stripping, and the Hamdan Opinions: A Textualist Response to Justice Scalia, 107 Colum. L. Rev. 1002 (2007) (arguing that “[w]hile the Constitution leaves Congress with the option of creating or not creating lower federal courts, it does not give Congress the option of creating or designating lower federal courts over which the Supreme Court does not, at the end of the day, have the last word”).